• When the Supreme Court declares something unconstitutional how exactly does that get enforced and how long until the law is taken out of the code that law enforcement officials use?
• In general it seems like the more money you have, the better the lawyer you’ll have, the greater the likelihood that you will never be convicted of anything for which you’re arrested. Do you think this is true? What efforts are being made to make sure there is equal representation between the rich and poor?
• When suing a company for negligence (let’s say “gross negligence”) how much of a factor does teaching the company a lesson play into assessing damages (assuming the company is found guilty)? Does the judge/jury get some discretion as to whom or what the damages get awarded and in what proportions?

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In general it seems like the more money you have, the better the lawyer you’ll have, the greater the likelihood that you will never be convicted of anything for which you’re arrested. Do you think this is true? What efforts are being made to make sure there is equal representation between the rich and poor?

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When suing a company for negligence (let’s say “gross negligence”) how much of a factor does teaching the company a lesson play into assessing damages (assuming the company is found guilty)? Does the judge/jury get some discretion as to whom or what the damages get awarded and in what proportions?

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Generally juries have some discretion in handing out punitive damages. If the tort is something especially egregious, then the jury may have wider discretion to hand out huge punitive damages that is disproportionate to the actual harm suffered by the plaintiff.

I believe in many states judges can reduce the amount of punitive damages awarded by a jury. In some states there are legislative guidelines specifying the amount of punitive damages allowed in certain types of tort cases.
 

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Posted by UofUlawguy (Member # 5492) on :
 
JNSB:"When the Supreme Court declares something unconstitutional how exactly does that get enforced and how long until the law is taken out of the code that law enforcement officials use?"

Such laws do not necessarily have to be removed from the books, so to speak. They simply will not be enforced in the future. If an attempt to enforce them were made, any lawsuit filed in response to the enforcement efforts would follow the S.Ct. precedent and invalidate the action, perhaps levying penalties on the enforcing body.

JNSB:"In general it seems like the more money you have, the better the lawyer you’ll have, the greater the likelihood that you will never be convicted of anything for which you’re arrested. Do you think this is true?"

To a certain degree, yes. There is some correlation between money and the quality of legal representation available, especially when comparing expensive private attorneys to publicly funded prosecutors or public defenders. But this is not necessarily so. High-priced attorneys can be bad attorneys, and low-paid public attorneys can be quite good at what they do.

JNSB:"What efforts are being made to make sure there is equal representation between the rich and poor?"

Well, the same rules apply to each. Money doesn't let you supersede the rules, so there is some leveling of the playing field in this way. However, I see no practical or even desirable way to ensure that a poor person's attorney is just as skilled as a rich person's attorney.

JNSB:"When suing a company for negligence (let’s say “gross negligence”) how much of a factor does teaching the company a lesson play into assessing damages (assuming the company is found guilty)? Does the judge/jury get some discretion as to whom or what the damages get awarded and in what proportions?"

There are several different categories of damages. The kind of damages you are referring to are usually called "punitive" damages, although there are other terms that are sometimes used. These damages are above and beyond any compensation the plaintiff may actually be due as a result of their injuries. The idea behind punitive damages is to punish for behavior that is to be discouraged in the future, for public policy reasons. By statute, punitive damages are only available in certain kinds of cases. You can't ask for them in most run-of-the-mill cases of simple negligence, for example.

Statutes can also limit the amount of punitive damages that can be obtained, often capping them at some multiple of the general damages awarded. Otherwise, punitive damages are generally completely up to the discretion of the judge/jury. If the amount is really outrageously high, it may be reduced on appeal.
 

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Posted by Dagonee (Member # 5818) on :
 
Additional points on damages:

1.) Whether punitives are allowed can depend on the defendant's culpability. As pointed out above, most (all??) states do not allow punitives on negligence. Some (most??) do not allow punitives for gross negligence. Most (all??) allow punitive damages for recklessnes (wilful disregard of a known danger) and intentional torts. That's why many cases that look like negligence get fraud claims added - fraud is intentional - or "bad faith" tacked on.

