REMEDIES || Proving and Disproving Punitive Damages

Proving and Disproving Punitive DamagesAuthor(s): John D. KitchSource: Litigation, Vol. 21, No. 2, REMEDIES (Winter 1995), pp. 13-17, 72-73Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759757 .

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Proving and Disproving

Punitive Damages

by John D. Kitch For all manner of trespass, whether it be for ox, for ass,

for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both

parties shall come before the judges; and whom the

judges shall condemn, he shall pay double unto his

neighbor.?Exodus 22:9

As you read this, somewhere in America a punitive damages lawsuit is walking into a lawyer's office. Some poor soul has suffered an injury, real or imagined, and wants to sue. The soon-to-be client may never have heard of punitive damages, but if the lawyer can convince a jury that the alleged wrong? doer deserves punishment, the client (and the lawyer, too) may be on the road to financial independence. An award of

punitive damages could start a business, buy a house, pay for

college for the kids. The potential client is looking to the

lawyer to finance the future. At the same time, the soon-to-be defendant is in his or her

lawyer's office, hoping to avoid financial ruin. Compensat? ing the plaintiff for his or her claimed loss is serious enough, but the idea of a huge punitive damages award is terrifying.

As Rodney King could tell us, a punitive damages award is a sometime thing. Whoever would have thought, after see?

ing the now-famous videotape, that a jury would refuse to award punitive damages in Mr. King's case? On the other

hand, how many defendants have been horrified to hear a

jury grant punitive damages in a case where (according to the

defendant) there was utmost good faith, reasonable care, and no liability? Winning or losing a punitive damages case seems as uncertain as rolling dice; throw a seven and you

win, throw snake-eyes and you lose. Still, for each side there are ways to better the odds, beginning with an understanding of where they came from and what they are.

Giving more to a victim than he actually lost in order to

punish the wrongdoer dates back at least as far as 2800 B.C. and the Babylonian Empire, where a depositor of goods or

money wronged by the depository was entitled to the pay? ment of double the amount of the deposit. Under the Code of

Mr. Kitch is a partner with Kitch & Garman in Nashville, Tennessee.

Hammurabi, about 2000 B.C., a judge who altered a judg? ment previously rendered was required to pay a 12-fold

penalty. In 1400 B.C., Hittite law required the thief of a

"great" bull or horse to repay 15 bulls or horses. The Hindu Code of Manu, Greek and Roman codes, the Hebrew Covenant Code of Mosaic Law, and the Christian Bible all

recognized the principle of punishing the wrongdoer beyond merely compensating the person claiming a loss. Punitive

damages have been with us now for nearly five thousand

years, and, while many challenge their continuing legitimacy as part of our jurisprudence, there is no reason to believe that

they will be departing anytime soon.

Multiple damages have been recognized in the English common law as far back as the thirteenth century, and were

imposed in tort cases under theories of deterrence, justifica? tion for otherwise excessive verdicts, and, although not

expressly stated, revenge. The concept translated directly across the Atlantic to the colonies and was discussed in the United States as part of established common law in Coryell v. Colbough, 1 N.J.L. (Coxe) 77 (1791), where they were awarded for compensation and for "example's sake" in a breach of promise suit.

The U.S. Supreme Court acknowledged the common law doctrine of punitive damages in 1851, stating in Day v.

Woodworth, 54 U.S. (How.) 363, 371 (1851), that ". . . in actions of trespass and all actions on the case for torts, the

jury may inflict what are called exemplary, punitive or vin? dictive damages upon a defendant_" As recently as 1989, and then, in 1991, the Supreme Court sustained the doctrine in the face of constitutional attack under the Excessive Fines Clause and the Due Process Clause of the Fourteenth Amendment, respectively. Like it or not, punitive damages are an integral part of our system of legal remedies. Most jurisdictions in the United States currently recognize

punitive damages as a vehicle for deterrence and punishment in tort cases, but generally not in contract disputes nor in cases for the violation of statutory obligations. They have been char? acterized as "exemplary damages," because they make an

example of a defendant; "punitive damages," because they

Litigation Winter 1995 Volume 21 Number 2



punish the defendant; and "vindictive damages," because they exact revenge upon the defendant. Some jurisdictions even call them "smart money," because they make the defendant smart (in the sense of pain, not intelligence).

