Punitive damages should go to the state, not the plaintiff

OP returning here.

I think Pravnik’s got it in post 19. In formulating the question I left the concept of settlement completely out of consideration. :smack:

I think that they are. No cites here, but I personally believe that they contribute to the decline of personal accoutability in this country (US).

The idea of lawyers making money does not upset me. I hope to be one (a lawyer) myself in a little under three years. But plaintiff’s lawyers (a not-so-big percentage of the attorney population) drive the litigiousness in the US higher and higher every day. I dread the dystopic future where every slightest discomfort triggers a lawsuit. {Insert hyberbolic example of your choice here.}

Our society is increasingly based on torts because plaintiff’s attorneys seek out increasingly minor injuries to pursue for litigation. And why shouldn’t they? The current system makes it in their best interest.

Anyway, back on topic: are there any reasonable ways to get around the settlement issue? Are arbitrary damage caps still the best anyone can come up with?

I hate damages caps - the people who they hurt most are those who have the most derious injuries. You cap at $2 million and the person who loses a pinky finger gets $2 million, as does the child who suffers serious brain damage in delivery and is going to need 24/7 care for the rest of its life.

My solution is two fold - to the insurance companies, grow a pair. Fight these claims. The reason some plaintiffs lawyers can bring these cases is that they can get an early settlement, and reap the 30% of it. Make the plaintiffs lawyer spend the money and go to court. Then when the case is tossed, they are out of pocket. Yes, the insurance company will have to pay to defend themselves, but fight a few and create a reputation of not being a pushover and deter many future suits.

The second solution is in the Federal Rules of Civil Procedure already. Beef up the enforcement of sanctions for genuinely frivolous complaints. Start awarding attorneys fees to the defense in outrageous situations. Especially in cases with statutory triple damages, as those provide a greater incentive to roll the dice on a lawsuit that has no merit.

Good luck in law school - that must be starting up next week or so I guess? Where are you going?

If your case for punative damages not going to the plaintiff rests on the premise that frivolous are endemic to our civil suits then you’re going to have to come up with something a little better than “I think that they are.” Then you’re going to have to show a connection between punative damages and frivolous suits and then explain how changing the way punitive damages works is going to prevent frivolous suits from going to court.

Ok, so what’s your evidence that this is the case and where’s your argument that we should change punative damages?

Shouldn’t it be the job of the jury to make these decisions on a case by case basis?


It’s a shame that a number of states haven’t tried this concept already. Then, we could look to empirical evidence to determine whether allocating a portion of punitive damages to a state compensation fund would reduce the number of marginal lawsuits. It would also be interesting if some states were to eliminate punitive damages altogether, so that we could see whether that had an effect on the number of lawsuits brought there, and whether it affected the number of businesses relocating to those business-friendly states.

Oh, wait…

(Indiana, Oregon and Michigan off the top of my head.)

Two points, both of which have been raised implicitly if not explicitly in the thread: punitive damages are an incentive to a plaintiff to seek to right a wrong, and an incentive to a lawyer to take on the case. Lawyers work for money, the same way teachers, plumbers, and astrophysicists do.

So in a case where compensatories are low but punitives have the potential to be high, both a plaintiff and his lawyer have an incentive to sue (“to right a wrong”) that they wouldn’t otherwise have, and thereby (potentially) create new law/ make the world a better place / stop an abuse, or what have you. And I’m torn on that point; there is, in my opinion, abuse in the system. And lawsuits get filed that shouldn’t, only because there is the potential for a big payout (someone mentioned a 10:1 punitives to compensatories ratio, but the reality is that ratios much different – 60 or 80 to 1 – also have been approved). But if we took away the incentive for people to sue in marginal cases, where does that leave us?

So … what happened?

You are right - they have. Kennedy (I think) never actually came out with a hard rule that 10:1 was a cap, but instead said courts would look very strongly at ratios greater than that. I’m getting more and more certain this was in State Farm, so I should probably look it up when I get home. He did also, IIRC, state that there might be certain cases where a significantly higher ration would be justified, such as where a company willfully inflicts small levels of injury on large numbers of people. I cannot remember if it was in the case or came up in tort class discussion that a good example was a motel chain that had bed bugs and deliberately chose not to do anything about it.

The case you’re thinking of is Mathias v. Accor Econ. Lodging, 347 F.3d 672, 677 (7th Cir. 2003).

Yes - thank you very much, Richard Parker. Good old Posner, where else would we turn for decisions so blatantly disrespectful of the Supreme Court…

In my experience, which is somewhat limited since I don’t do personal injury cases which is where most of the so-called frivolous punitives are, I don’t think there is a huge problem with frivolous lawsuits.

If the lawsuit is frivolous, then it won’t be awarded any damages, compensatory or frivolous. If they are awarded damages, then I would argue that the lawsuit is not frivolous.