2.) Beyond whether punitive damages are allowed, "proximate cause" can affect damages. As a general rule, with many exceptions, the higher the culpability, the longer the chain of consequences that will be considered as being caused by the act. Especially with emotional harms: many states severely restrict mental suffering claims for negligence. But, some states, such as Hawaii, allow lots of mental suffering type claims for injuries resulting from negligence. Whereas most (all??) states will allow collection for mental suffering if someone punches you in front of all your friends. All this is HIGHLY state and fact specific.
 

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Posted by KarlEd (Member # 571) on :
 
To whom are "punitive damages" awarded? Is it money the plaintiff gets on top of the general damages? Does it go to charity?
 

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Posted by UofUlawguy (Member # 5492) on :
 
Traditionally, they go to the plaintiff. (Well, except for the attorney's cut, which can be quite generous.) However, I have heard of any number of proposals to give some portion of all punitive damages to the state, perhaps earmarked for a particular department or program. I think that some other countries that have punitive-style damages do something like this with them.
 

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Posted by KarlEd (Member # 571) on :
 
I'd support a move to give all of it to the state (as if my support means anything in this case ), earmarked in some way intended to ameliorate the effects of the offense being punished (or to fund a watchdog-type organization to prevent such offenses). I don't really think they should go to the defendant. The general damages should reasonably compensate for the injury. Granting an additional winfall to the plaintiff seems like it would do a lot toward encouraging frivolous lawsuits.
 

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Posted by Dagonee (Member # 5818) on :
 
Plaintiffs, generally.

We did a brief study on why in Torts. I suspect most people who think of them as fines (Consider this to be Theroy 0 would have a first inclination that they should go to the government.

Theory 1: Incentives for Private Enforcement

The problem with that inclination is that punitive damages are awarded in the context of a suit brought by private individuals. It's a form of private enforcement, kind of a gap-filling role between restitution by way of compensatory damages and criminal penalties. We recognize that government has limited resources to carry out what we consider to be a beneficial act - punishing those who endanger others.

If the punitive damages went to the government, private citizens would have less inclination to pursue claims for acts with little actual damages but with the potential high damages. Society would miss out on the benefits of punitive damages. So we let plaintiffs keep them.

Private enforcement exists elsewhere. I believe there are some environmental laws that allow private citizens to sue violators; I believe in those cases the fines do go to the government. Whistleblowers can get a percentage of money recovered in federal contract fraud cases.

Theory 2: Damage Aproximaters

There's another way of looking at punitive damages as a cost adjustor. In general, we allow victims of torts to get compensation for injuries caused them. The idea is that this allows a balancing of costs between the social benefits of risky behavior and the safety costs of risky behavior. However, we consider certain acts to carry costs greater than the measurable economic harm caused by them. We therefore create a knew category of damages and allow them to be collected for such acts. If we lived in the "ideal" world used by economists for thought experiments,* we could measure the total cost of any act and allocate the costs accordingly. Instead, we use punitives as an approximation of other damages, which would then justly go to the plaintiff.

I think the truth is some combination of all three theories (punitives as fines, punitives as incentive to enforce, and punitives as reflection of "true" damages). Therefore, I think allocation of some or all punitive damages would be appropriate.

And I don't think juries consider it in this manner at all.

Dagonee
* That's not meant to disparage - I liken rational man assumptions and zero transaction costs to frictionless surfaces and perfect vacuums in physics - a useful tool for teaching and analysis.

[ August 16, 2005, 11:23 AM: Message edited by: Dagonee ]
 

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Posted by OlavMah (Member # 756) on :
 
Going along with Theory 1, I think that high punitive damages are part of "What efforts are being made to make sure there is equal representation between the rich and poor." High punies means that lawyers are attracted to finding the injured and helping them sue to recover these huge amounts. The wealthiest lawyers in the US are personal injury attorneys, many of whom represent indigent clients. Which isn't to say that personal injury law is always high paying. For those that have a gift for it, though, they can really rake it in. And, interestingly, they are not usually graduates of the top law schools.
 

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Posted by Dagonee (Member # 5818) on :
 

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Going along with Theory 1, I think that high punitive damages are part of "What efforts are being made to make sure there is equal representation between the rich and poor." High punies means that lawyers are attracted to finding the injured and helping them sue to recover these huge amounts. The wealthiest lawyers in the US are personal injury attorneys, many of whom represent indigent clients.

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