Proving punitive damages is hard. The current trend is to disfavor punitive damages as a remedy. For example, many courts have eliminated gross negligence as a basis for award of punitives, reasoning there should be some sort of intent

requirement before a person is punished. Further, courts

increasingly resist giving the plaintiff a windfall just because she was lucky enough to have a defendant who merits pun? ishment. Some commentators suggest that punitive damages should not go to the plaintiff at all, but rather to the govern?

ment or some other agency, thereby accomplishing the dual

goal of punishing the defendant without giving the plaintiff damages more than required to compensate her for the loss sustained.

In the face of these philosophical obstacles, the plaintiff's lawyer must establish that the defendant's conduct is worse than merely legally wrong and is frequently held to criminal law definitions of malice, fraud, and intent. Many jurisdic? tions mandate a higher burden for establishing entitlement to

punitive damages, requiring "clear and convincing proof rather than the standard preponderance of the evidence. Even where this is not the case, judges who try both civil and crim? inal cases may unconsciously think "beyond a reasonable doubt" because of the criminal-like definitions.

The otherwise perfect high-dollar punitive damages action may run headlong into a legislative preemption of such an award, as in statutory treble damage consumer pro? tection actions. And, if the basic claim sounds in contract rather than tort, punitive damages generally are not allowed.

A plaintiff's proof of punitive damages begins with decid?

ing whether to ask for them. Claiming punitive damages in a

questionable case can create doubt in the fact-finder's mind as to the legitimacy of the underlying claim for compen? satory damages or injunctive relief. A weak case rarely improves with a punitive damages claim, but a good one can suffer because of it. When in doubt, a plaintiff's attorney should defer the decision until discovery gives reason to believe that the case will profit from making a punitive dam?

ages claim, and it should be added through an amended

pleading if appropriate. The plaintiff must consider the impact of the doctrine of

respondeat superior. If an insolvent truck driver violates

company policy, ignores the instructions of her employer, and is an unfeeling, uncaring brute, and her wealthy employer is totally innocent of conduct justifying the impo? sition of punitive damages directly, what then? In some juris? dictions, the servant's ill conduct can be imputed to the mas? ter, but in others it cannot. The concept of punishment for bad conduct militates against punishing the otherwise inno? cent employer directly because of the employee's prohibited conduct, but if that's the only place where the money is, what should the plaintiff's counsel do? The plaintiff's lawyer must know the jurisdiction's rules in this regard.

Nearly all jurisdictions require entitlement to compen? satory damages before punitive damages may be awarded, although some permit them if injunctive relief is granted. The philosophy of punitive damages is that there must be some violation of the plaintiff's legal rights?a legal injury?for which he has suffered a loss before punitive damages are permissible. There is no cause of action just for

punitive damages. In many jurisdictions, an award of nomi

nal damages is insufficient as a matter of law to support puni? tive damages, while in others nominal damages will support an award of punitive damages. What constitutes "nominal

damages" is generally left to the trial court's discretion. A careful plaintiff's attorney should not try to bootstrap some ethereal legal right with no real monetary remedy into a multi-million dollar punitive damage claim, because in most instances it is counter-productive to try. Prudence dictates

waiting for a better case. Also consider the impact of a punitive damages claim on

the prospects of settlement. Even if the case otherwise war? rants punitive damages, the plaintiff's lawyer may improve her chances of settlement by filing without a punitive dam?

ages claim and amending the complaint later. Discretion in

asking for this relief may be the better part of valor. If the defense lawyer perceives that the plaintiff, or the plaintiff's lawyer, is greedy or dishonest, settlement becomes more dif? ficult, and an unrealistic punitive damages claim can give these impressions. Secondly, a defense lawyer can smell a

lawyer's reluctance to try a flimsy case if, in the defense

lawyer's experience, the case was filed to be settled and does not merit the punitive damages claim asserted. Next, higher demands beget a higher resolve to fight. No client, insurance

company or defense lawyer wants to be seen as an easy mark, nor do they want to submit to what they perceive to be

legal extortion. Next, what success have similar claims had in the jurisdiction? The defense lawyer knows, and is

unlikely to settle for more than the norm. Another crucial factor for the plaintiff's consideration is

that coverage under many insurance policies dematerializes when intentional, evil acts are alleged in a complaint. Many policies have exclusions for intentional conduct. It is not uncommon for an insurance company to reserve its rights when such allegations are made, thereby potentially eliminat?

ing the deep pocket. The plaintiff will need to allege alterna? tive theories, such as recklessness, and seek a general verdict from the jury. In such a case, the policy may cover punitive damages. Further, many insurance policies attempt to prohibit payment of punitive damages, but the prohibition must be clear; some jurisdictions allow punitive damages to be paid from insurance unless the policy expressly excludes them.




