November 13, 2015

The pitfalls of requesting a specific amount of punitive damages

This Reuters report about a Florida appellate decision highlights an interesting dilemma for attorneys seeking punitive damages.  The report notes that a $30 million punitive damages award was reversed because it exceeded the amount requested by the plaintiff.  That's not the first time we have reported on a reversal of that nature.  (See this report about another Florida opinion.)

Some trial lawyers reading those stories might conclude that they need to ask for a sky-high amount of punitive damages, a request so outlandish that it is guaranteed to exceed whatever the jury might reasonably award.  Indeed, some lawyers seem to employ that practice.  A few years ago, when we reported on a case in which a lawyer asked for $2.5 billion in punitive damages, we noted there is research showing that the most significant predictor for a large punitive damages award is a large request.

But of course, asking for too much carries its own risks.  If a lawyer asks for an absurdly high amount and gets it, that too creates a likelihood of a reversal. This creates a sort of Catch-22 for plaintiffs' attorneys in punitive damages: if you ask for little or too much, either way your request can create a basis for reversal of punitive damages.  Perhaps the answer to this problem is not to request any specific number at all.  In some jurisdictions, courts have actually prohibited plaintiffs from "anchoring" the punitive damages award by requesting a specific number.  Defendants are usually the ones seeking to bar that practice, but perhaps plaintiffs' counsel should consider whether a specific request is going to hurt more than it will help.