Some interesting thoughts on punitive damages

I have to admit that I don't spend a lot of time reading other attorney's blogs, but I do enjoy reading California Punitive Damages, even though the firm is often on the oppose side of my appeals. Well, knowledge can come from the most unlikely sources.

In a post from December 18, 2009, the authors cite an article on "The Need for Enforcement of U.S. Punitive Damages by the European Union." (See http://calpunitives.blogspot.com/2009/12/need-for-enforcement-of-us-punitive.html.) They also reference an article from the New York Times written by Adam Liptak, who points out that many European nations refuse to enforce U.S. punitive damages award because these countries believe that the singular goal of civil litigation should be the compensation of plaintiffs, and not to punish the defendant. They prefer to leave punishment for criminal proceedings.

In the article, which can be found at http://www.nytimes.com/2008/03/26/us/26punitive.html?_r=3&scp=1&sq=%22punitive+damages%22&st=nyt&oref=slogin, Liptak reports that the Italian Supreme Court refused to enforce a $1 million dollar award against a helmet manufacturer. He wrote, "The court said that a peculiarity of American law - punitive damages - was so offensive to Italian notions of justice that it would not enforce the Alabama judgment."

Apparently Italy is not alone in its opinion. The Italian court felt that punishment should be restricted to the criminal justice system with "its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators."

Apparently when the rest of the world sees a huge punitive damage award, it looks down on the United States with disfavor, because it gives a jury composed of laypeople broad discretion in awarding punitive damages. In addition, while the media is quick to report an award of huge punitive damages, it doesn't always follow-up to see how those damages might have been reduced after trial.

Punitive damages have been around longer than I have and they are frequently requested in civil cases. We have such little faith in "government safety regulators" and believe that American juries are far more "disinterested" - for better or for worse - than many prosecutors. Punitive damages are often the only means of sending a message to big corporations to stop doing something that is either fraudulent, oppressive, or malicious. Would these governments feel the same way about smaller punitive damage awards against individuals who commit wrongful acts?

Now we find ourselves in a battle to restrict the amount of punitive damages to be awarded against a defendant, and that battle frequently shifts from the jury room to the appellate courts. Some believe that appellate courts shouldn't interfere with an award of punitive damages except under limited circumstances while others believe that such awards should always be scrutinized by the courts.

But what about the concept of doing away with punitive damages altogether, leaving that task to criminal courts? I wish I had more faith in our justice system, because I think if punitive damages were eliminated or reduced to a small amount (such as a 1:1 ratio with compensatory damages), big corporations would not feel the sting of disapproval and there would be no deterrent effect to their bad behavior. Sometimes a civil lawsuit, with a plaintiff acting as a "private public prosecutor" is the only way to get the message across.