If coverage is an issue, the defense lawyer should begin thinking about special verdict forms even at this early stage. Unfortunately, this raises conflict of interest issues; if the true client, the defendant, benefits from coverage, but the insurance company paying the lawyer's fees benefits from an absence of coverage, the lawyer must proceed cautiously, perhaps even recommending co-counsel for the defendant to

preserve his rights in the event of an excess judgment. Before filing suit, the plaintiff's attorney should realisti?

cally look at the likelihood of collecting the giant judgment he hopes to earn. If there is no insurance, or if it doesn't cover the request made, is the defendant able to pay a puni? tive damages award? If not, why bother asking for them? If so, will you be giving the defendant more reason to resist? There is hardly more incentive for a defendant to fight than when losing destroys the defendant. Cornered rats are the most dangerous. If merely obtaining compensatory damages is sufficient, the plaintiff should leave a defendant an out.

A big danger in seeking punitive damages is that the plain? tiff's attorney may raise the client's expectations to an unre? alistic level. What began as a quest for justice may turn into a thirst for vengeance, or, worse, a desire to retire on the pro? ceeds of the case. Explaining to the client why the million dollar claim turned into a five-dollar judgment can be embar?

rassing. It can also lead to a malpractice claim. If the plaintiff's lawyer decides to ask for punitive dam?

ages and has conducted an appropriate Rule 11 investigation to satisfy herself that there is a valid basis for the claim, it is time to draft the complaint.

First, forget about notice pleading. If the plaintiff is to sur? vive a motion to dismiss the punitive damage claim, let alone a motion for summary judgment, the complaint must lay out the bad facts there for everyone to see. The plaintiff's attor?

ney must concentrate on delivering this message to a judge and jury.

Anything that makes the defendant look malicious, unfeeling, or uncaring is useful. Include in the complaint all the facts showing that the defendant is an evil person, recit?

ing whatever tends to establish legal and actual malice, intentional conduct, gross negligence, fraud, or whatever else satisfies the legal requirements of the jurisdiction. This is not a time to be bashful or modest; spell out the facts in detail. Besides, Rule 9 requires it in the case of fraud, and

many courts apply the same standard to the other tests nec?

essary for an award of punitive damages. Further, this is the time to set the tone for winning the case. The plaintiff's lawyer must let everyone know that he believes in the claim, since a defense lawyer, a judge, or a jury can sense weakness

through a lawyer's self-doubt. The defense lawyer should consider appropriate motions

after the complaint is served, such as moving for dismissal of the punitive damages claim under Rule 12, or in an appropri? ate case, under Rule 56. Even though enough may have been

alleged to support liability and the underlying compensatory damages claim, eliminating the punitive damages claim is still feasible. First, has a prima facie case for punitive dam?

ages been alleged? If not, dismissal is appropriate. In many jurisdictions, the standard for punitive damages is clear and

convincing proof. If the facts that are alleged in support of an award of punitive damages are not strong or do not establish a prima facie case for them, move for dismissal. The higher standard of proof will invariably work in your favor.

A tool that is used all too infrequently is the offer of set?

tlement, although its relative usefulness varies among juris

dictions, based upon whether attorney's fees are involved. There is no limit on offers of settlement, and the first should be considered even before filing an answer. In the federal

system and some state jurisdictions, the offer of settlement cuts off subsequent costs, including attorney's fees, if the outcome at trial is better for the offeror than what he or she offered. In other jurisdictions, attorney's fees are not included in the definition of costs, and the ultimate court costs therefore are not as significant. However, even in those

jurisdictions excluding attorney's fees as part of the costs, the thought of paying for the other side's thirty-seven depo? sitions is a factor to consider. Further, many jurisdictions now seem to be moving toward including attorney's fees as costs for the purposes of an offer of settlement in order that the offer have a truly significant impact.

