Deinonychus antirrhopus

Your argument would make sense if a suit for compensatory damages and a suit for compensatory and punitive damages had identical economic inputs. They do not.

It takes much time, effort and money to investigate, initiate, and present a punitive damage claim. Those inputs are in addition to the time, effort and money spent to pursue a compensatory damage claim.

If plaintiffs receive none of the punitive damage award, they are unlikely to put up the resources necessary to bring such a claim.

That said, I think that proposals to Provide the state a portion of punitive damages claims are completely appropriate. Such proposals need to be carefully crafted or will be ineffective.

As my post reports, the Georgia statute under which the state is entitled to 75% of punitive damages awards in product liability cases has produced exactly zero revenue for the state.

Dwight's right on this one. Here in Missouri, we have a statute giving 50% of a "final judgement" of punitives to the state. I'm pretty sure the fund has only received funds once - but there have been a lot of punitive damages cases settled outside of court before the judgments became final!

Punitive damages serve a valid purpose - most of the attempts to roll back their validity originate in the board rooms of insurance companies.

Punitive damages are seldom appropriate in products liability cases. Recall that products liability is often founded on principles of strict liability in the first place - a theory of liability independant of "fault".

No, Dwight is wrong again. The lawyer/person who brings a lawsuit for compensatory damages and punitive damages could and should have their costs covered as well. This eliminates the negative incentive Dwight is pointing too as a positive defense for granting some share of punitive damages.

Punitive damages serve a valid purpose - most of the attempts to roll back their validity originate in the board rooms of insurance companies.

You seem to be operating under the mistaken impression that I am opposed to punitive damages. What I am opposed to is the perverse incentives tht come about due to the givig of the punitive damages to anybody. Once you do that it creates an incentive of the part of the recipient to try and bring about more lawsuits with punitive damages.

I am not sure I understand your point.

If we tax puntive damage awards at 100% there will still be an economic incentive to sue for compensatory damages but there will be no economic incentive to spend the extra money and additional time it takes to investigate and present a punitive damage claim. The plaintiff would be extremely unlikley to include a claim for punitive damages in the complaint without some economic incentive.

You seem to be under the impression that there is no additional effort or expense in tacking a punitive damage claim onto a compensatory damage claim. If so, you are mistaken. The preparation of a punitive damage claim can involve tens of thousands of dolars in addiitonal expenses and hundreds of hours of additional lawyer time.

Why would the plaintiff and his or her counsel go to that trouble and expense without an economic incentive?

Perhaps private parties should not be permitted to pursue punitive damage awards and such cases should be brought only by the state for the benefit of the state. In other words, we could create the position of Assistant State Attorney General for Puntive Damage Awards. If the states were reasonably agressive, I could support that idea.

As long as we rely on private parties to bring punitve damage claims in order to deter bad conduct, those parties must have an economic incentive or they simply will not do it.

If we tax puntive damage awards at 100% there will still be an economic incentive to sue for compensatory damages but there will be no economic incentive to spend the extra money and additional time it takes to investigate and present a punitive damage claim.

These costs are not incurred by the plaintiff, but by the lawyers who are representing the case. If the costs of suing for punitive damages is paid for by the person or entity being sued (assuming the plaintiff wins) then there is no disincentive to suing for punitive damages.

Lets try a simple numerical example:

Compensatory damages: $100,000
Lawyers fees for suing for Compensatory damages: $10,000.
Lawyers fees for suing for punitive damages: $25,000.

Total lawyers fees: $35,000.

Now assuming the plaintiff wins, if the award is say $135,000 then there is no disincentive. The lawyer gets his $35,000, the plaintiff is made whole.

The idea of product liability was that manufacturers would then design safety into products at a level that made economic sense; they'd have to pay damages for products that failed. So they'd build in the right amount of safety, driving injury down _but not to zero_, until lawsuits balanced costs (costs ultimately to consumers, by the way).

Somebody somwhere, some jury, figured that _in addition_ the companies ought to be punished for accidents, _otherwise there would continue to be injuries_. But that was the point, and now it's gone. There's no balancing. So we have no light airplane industry at all, for instance.

So anyway punitive damages arose, and made no sense then, and make no sense now.

