what should my lawyer do to defend punitive damages

In a case involving punitive damages, it is vitally important that the defense attorney conveys to the jury, from the very first time the venire enters the courtroom until the time that the jurors are released from jury service, that defense counsel is committed to the defendant’s cause.

Full Answer

How can a defense attorney avoid a punitive damages award?

Your Brownsville defense lawyers can, and should, focus their energy in challenging the sufficiency of the plaintiff’s evidence for pursuing punitive damages. Why? Because, under Texas law, a plaintiff must provide “clear and convincing evidence” that the defendant’s conduct was grossly negligent, rather than proving it by the preponderance of the evidence.

How should defense counsel handle a punitive damages claim?

Apr 03, 2001 · In order to avoid a highly damaging punitive damages award, the defense attorney must focus on the punitive aspect of the case from the day the file is opened. All too often, the punitive damages claim is one of the last things the defense attorney’s considers, when it should be one of the first.

Can I get punitive damages in a personal injury lawsuit?

You will very rarely want to defend punitive damages with silence. You must give the jury a reason not to award punitive damages, even if it decides that your client caused the plaintiff harm and must pay compensatory damages. And you must start thinking about how you are going to defend punitive damages the moment you find out that you are

Do punitive damages apply in a breach of contract case?

Apr 03, 2001 · Defense counsel must clearly explain the purpose and legal limits of the punitive damages remedy, and demonstrate why punitive damages should not be awarded. To ignore the punitive damages issue, or to fail to draw out the particulars of the defendant’s conduct and the applicable law, is to court disaster.

How do you defend against punitive damages?

Exemplary affirmative defenses include the following:Statute Of Limitations: ... Statutory Limitations On Punitive Damages: ... Status Of Parties: ... Compliance With State Or Federal Statutes/Regulations: ... Common Law Privileges: ... Provocation: ... Acting On Advice Of Counsel: ... Constitutional Challenges:Apr 3, 2001

What is the standard of proof for a punitive damages award?

Punitive damages may only be awarded if the plaintiff proves by clear and convincing evidence that his or her harm was the result of actual malice. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.

Are punitive damages a legal remedy?

Punitive damages are legal recompense that a defendant found guilty of committing a wrong or offense is ordered to pay on top of compensatory damages. They are awarded by a court of law not to compensate injured plaintiffs but to punish defendants whose conduct is considered grossly negligent or intentional.

Under what circumstances might a punitive damage award be unconstitutional?

The Court also established in BMW a three-part test for determining whether a punitive damages award is unconstitutional: (1) the reprehensibility of the defendant's conduct, (2) the ratio of punitive damages to actual harm, and (3) the size of the award vis-à-vis the statutory sanctions for comparable misconduct.Apr 8, 2013

In which of the following cases might a court award punitive damages?

In the case of tort liability, courts may choose to apply punitive damages. However, they will typically only do so if the plaintiff can prove that the defendant engaged in an intentional tort and/or engaged in wanton and willful misconduct.

What is one argument given against the awarding of punitive damages?

Larger punitive damages awards may be justified if there are aggravating factors, such as intentional misconduct, repeated misconduct, fraudulent conduct, concealment of evidence or lying, misconduct by a fiduciary, or a continuing course of misconduct.

What is the defense called against intentional wrong torts?

Defense to an Intentional Tort: Self-Defense You have the right to take reasonable steps to prevent injury to yourself. While "self-defense" can be raised as a defense to criminal acts, it's also a defense to some intentional torts.Mar 29, 2017

How often are punitive damages awarded?

However, statistical studies by law professors and the Department of Justice have found that punitive damages are only awarded in two percent of civil cases which go to trial, and that the median punitive damage award is between $38,000 and $50,000.

Which of the following is true of punitive damages?

Which of the following is true of punitive damages? Punitive damages are awarded if the motive of the defendant is proved to be malicious or fraudulent.

What three 3 Things Must a Court consider in reviewing punitive damages?

To ensure that unconstitutional punishment is not imposed in the form of punitive damages, the Court has set forth three "guideposts" for courts to consider in reviewing punitive damages awards: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm ...Jul 27, 2016

Is punitive damages a cause of action?

California law allows you to recover punitive damages when you can show that your injuries were caused by someone's malice, oppression or fraud, typically in cases of intentional harm or extreme recklessness. The purpose of punitive damages is to punish the wrongdoer and to deter dangerous conduct.

Which case held that the 8th Amendment does not apply to punitive damages?

Kelco Disposal, Inc., 492 U.S. 257 (1989), in which the Court rejected the notion that the Eighth Amendment's prohibition on excessive fines could apply to punitive damages awards in civil cases, or O'Gilvie v.Jul 17, 2007

What happens if you anchor a jury?