An offer of settlement can be a tool for both the plaintiff and the defendant, especially since in many jurisdictions a

rejected offer is admissible at trial during the punitive dam?

ages phase. What better way to show the defendant's good faith and the plaintiff's greed than to show that the defendant made a reasonable offer to settle in the early stages of the

dispute? Similarly, the plaintiff can make the defendant look terrible if she rejects a reasonable offer made shortly after the

complaint is filed. Also, the plaintiff may get lucky and have the defendant accept the offer, giving the plaintiff the money immediately instead of years down the road.

In answering the complaint, the defense lawyer should

negate the facts alleged and include all arguable affirmative defenses.

The first, best defense to a punitive damage award is to

keep the issue from the jury entirely. Is there some statutory prohibition, or at least a limit, on the award of damages over and above those required to compensate the plaintiff for the

wrong suffered? Sometimes a limit of treble damages, as in

many consumer protection cases, is a lifesaver. Also, don't let a plaintiff bootstrap what is essentially a contract claim into a tort claim. In most jurisdictions, if the gravamen of the

complaint sounds in contract, punitive damages are unavail? able as a remedy.

Raising Affirmative Defenses Read Rule 8 carefully. Include all affirmative defenses that

make sense. Failure to state a claim is the best bet, based

upon the higher standard of proof for entitlement to punitive damages. The good faith of the defendant, the bad faith and bad conduct of the plaintiff, and statutory limitations on

punitive damages all should be raised in the answer, since failure to do so generally prohibits raising them later.

Pretrial discovery is probably the biggest single area for

creativity in proving and disproving punitive damages. First, the plaintiff's lawyer is looking to establish the bad facts.

Has the defendant done similar malicious, reckless things before? Is the historical relationship between the plaintiff and defendant such that the defendant can be made to appear vindictive? Did the defendant show a complete disregard for the plaintiff's problems? Did she fail or refuse to take reme? dial measures to prevent similar occurrences in the future? Did she fail to take remedial measures after similar injuries in the past? Whatever proves the defendant's liability for

punitive damages must be established in discovery. The defense should use pretrial discovery to challenge the

factual basis for punitive damages every way she can. Develop proof that the defendant was acting in good faith. Establish the absence of intentional, reckless, grossly negligent, fraudulent




or malicious conduct by the client. Dig for proof of bad con? duct by the plaintiff. Any fact that mitigates against an award of punitive damages is literally money in the bank.

A great incentive to settlement at this stage exists in the

plaintiff's ability to discover the defendant's assets. Beyond the relevance of a defendant's ability to pay, often a defen? dant will negotiate with more vigor when he realizes that

personal financial information is going to be discussed for all the world to hear. A defendant gets shaky when the potential for a substantial punitive damages award is driven home by inquiry into the ability to collect. Nothing leads to reason? ableness more than the fear of financial disaster.

Beyond discovery's impact upon settlement, it is impera? tive that the plaintiff establish the defendant's financial con? dition. Given that the philosophy of punitive damages is to

punish the defendant, the jury is entitled to know the extent of the defendant's wealth so that jury can decide what puni? tive damage amount is substantial enough to punish. What a small-time wrongdoer finds onerous may just be a nuisance to a wealthy individual or large corporation. But be aware, however, that there are limits. Usually the plaintiff can only discover the defendant's net worth, not her gross earnings. The rationale is simple: net worth more accurately estab? lishes the defendant's true financial status, and the defendant

may be unduly prejudiced by proof of high gross earnings which do not correctly reflect the defendant's actual financial condition. Further, many courts limit how far back the finan? cial discovery may go, often restricting such discovery to two or three years before the incident being litigated.

A good tactic for the plaintiff is to make the defendant commit to his financial status early in the discovery process. Even an honest defendant's natural inclination is to minimize her financial health, and a crooked defendant may just plain lie. Once the defendant is committed, however, the plaintiff can obtain financial statements given by the defendant to obtain loans or other financing from lending institutions. Such documents invariably extol the defendant's financial

well-being, and once produced the conflict between the doc? uments and the previous testimony can be devastating to the defendant's credibility and protestations of good faith.

As the defense lawyer, resist discovery of financial infor? mation either by obtaining a protective order that this dis?

covery not be had because a prima facie case doesn't exist or

deferring the discovery until a case for punitive damages is

actually proved. Some states provide for bifurcation of the trial into a liability/compensatory damages phase and a puni? tive damages phase; move to bifurcate and argue to the court that the requisite discovery should not be had until after the first phase has established a basis for such an award. At the least, ask for a protective order to put the information under seal until an appropriate time. When the judge permits such

discovery, the defense lawyer must make certain that the defendant doesn't fudge the numbers; if the jury thinks the defendant is a liar nothing good can happen at trial.