You're forgetting settlement incentives. If the plaintiff doesn't benefit from punitive damages, the parties will settle out of court and the state won't get anything. Punitive damages would be used only as a threat.

And those cases that do go to trial could result in enormous punitive damages awards. Say a jury is deciding a case against some large, unpopular, out of state defendant corporation. What if the jury knows that whatever they award in punitive damages is going to go to their local school system or police department? It would be a disaster.

You really haven't thought this through very well, Steve.

You're forgetting settlement incentives. If the plaintiff doesn't benefit from punitive damages, the parties will settle out of court and the state won't get anything. Punitive damages would be used only as a threat.

So what? The point of punitive damages is not to enrich one plaintiff or a group of plaintiffs over all possible plaintiffs current and future.

And those cases that do go to trial could result in enormous punitive damages awards.

I see no reason for this to be the case at all.

Say a jury is deciding a case against some large, unpopular, out of state defendant corporation. What if the jury knows that whatever they award in punitive damages is going to go to their local school system or police department? It would be a disaster.

Uhhhhmmm, no Xavier. Read my two posts again. You have simply restated my argument.

Robin Roberts:

Punitive damages are sometimes appropriate in product liability cases. The fact that compensatory damages are sometimes recovered under a strict liability theory does not have anything to do with the recovery of punitive damages.

Steve - as a client, why would I allow my attorney to pursue punitive damages if I'm not going to get anything out of it. As an attorney, why would I pursue punitives if I am only going to get my fees out of it? (Plaintiff's lawyers typically don't work on an hourly basis, and, if they did, their hourly rate in a system like you propose would have to be very high to compensate for the possibility of not recovering punitive damages.)

Dan,

Why should you be paid more than what your time is worth? Try this, go into your bosses office and tell him you should be paid twice what you are being paid otherwise you wont work.

The idea is that we don't want lawyers to go after punitive damages on the off chance they'll get rich. We want them to go after punitive damages when it is appropriate.

Do you see the difference?

I do, but I don't think you've ever tried a case and asked a jury for damages. There is always a gamble involved in taking on any case.

Try this. Go into your boss's office and tell her that you'll work for your current wages, but you'll let 12 people who don't know you decide whether you get them, and you'll let somebody smart and articulate argue that you shouldn't. Plus, you'll let the insurance industry advertise that paying you what you're worth will cause the jury's insurance rates to go up.

Or, we could let someone smart and articulate persuade 12 people you don't know to give a huge amount of your salary to someone you haven't done a thing wrong to. Because, you know, they've had a hard go of it, and you won't miss the money nearly as much as they need it.

Yes. That makes sense.

Thank goodness that's not how it works, Slartibartfast.

I do, but I don't think you've ever tried a case and asked a jury for damages. There is always a gamble involved in taking on any case.

Life is a gamble Dan. You could be hit by a bus tomorrow (heaven forbid), is your health insurance coverage up to date? The fact that there is uncertainty in the outcome does not entitle one to more money. Further, such factors should be incorporated into the lawyers fees, IMO.

Try this. Go into your boss's office and tell her that you'll work for your current wages, but you'll let 12 people who don't know you decide whether you get them, and you'll let somebody smart and articulate argue that you shouldn't.

Nice attempt to shift the topic of discussion here. The point isn't that people shouldn't face risk (we all do everyday and we manage to muddle through for the most part). The point is that simply because one faces a risk does not entitle one to money that one has not earned. The punitive damages have not been "earned" by the plaintiff no matter how awful whatever it is they have suffered. That is the compensatory damages are at least based on losses suffered by the plaintiff. Paying the plaintiff for those losses is reasonable. Paying them 10 times those losses because they took an extra trial risk is what leads to perverse outcomes.

Actually your analogy is faulty. It isn't that I go in and tell my boss that my being paid is to be decided upon by 12 people, but that I get a bonus today for the work done by others in the future. Now, if my salary is "safe" and there is a positive probability that I might win that bonus, doesn't it stand to reason I'll go for the bonus more often than not?

Thank goodness that's not how it works, Slartibartfast.

And just because you say so! Well, thanks for the update.

