If you want to get punitive damages for your client, you need to hone your argument to the jury and prepare yourself for common sticking points. And don’t forget to remind the jury of the deterrent effect of punitive damages or, as they say in England, “the sting of the shilling.”
The jury sits not only to determine facts, but also to determine punishment. There’s no set standard for applying punitive damages, but the jury should consider the amount of punitive damages that will have a deterrent effect on the defendant in light of
- the defendant’s financial condition;
- the degree of reprehensibility of defendant’s conduct; and
- the reasonableness of the relationship between punitive damages and actual damages.
When arguing for punitive damages for your client, be prepared to do the following:
- Combat a defendant’s sudden show of sincerity. Focus the jury’s attention on the reprehensibility of the conduct. A common but effective analog is the story of the thief who, on being caught, demonstrates deceptive remorse and decides to return his ill-gotten gain. Remind the jury that punishment still justifiably lies ahead for the thief.
- Explain the relativity of money. While you’re urging the jury to sufficiently punish the defendant, you may find yourself in the predicament of requesting a monetary award beyond the comprehension of the lay juror. Use the “theory of the relativity of money” to give the jury a way to conceptualize otherwise intoxicating figures. Present the jury with the story of an individual defendant who has a net worth of $10,000. Clearly, the argument goes, a punitive damage assessment of 10 percent, $1000, would not seem excessive. Similarly, a 10 percent of net worth assessment against a large corporate defendant would appear to be reasonable.
- Stress the leeway on the relationship between punitive and actual damages. The jury is asked to consider a reasonable relationship between actual and punitive damages, but they’re given great latitude in this regard. In fact, California courts have approved a wide range of punitive damages awards from 200 times actual damages (Wetherbee v United Ins. Co. (1971) 18 CA3d 266, 95 CR 678) to two times general damages (Austin v Duggan (1958) 162 CA2d 580, 328 P2d 224). The desirability of advancing an argument based on a relationship between punitive damages and actual damages is dependent on the size of the compensatory damage figure. But don’t be constrained in argument by a relatively small claim for actual damages; rather, concentrate on the wealth of the defendant and the necessity to adequately punish or make an example of the defendant.
- Ask for a strong message. Be prepared to accentuate the exemplary nature of the punitive damages award by emphasizing the prevention of future harm by the defendant as well as by other potential malfeasants. An appeal to a juror’s sense of civil responsibility, by requesting that the jury “send a message,” has frequently provided the desired result. The “send a message” theme correlates with the assertion that a punitive damages award would benefit the public by discouraging oppression, fraud, or malice by punishing the wrongdoer.
Want further practical advice on how to argue for punitive damages? Turn to CEB’s Persuasive Opening Statements and Closing Arguments, chap 8.
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