Motions in limine can be a defense lawyer's best friend in

punitive damages cases. Even if prior motions for protective orders in the discovery stage have been denied, move to pro? hibit any reference to financial status until the appropriate time during the trial. Many courts will be sympathetic to

waiting on discovery of financial matters until a prima facie case for punitive damages has been proved. Imagine as a defense lawyer the impact on a jury of no discussion of puni? tive damages in voir dire, opening statements or in the case in chief, even if proof regarding the punitives comes in later.

In cases with multiple defendants, the defense lawyer rep? resenting a defendant less culpable or poorer can benefit from a motion in limine to confine proof of punitive damages to the other defendants. If such a motion is successful, the plaintiff may suddenly come back to the negotiating table once the

prospect of punitive damages against a given defendant, espe? cially one with deep pockets, has been eliminated. Addition?

ally, it improves the protected defendant's chances on appeal if the plaintiff isn't too careful in his proof or arguments con?

cerning punitive damages against the other defendants. If the issue of punitive damages has survived to the time of

trial, both plaintiff and defendant must be handle the issue well on voir dire. This is the first chance for the lawyers to influence the jury, and care must be taken not to lose them. Can the juror punish a wrongdoer? Can the juror award a big number? Alternatively, can the juror look beyond sheer wealth of the defendant and still find in favor of that defen

Even an honest defendant's natural inclination is to minimize her financial health, and a crooked defen? dant may just plain lie.

dant if the facts justify such a finding? The plaintiff's attor?

ney must remember that she still has to prove liability and the entitlement to compensatory damages to get to punitive damages, and must not forget to discuss these issues. On the other hand, anything the defense lawyer can do to focus the

jury away from liability for punitive damages can only help. Opening statements will not differ substantially in approach

between plaintiff and defendant. The plaintiff should discuss the defendant's indifference, active disregard or actual intent to cause the plaintiff's injury. He should also emphasize the need to punish the defendant and discuss how much it will take to do so, given the defendant's wealth. Conversely, the defendant emphasizes the plaintiff's bad conduct, the plain? tiff's own bad faith, and anything mitigating the award. The defendant can also plant the seeds of the plaintiff's greed. Fur? ther, the defendant can discuss the differing burdens of proof

which may exist, emphasizing the high burden for the estab? lishment of an entitlement to punitive damages.

In jurisdictions permitting bifurcation of the trial when

punitive damages are requested, the job of the plaintiff's attor?

ney is more complicated. In Tennessee, for example, the ini? tial phase of the bifurcated trial requires proof of liability, compensatory damages, and an entitlement to punitive dam?

ages before the plaintiff even gets to the issue of how much should be awarded to punish the defendant. If the first phase establishes the entitlement, the second phase begins immedi?

ately after, in which the jury is asked to set an amount of puni? tive damages.

Therefore, at least initially, punitive damages must take a back seat to the basics. Liability on the underlying claim must be proved as in any lawsuit, but cases abound where a

hungry lawyer was so focused on the lure of big money that she short-changed proof of basic liability. Similarly, the

plaintiff must prove actual damages, often more than merely




nominal, or entitlement to injunctive relief in the jurisdic? tions where that serves as a predicate. Otherwise the plaintiff never gets to the punitive damages issue. Therefore, the

lawyer representing the defendant must begin by attacking the plaintiff's case just as in any lawsuit, demonstrating an absence of liability and damages.

Finally, proof of entitlement to punitive damages is neces?

sary, over and above proof of basic liability. The entitlement to

punitive damages depends upon persuading the jury that the facts of the case require punishment of the defendant. The

plaintiff's burden of proof often is higher for entitlement to

punitive damages, frequently rising to a clear and convincing standard. Additionally, it is often necessary to establish ele?

ments as fraudulent, reckless, malicious, or intentional con? duct. Many courts hold the plaintiff to a near-criminal standard in the proof of these elements, and the plaintiff cannot rely on the level of proof used to establish basic liability.

