Monday, May 24, 2010

Punitive Damages

I am a believer that both the British and US systems of jurisprudence have their merits. However, one aspect of Civil Law in the US troubles me. It is about punitive damages.

The theory of this feature is easy to understand. If I drive my car into yours and damage it, I'm clearly responsible for repairs, any depreciation in value, and the loss of use when your car is being repaired. The same applies to any injuries incurred by you as a result of the incident, and the law properly allows for such matters as "pain and suffering". If you (as Plaintiff) claim that I have recklessly or maliciously caused the damage, you may choose to claim "punitive damages" in addition. The idea is to punish me for my behavior.

This is where it gets murky. It has been held that, to be appropriate, such damages must take into consideration the wealth of the offending party. Thus, an oil company or other wealthy corporation must pay huge punitive damages, for a small penalty would be a slap on the wrist, or "a mere flea bite" as a British schoolboy would say.

In civil litigation, about which I have some knowledge through my experience as an expert witness, punitive damages are often alleged as an additional bargaining chip, and awards are relatively rare, although certainly not unknown. (I guess that I should explain that my experience has largely been with California litigation, although I have also been involved in cases in Colorado and Nevada.)

Often, claims for punitive damages blur the distinction between civil law and criminal law. I see civil law as a system primarily designed to assure equity in our common life, whereas in criminal law the malefactor is properly subject to punishment.

I realize that some who are reading this may be qualified lawyers, which I am not. There is little prospect that punitive damages will be eliminated in the foreseeable future, so I need to accept them. I just believe that there needs to be some work on this issue if a heavily divided Congress, full of lawyers, ever takes serious action on Tort Reform.

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