If it meets those two requirements, the jury may use the anchor to mitigate the sky-high anchor the plaintiff certainly provided. Otherwise, two things can happen: (1) the jury will start their negotiations with the plaintiff’s anchor, and (2) your anchor may backfire so that it becomes more evidence that the defendant just doesn’t get it and therefore needs a high punitive damages award.

What is the first decision you will likely have to make in a civil case?

One of the first decisions that you will likely be forced to make is whether to seek to bifurcate the punitive damages determination in your case . The right or ability to bifurcate, and what a bifurcated proceeding looks like, varies widely by jurisdiction. So, you will want to make sure you understand the rules at the outset of the litigation. But the question, in essence, is whether you want the jury to determine everything at once, or whether you want some separation between the liability determinations (to be decided in Phase 1) and the punitive liability determinations (to be decided in Phase 2).

What are jury instructions?

So, jury instructions—especially instructions that tell the jury to focus on the conduct that harmed the plaintiff and not to punish for harms to other people —can be powerful tools to use in closing argument as you try to convince the jury to focus on your evidence and not perhaps sexier evidence the plaintiff is offering that may have nothing to do with your plaintiff.

Do you have to consider punitive damages when bifurcating a trial?

So, you need to make sure that you consider punitive damages when you select your jury. Choose wisely.

Can you defend punitive damages with silence?

You will very rarely want to defend punitive damages with silence. You must give the jury a reason not to award punitive damages, even if it decides that your client caused the plaintiff harm and must pay compensatory damages. And you must start thinking about how you are going to defend punitive damages the moment you find out that you are facing (or may be facing) a punitive damages case.

Why do courts award punitive damages?

If the harm inflicted by the defendant is difficult to estimate financially, or the defendant's actions were particularly reckless, the court can also award punitive damages as a way to punish the defendant and discourage similar behavior. Sometimes punitive damages are also awarded when compensatory damages seem insufficient to make up for ...

When are punitive damages awarded?

Sometimes punitive damages are also awarded when compensatory damages seem insufficient to make up for the defendant's behavior. Punitive damages are awarded at the discretion of the court, though they are limited by some laws and judicial precedents. Learn More About Damages >>.

What is punitive damages?

Punitive damages, or exemplary damages, are awarded to a plaintiff in addition to compensatory damages as a way to punish the defendant for a purposeful or especially negligent action. They are the legal system's method of discouraging future bad behavior by making it financially harmful to the defendant.

How much did Dewayne Johnson get in the Roundup lawsuit?

In a highly publicized lawsuit over Monsanto's globally used Roundup weedkiller, a jury initially awarded Dewayne Johnson $39.25 million in compensatory damages and $289 million in punitive damages. According to his Roundup lawsuit, Johnson developed non-Hodgkin's lymphoma as a result of exposure to the popular weedkiller, and a jury verdict agreed.

Which amendments require due process?

Due Process. Mentioned in both the Fifth Amendment and the Fourteenth Amendment of the U.S. Constitution, requires the use of "fair procedures" prior to depriving a citizen of life, liberty or property; used to prevent unreasonably high punitive damages awards.

What was the verdict in the Ethicon lawsuit?

Medical device manufacturer Ethicon faced a verdict of $2.5 million in compensatory damages and $17.5 million in punitive damages in a 2017 hernia mesh lawsuit. Margaret Engelman had received an Ethicon mesh implant to treat her stress urinary incontinence. Not only did it fail to treat her condition, but the mesh also broke apart and eroded into several different parts of her abdomen. Three separate surgeries failed to retrieve all of the pieces of the mesh, leaving Engelman with chronic pelvic pain, urinary dysfunction and scarring.

What year did Sherr Una Booker get an IVC filter?

Sherr-Una Booker received an inferior vena cava (IVC) filter in 2007, but it broke apart within two years, lodging fragments in her heart and spine. She endured invasive, dangerous surgeries as a result and was left with a portion of the device still lodged in her inferior vena cava.

What is exemplary damages?

What Are Punitive Damages? Punitive damages, also known as exemplary damages, are awarded by a court as a form of punishment to the wrongdoer. They often serve as a means to deter others from engaging in the same wrongful actions.

What is extreme negligence?

Extreme negligence in a medical malpractice case, such as performing the wrong surgery or leaving a surgical implement in the patient’s body. Conduct that is extremely dangerous and exposes the public to a high degree of harm (such as taking out a weapon in a crowded place).

Is there a cap on punitive damages?

There is no maximum dollar cap for issuing punitive damages. However, this does not mean that plaintiffs are entitled to claim as much as they want for punitive damages. The requirements vary from state to state.