From my limited experience, I’ve seen insurance companies fight even worthy claims tooth and nail since their lawyers are inhouse and thus their costs in fighting are somewhat limited to the Plaintiffs attorneys. Also, a large company can simply drive up the costs of litigation to force the plaintiff into settlement.

Another consideration that I’ve seen in cases based in contract law is that it often isn’t worth it to litigate a case worth $10,000.00. The reason being is that by the time that you finished the trial, you’ve spent almost ten thousand in legal fees. In a personal injury settlement, it would be an equivalent to a “personal injury freebie.”

I don’t want the state benefiting from its own prosecutions. As others have said, that makes them partial. And if you don’t think it would be abused, I’ve got about 3,000 traffic cameras in our city I’d like to sell you… Or you could look at the excesses in police departments when they get to keep the proceeds from seizures.

So how to punish the company? Here are some out-of-the-box ideas:

  • Give the money to the company’s competitors. You could argue that the people hurt other than the defendent are the competitors to the company who can’t compete because they aren’t negligent. So take the 50 million, and divide it up among the competitors in proportion to market share.

  • Actually punish the company. Instead of making them write a cheque, force them to close the store that was negligent. Or force them to raise the price of their products a certain amount so their competitors gain market share from them. Do something that erases the competitive advantage they gained through cutting corners irresponsibly.

Thanks. :slight_smile: Yup: two weeks from tomorrow. Temple.

You’re absolutely right, and when I posted that I failed to remember that this was in GD. I retract my statement that was based on personal feelings/observations.

However, I assumed it was a foregone conclusion that frivolous lawsuits hurt our legal system. Recent theads on the evils of frivolous lawsuits and/or the increasingly over-litigious nature of US society:

Whether this is the case is, I suppose, fodder for another GD thread. Wikipedia on that subject.

But I think my argument (wrt changing punative damages helping the problem) is, to be explicit, the following:[ul][li]Justice does not dictate that the injured party should recieve more than compensatory damages. That’s the definition of ‘compensatory.’ []The greater the reward for pursuing lawsuits, the more lawsuits will be pursued, and it follows that the merit of the average lawsuit will begin to decline.[]Redirecting punitive damages (and thus the bulk of the reward) away from plaintiffs and their lawyers would maintain justice while reducing the amount of meritless litigation.[/ul][/li]
However, I should reiterate that I had not taken the practice of settlement into consideration when forming my OP. Settlement throws the idea completely out the window.

Isn’t it considered bad form to be snarky and rude in GD without any information to back up your claims? I’m with Aspidistra here: What did happen? What does the empirical evidence indicate?

They’re better ideas than I’ve come up with, but unfortunately, I think they both fail against the concept of out-of-court settlement.

I applied to Temple, Randy Seltzer, and ended up in the twilight zone over them requiring me to have my transcript professionally translated (from British English) at a cost of about $400. By then the Vandy offer had come in so I never bothered.

Torts class, depending on who teaches it, will answer a lot fo these questions. You can’t ignore settlement effects - so few civil cases go to trial these days it is totally central. And also compensatory damages, even without the payment to the attorney, don’t actually fully compensate, as there are restrictions on what is covered.

Torts was far and away my favorite first semester class, and probably the best of the first year, though Crim pushed it close.

I’m really intrigued by the idea, but there is one aspect of it that bothers me: essentially holding all plaintiffs to compensatory damages reflects the outcome of the damage done to the plaintiff, but doesn’t reflect the degree of negligence inflicted upon the injured party.

Let’s say we have two patients, X and Y. They’re being operated on by doctors A and B. Both X and Y die on the table; but in the first case, Dr A simply did not see on the patient’s chart that X was allergic to some drug or another, really an honest mistake. So X’s family sues for the doctor’s negligence, and barring any punitive damages, is awarded some amount of money.

Now the reason Y died was that Dr B was high on PCP, and as a result made enormous errors that are so disgusting and heinous that I need not elaborate for fear that I may get a case of the vapours.

I simply have a hard time seeing that the family of Y doesn’t have a stronger case for compensation for woefully reckless acts, whereas in the other case, the doctor just made an honest mistake and those things sometimes happen during surgery. For some reason I cannot yet fully put into words, it seems that the death of Y was entirely needless but for the depraved acts of a doctor, and therefore Y’s family has a better claim to additional compensation.

Can someone explain why I should be wrong?

The argument (with which I am not fully in agreement) would be that the harm to the patient, or to the surviving family, is the same. Now you can first argue that the pain and suffering involved in losing a loved one to the actions of a drugged out doctor are greater than that of a simple accident, but that would only be tangential to the main damages.

It’s not a good example for punitive damages in that it isn’t like the junky doctor would go unpunished in that situation. That’s a clear case of homicide of some variety, and the doctor would end up spending an extended vacation in some state facility.