Proof of fraudulent conduct generally requires proof of the traditional elements of fraud. The plaintiff must establish an intentional misrepresentation of an existing, material fact or the creation of a false impression in order to mislead the

plaintiff or to obtain an undue advantage. She must also establish that the plaintiff was injured because of a reason? able reliance upon that misrepresentation. Proof of inten? tional conduct must include evidence that the defendant had an actual objective or desire to engage in the conduct or cause the result. Malicious conduct frequently is defined as motivation by ill will, hatred or personal spite. Proof of reck? lessness requires evidence that the defendant was aware of, but consciously disregarded, a substantial and unjustifiable risk to the plaintiff such that its disregard was a gross devia? tion from acceptable norms.

The plaintiff's attorney must establish that the defendant

engaged in such reprehensible conduct that letting him out of the courtroom with a full wallet would be a dereliction of the

jury's sworn duty. Contrast the severity of the defendant's

injury with the ease with which it could have been prevented. Establish that the defendant was callous and unfeeling by proving the defendant knew how dangerous the condition or conduct was, but ignored it. Show examples of prior similar

injuries and the absence of any effort by the defendant to cor? rect the condition. There is nothing quite so exciting to a

plaintiff's lawyer as watching a jury look at a defendant as

though she placed dollars ahead of safety. The defense has several ways to defeat the punitive dam?

ages claim at trial beyond simply negating the plaintiff's proof. If the defendant can show that the plaintiff is a more

disgusting person than the defendant, it can be devastating. Remember, however, that juries rarely like defendants who

try to excuse their conduct by assassinating the character of the plaintiff. The jury may well punish the defendant more

emphatically if it believes the smear tactic is nothing but another example of the defendant's degenerate character.

The defense attorney must try to prove the absence of evil intent. Let the defendant express her sadness over what hap? pened to the plaintiff, expressing sorrow over the terrible harm inflicted. Show the efforts the defendant made to cor? rect the circumstances causing the harm, both before and after the incident. At this point, the "I didn't realize" defense can be very attractive.

Once liability, compensatory damages, and entitlement to

punitive damages have been established, the plaintiff needs to go for the gold. Proof of the defendant's immense wealth is a good beginning point, and, if the plaintiff's lawyer has

done his homework, this should be simple and straightfor? ward. A good tactic is to equate the amount the plaintiff is

requesting to something that makes it easy for the jury to jus? tify the requested award. For example, show that die amount

requested is less than that necessary to have remedied the condition, avoiding the harm entirely. Another stratagem is to show that the cost of the defendant's country club mem?

bership, or his luxury car or boat, or the vacations she took this year, are substantially more than the amount sought. Punishment and deterrence must be real to be effective?let the jury understand that big money to average people is noth?

ing to rich ones. Other financial factors relative to the amount of the puni?

tive damages award may include whether the defendant knew of the amount of harm the plaintiff suffered and whether the defendant took appropriate steps to minimize the harm; whether the defendant made a profit from the conduct

causing the harm; whether the defendant has been subjected to other punitive damages awards for similar conduct in the

past, and how much; and the absence of any effort by the defendant to make a prompt and fair settlement once the harm became known to the defendant.

The defense needs to show that there is no need to punish the defendant. Prove that the compensatory damages claim is

more than enough to make the defendant suffer. Establish the defendant's contrition, promise it will never happen again, and hope for the best. Failing this, prove that the amount nec?

essary to punish the defendant is much less than what the

plaintiff is asking. Show good faith offers to remedy the mat? ter before the case was filed. Usually proof of negotiations is inadmissible, because they imply an admission of liability.

Once liability has been established, however, the rationale for refusing to admit them is gone, and they are probative as to whether the defendant should be punished less severely.

There are conflicting positions among the courts concerning whether a poor defendant who has a lot of insurance can prove

(Please turn to page 72)




new laws and rules for lawyers to func? tion with as part of the Republican "reform." But don't take my word for it. Get a copy of the "Common Sense"

Act and read it. If it passes?and the

political commentators say it will? then we'd better be familiar with it or at least familiar with the telephone num? ber of our malpractice carrier. 10

Opening

Statement

( Continued from page 2)

ing Committee's recommendation to reinstate a pilot project in civil pro? ceedings, but urge that the Judicial Conference also institute a pilot pro? gram allowing cameras in federal crim? inal trials as well. I also strongly favor the televising of United States Supreme Court arguments. Those who have had the opportunity to witness the Justices in action know that it is one of the most

intellectually challenging and thought? ful experiences in our society. The

exchanges between counsel and Jus? tices like Douglas, Brennan, and Scalia are high drama, matching any TV offers. Why not open those high level

proceedings to the public at large? There is a strong public policy favor?

ing openness of judicial action.

