Punitive Damages: Strategies for Trial and Appeal; Statutory and Constitutional Boundaries

This CLE course will equip both plaintiffs and defendants with the tools necessary to handle punitive damages issues on trial and appeal. The spectre of punitive damages looms large when injury is involved. Counsel must understand both the applicable substantive state law as well as the constitutional backdrop and must develop effective trial strategies to persuade juries either that a serious wrong must be righted or that no punishment is warranted.

A jury may award punitive damages when the defendant's conduct meets some heightened standard of culpability, which varies--at least in wording--from state to state. Phrases like "conscious disregard," "willful and wanton," "reckless indifference," and the like appear in statutes or judicial decisions, but only real-world experience can help give meaning to these phrases.

Proving or defeating punitive damages requires three victories: winning the initial phase of the trial, winning the punitive damages phase of the trial, and challenging or defending the outcome in post-trial motions and on appeal. Winning at trial--either as plaintiff or defendant--requires knowing what evidence is admissible and persuasive. The legal and tactical questions play out against the backdrop of constitutional limitations on punitive damages.

A victory, of course, is not a victory unless it can be collected. Counsel should consider whether a finding of intent will mean that insurance will not cover the award. Further, many statutory schemes require at least some portion of the damages to go to the state, not the plaintiff.

Listen as our seasoned panel speaks to issues concerning plaintiffs and defendants and provides vital knowledge as to how to prove and uphold the client's desired result.