Steve:

If you're willing to allow for an attorney fee that reflects the risk of nonrecovery, then I agree with you that could come up with a workable system along the lines of what you propose. It would take a lot of tinkering, and a whole lot of convincing, but your system could, in fact, work, and would address the tension inherent in having private plaintiffs recovering funds designed to punish rather than to compensate.

Slartibartfast, I don't know what to say. It really, truly does not work the way you suggest. Money is not awarded without a finding of liability, and my experience is that jurors take quite seriously their duty to rule fairly. In those rare instances where a jury goes off track, judges almost always intervene.

The system is not nearly as broken as the insurance industry is trying to convince people.

Money is not awarded without a finding of liability, and my experience is that jurors take quite seriously their duty to rule fairly.

Oh, did I say something contrary to this? Please point it out and I'll retract immediately.

That "fairly" is nearly the opposite of an objective guideline shouldn't even need to be mentioned.

Actually "the system" is more broken than the insurance industry is attempting to convince people. The very idea of assigning punitive damages within the products liability regime to rational business decisions makes that clear.

Slartibartfast - "give a huge amount of your salary to someone you haven't done a thing wrong to."

Robin - Do you disagree with punitives in the context of a rational business decision not to do a recall of a helicopter part because it would be more expensive than paying off a few wrongful death cases? How about where drug risks are intentionally misstated, as part of a rational business decision?

Slartibartfast - "give a huge amount of your salary to someone you haven't done a thing wrong to."

Well, ok. That should probably be amended to "give a largish chunk of your cash reserves to someone you haven't done a thing wrong to". Why do I have this feeling you're going to tell me that doesn't happen?

Slartibartfast:

The problem with your statement is the thought that you'd be giving it to someone you haven't done a thing wrong to. All product liability require injury and causation.

All product liability require injury and causation.

I didn't realize we were constraining the conversation to product liability, but there's some obvious exceptions to causation. Like, the tobacco industry. Have they harmed anyone? Certainly not. They've provided products that people can harm themselves with, to be sure. But they've not harmed a soul. And it's not as if those who did harm themselves didn't realize the risk. The ill-effects of smoking have been known for decades re the specifics, and for the better part of a century in general.

If you're convinced of a causation in that case, I'm going to suggest that you don't understand what the word means.

Sorry, Slart, I confused you with Robin, who did focus on product liability - but you managed to state your case even within my mistakenly narrow frame of reference.

We disagree on the culpability of the tobacco industry. They lied and hid information for years. They concealed the full effect of their dangerous and addictive product.

It's not clear to me why it's even relevant how dastardly and underhanded they were. The thing is, the dangers of tobacco use have been well-known since before the Surgeon General mandated addition of the warning label. Which was (just reaching into what's occasionally write-only memory here) something like three decades ago. So unless there was some conspiracy that I'm unaware of, in which Big Tobacco managed to get tobacco blessed by the Surgeon General, the warning label removed, and the health risks posed by using tobacco expunged from every library and medical publication in the country, I maintain they've not harmed anyone.

Unless, in the course of things, they had some folks bumped off. But that'd be a criminal issue, and not a civil one.

This silly blogger thinks that "lawsuits" waste resources, confusing the cause for the effect.

On my first day of law school the Dean remarked, "If people were good and honest and lived forever, you wouldn't be here."

The cause of the waste of resources is the lack of good, dishonesty, greed, and mendacity of people generally and corporate America in particular.

Given that people have never been and will never be totally free of evil, dishonestly, greed, and mendacity, the "Rule of Law" requires lawyers, judges, courts, juries, etc.

If this blogger were intellectually honest, he would call John Ashcroft and DOJ "waste of resources," but he doesn't because (one assumes) he at least understands that we must spend a certain amount fighting evil, dishonesty, greed, and mendacity.

This bloggers problem is that he is evil, dishonest, greedy and full of mendacity, so he has sold himself out to the corporate world, and has become a cog in the wheel evil, greed, and mendacity.

The fact is that corporate america and our courts now spend more time and legel fees and costs on intra corporate litigation than is spent on personal injury litigation. Until this blogger attacks as waste all the patent and trade mark cases, the thousand of suits by the recording industry against downloaders, the anti-spam suits, I could go on and on and on, his is nothing but dishonest, intellectually and otherwise