According to Professor Charles Nesson of Harvard Law School, there is wide?

spread acknowledgement of the value of television in making a public trial

truly public. One such value is in edu?

cating the public about the judicial sys? tem, thereby preserving public confi? dence in its fairness and legitimacy. As Professor Nesson states, "To do justice, courts must be seen to do justice. To hide the process implies lack of belief in its worth." There is some evidence that televising trials accomplishes these

goals. A 1989 study of the effect of

viewing a televised trial found viewers of the trial became more knowledge? able about the judicial process and did not become less confident in the judi? cial system, despite the fact that the trial involved a poor person losing to a

large corporation. Another value that is furthered by

televising courtroom proceedings is that of preserving the integrity of the

process. Clearly, the knowledge by all

participants that the proceedings are

being televised will help to keep the

proceedings open and upright. The harsh glare of direct public scrutiny will help yield such a benefit. As the United States Supreme Court observed in Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), "Openness enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confi? dence in the criminal justice system."

Opening the justice system to public view by television also provides "thera?

peutic value." As the Press Enterprise court acknowledged, oftentimes the pub? lic experiences outrage and hostility

when exposed to violent crimes, which in turn provokes a community urge to retaliate and have justice done. The Court stated that "When the public is aware that the law is being enforced and the criminal justice system is function?

ing, an outlet is provided for these under? standable reactions and emotions."

Keeping the Media Honest

Finally, the televising of trials will serve to keep the media honest. It is

certainly obvious to me that the televis?

ing of a trial will seriously diminish the media's ability to influence public per? ception of judicial proceedings through the use of leaks, rumors, opinions, gos? sip, speculation, innuendo, and the like. Cameras in the courtroom certainly do a better job of telling the public what's

going on than the rumors. I do not mean to suggest that there

are not legitimate concerns about

allowing cameras in the courtroom. For

example, witnesses could alter testi?

mony to play to an audience; witnesses

might feel chilled or intimidated by the

presence of cameras; witnesses may experience increased levels of nervous? ness; subsequent witnesses might view

prior witnesses' testimony; and trial

participants may be distracted. Yet, there is some reason to believe

that critics of televised courtrooms over? state the impact of these problems. First, the use of current audio-visual technol?

ogy can prevent cameras from being a

physical distraction. The technology exists for the use of one small, fixed cam? era, that could be operated by remote control, thus obviating the need for a "cameraman" to be physically present.

Studies have suggested that the ner? vousness witnesses experience as a result of the presence of television

cameras is actually less than the ner? vousness intrinsic to trial proceedings, such as direct and cross-examinations and the ability to recall details of a crime. Additionally, there is an indica? tion that the camera's presence may result in qualitatively better witness

performance.

Third, the courts could be given the

power to prohibit television coverage of a witness's testimony where that wit? ness refuses to testify on camera for whatever reason, be it a concern for pri? vacy or safety.

Fourth, the courts certainly have the

power to instruct jurors and other wit? nesses not to view televised coverage of the trials in which they are partici? pants. This is no different than the courts' current practice with respect to

newspaper or television news reports. The studies certainly are not conclu?

sive regarding the potential adverse effects of cameras in the courtroom. However, because of the manner in which such studies must be conducted, it is likely that there never will be con? clusive studies on television's impact.

But we cannot ignore 47 states' favorable experience with courtroom cameras and the Federal Judicial Cen? ter's generally favorable report on the

pilot program, so I join those who ask the Judicial Conference to reconsider its refusal to allow cameras in federal courtrooms and urge the adoption of a

pilot program for cameras in federal criminal proceedings. 10

Proving and

Disproving (Continued from page 17) that she is poor. Those who permit such

proof use the rationale that punitive dam?

ages are not to punish the insurance com?

pany but the wrongdoer, and that the award will more accurately reflect pun? ishment of the defendant based on his

personal financial status. The jurisdic? tions prohibiting proof of poverty oper? ate on the theory that punishment must

truly punish, and basing the amount on the defendant's actual worth without

regard to insurance will have no effect on the deterrent.

