PUNISH ‘EM

Every attorney who represents plaintiffs, whether they do so occasionally or as a matter of course, and whether they have in their office an individual or corporate client, have encountered this situation.  The client comes with a colorable case but thinks the case is worth a fortune.  Yet the true measure of damages under applicable law is one tenth the client’s expectations, or less.  That client (and again, I have seen that with both individuals and businesses) often leaves angry, thinking it’s the lawyer’s fault for not being aggressive enough.

The measure of damages, in most cases, is the actual loss to the plaintiff.  What the client really wants is to punish the other side, to take them down, take everything they have.  But punitive damages – those damages meant to punish the wrongdoer, not merely compensate the victim, are much rarer in reality than news reports might imply.

For one thing, in many states, including Florida, you may not ask for punitive damages right off the bat.  You must amend your complaint later if you can show that the defendant not only did wrong, but did so with malice or reckless indifference to the rights of others, a high burden to meet.

For another, the days when a plaintiff might dream of recovering a thousand dollars in compensation and a million in punitive damages are over.  The Supreme Court has ruled that punitive damages must be proportional to compensatory ones.  A single-digit ratio (so less than 10 times the amount recovered as compensation) is the norm, with some room for jury discretion.

Florida has enacted even stronger limits on punitive damages.  In most cases, punitive damages are limited to three times the compensatory damages, with a hard cap at $500,000.  The limits go up a bit for wrongful conduct that is both inherently dangerous and undertaken solely for financial gains, and disappear only if the harm was intentionally inflicted.  And, because it’s good to be King, punitive damages are never available against the state.  (In fact, even compensatory damages against the state are capped in some cases.)

It is not enough to find a good attorney.  It is also necessary to find an honest one who won’t sell his clients a castle in the sky.