Jury instructions are important in all cases, and no less so in cases requesting




punitive damages. The plaintiff must

simplify the case for the jury as much as possible, since these cases are fre?

quently complicated and confusing. Therefore the instructions requested should be concise and plain. On the other hand, the defendant may benefit from more detailed instructions, espe? cially with regard to differing standards of proof. In cases involving multiple defendants, the less culpable defendant is particularly challenged to write instructions clarifying the respective roles of the defendants.

Usually, the plaintiff will want a gen? eral verdict. This eliminates the possi? bility of an inconsistent verdict, thus

enhancing the likelihood of sustaining a

punitive damages award on appeal. On the other hand, the defendant must decide whether she should submit a spe? cial verdict form on all the issues. If there are multiple defendants, the one less reprehensible will benefit from

forcing the jury to consider her client

separately. Also, using a special verdict form will require the jury to make a series of specific itemized conclusions before awarding punitive damages, thereby lessening the likelihood that the

jury will simply decide it doesn't like the defendant and stick her with a big judgment with no real justification. Of course, if the jury answers all the ques? tions adversely to the defendant, there is little likelihood for success on appeal.

Post-trial motions are generally required as a predicate for appeal, but

they are rarely effective in altering a

jury's award of punitive damages. This also holds true for appeals. The granting of punitive damages is highly discre?

tionary, and courts generally are reluc? tant to alter the amount. Usually, there

must be a judicial dissatisfaction with the underlying basis for the award for the court to disturb it. The best attack is not to the amount, but the entitlement to

punitive damages in the first place. Punitive damages are a long-stand?

ing remedy under our common law, but have been the subject of sometimes bit? ter debate for nearly as long. Indeed, the opening sentence of a recent United States Supreme Court pronouncement on the issue states that "[TJhis case is

yet another that presents a challenge to ? punitive damages award." Pacific

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 4, 111 S. Ct. 1032, 113 L.Ed 2d 1

(1991). Lawyers are limited only by their imaginations in proving and dis?

proving punitive damages, and the

clever and creative lawyer will serve his or her clients well by continuing to

explore new ways to present punitive damages issues. The doctrine survives intact and remains a remedy to be taken

seriously. Just ask Captain Hazlewood of the Exxon Valdez. 10

Trial

Notebook

(Continued from page 58) that story again?from the expert's point of view.

Hearing the facts from the viewpoint of the expert highlights key points the

jury might otherwise miss?and it adds

credibility to your side of the case.

Use Exhibits Blackboards, overhead projectors,

computerized reenactments, charts, maps, slides, videos?all make expert testimony more real and more interest?

ing. As a rule of thumb, you want your expert pointing something out on an exhibit every five to ten minutes. Not that you need a new exhibit every five to ten minutes?you don't want over?

kill. But you don't want your expert to sit still for very long either. So get him off of the witness stand and in front of the jury every five to ten minutes.

Create Visual Images You want the expert to tell what hap?

pened by presenting a series of vivid

snapshots that make the case come alive. You already know that the best

way to do this is find a great expert. All

right, you say, what's the next best

thing you can do? How you ask your questions makes

all the difference. First, you should use words that tell the jury that the witness is a teacher?someone who can guide them through the thickets of informa? tion in the case.

Use words like teach

explain demonstrate

interpret untangle decipher help us understand educate us about

Avoid words like indicate elucidate

explicate expound amplify enlarge upon elaborate

augment our understanding of

Second, actually ask the witness for visual images by the way you put your questions:

Q. Could you show us what hap? pened?

Q. Help us see this through your eyes.

Q. Could you give us a picture of how that works?

Q. Could you illustrate?

Q. Would you describe? You will like the results you get from

questions like these. First, asking for visual images naturally produces vivid answers. Second, those same words

also encourage the jury to "see" the facts for themselves?and "seeing" what any witness has to say makes it more believable. Q

Legal

Lore

(Continued from page 56)

cousins, who operate under the not

always benign standard of New York Times v. Sullivan. As these two cases show, history is certainly better served

by a focus in libel trials on the truth.

The Aftermath July 4, 1941. Lord Alfred Douglas

was no longer angry. He looked down at his copy of the Daily Mail and found, prominently featured, the sonnet he had

recently submitted, entitled Winston Churchill:

Not that of old I loved you over? much

Or followed your quick changes with great glee While through rough paths or harsh hostility You fought your way, using a sword or crutch

To serve occasion. Yours it was to clutch




Documents

REMEDIES || Proving and Disproving Punitive Damages