I wasn't surprised that no one wanted to offer an opinion as to what fair damages in the hypothetical case would be. Talking about damages in the abstract is one thing, but putting figures on real pain and suffering is tough.

A better word than "tough," and the reason I personally didn't respond, is "arbitrary." As the entire process seems capricious, I don't see any fair and reasonable way to do it.

David, I agree entirely that there's no fair and reasonable way to put a price on the kind of losses I describe. That's why I so strongly oppose damage caps - nothing could be more arbitrary and capricious than deciding that no loss can ever be "worth" more than x number of dollars.

Instead, we need to let juries decide each case on its on facts, and let trial and appellate judges reduce the awards if the jury awards too much.

While I don't think there's any right answer as to how much this fictional family should receive, I do know the wrong answer is $250k, $500k, or even $750k.

You also seem to think the wrong answer is "$30 million" because you retroactively deleted that data point from your survey, even though it demonstrates precisely why caps are needed.

If you want a study with more than twelve people (which is inherently invalid, even aside from the fact that Lane almost certainly failed to use proper controls) read Cass Sunstein's book "Punitive Damages."

Ted - wanna make me lose $50? Tell me how much you would give to the father and child. I bet a friend of mine $50 that you wouldn't.

Side bets aside, how does the fact that one out of twelve people gave a really high award mean that we need caps? Isn't it likely that juror would come down if he or she was pressured by 11 others? And how is this any different from having a "hanging juror" who wants to throw the book at a criminal defendant?

As for proper controls, I simply printed out the blog entry, handed it to them, and asked them to return it to me. I also explained that the money was purely for these losses and that economic damages had already been taken care of. No, this isn't the most precise or valid "study" in the world. But I wouldn't have had to have done it if you and the other tort "reformers" who post here had the courage to comment in any of these threads with the dollar amount you think is fair. Care to tell us what you would have awarded, or do I keep my fifty bucks?

Assuming the drunk driver was at fault, and that there was no question he was significantly drunk, I would award the father and the child their economic damages reflecting their lost wages and medical expenses, and, in most cases, I would award them punitive damages equal to the remainder of the drunk driver's net assets plus 50% of the expected value of the drunk driver's remaining lifetime earnings, which makes the non-economic damages moot. And because it was such a slam-dunk case, I'd limit the attorney's fees to no more than 20% of total recovery or $1000/hour, whichever is lower.

The problem is that your blog entry doesn't adequately define its terms. We don't know if your subjects were awarding damages because they were including economic losses in the calculations, or that the fact description encouraged them to award punitive damages that you calculated as reasonable non-economic damages. If you had more ambiguous facts (say, the defendant was a single mother distracted by her sick child vomiting in the back car seat as they were on the way to volunteer at a Sunday school), you get a different result. It's just very poorly designed.

"Isn't it likely that juror would come down if he or she was pressured by 11 others?"

Studies have shown that an outlier juror actually raises the amount awarded by other jurors more than if the original decisions were just averaged; an unreasonable juror encourages other jurors to act unreasonably. Again, there's a whole book studying this that has more than a 12-person sample; 12 data points is so small as to be meaningless, especially when you throw out 8% of the data because it makes your argument look bad.

Well Ted, you gave me more information than I thought you would... even if you didn't give specific dollar amounts. I agree with the sentiment behind your award of punitive damages, but I do see a couple of problems. First off, what if the drunk driver had no assets and was just a minimum wage earner? Or on welfare? In such a case, your award would be very, very small. What if the drunk driver were Bill Gates or Warren Buffett? Surely you wouldn't allow the father and child to become overnight billionaires? If not, do you have a limit?

I'm betting you awarded a potentially large award of punitive damages because of the reprehensible conduct of the driver. What about if the driver was merely careless, such as blabbing on a cell phone or changing cd's? Would you still award a portion of the driver's future earnings as punitive damages, or would you favor noneconomic damages? I ask because I'm fairly confident you're not actually arguing that noneconomic damages should never be awarded.

With respect to your concerns about my subjects, I did write that I explained verbally that the damages were to be purely for the losses suffered and that economic damages (including lost wages) were already accounted for.

This was hardly intended to be a scientific study. I just wanted to know what some average people would award for such a fictional case. I also asked them if they think that $250k or $500k would be sufficient to compensate the father or the child, and the answer from everyone was a resounding "no."

I'll take a look at the book you mentioned. Thanks for the recommendation.

David, I agree entirely that there's no fair and reasonable way to put a price on the kind of losses I describe. That's why I so strongly oppose damage caps - nothing could be more arbitrary and capricious than deciding that no loss can ever be "worth" more than x number of dollars.

Really? Because I think asking a random bunch of 12 people to pick a random number out of a hat is just as arbitrary and capricious.

And given that, and assuming we want to award this category of damages at all, it seems to me to make more sense to let a democratically-elected body decide how much lives are worth, than twelve random unelected people.

While I don't think there's any right answer as to how much this fictional family should receive, I do know the wrong answer is $250k, $500k, or even $750k.

They don't seem any more right or wrong to me than any other choice. Hell, I'm not wedded to any particular number. Come up with a formula that takes into account various factors. At least that would provide the advantage of predictability.

"Really? Because I think asking a random bunch of 12 people to pick a random number out of a hat is just as arbitrary and capricious."

No more so than asking a random bunch of 12 people to pick a random number of years for a prison sentence.

"Come up with a formula that takes into account various factors. At least that would provide the advantage of predictability."

Since when is predictability a component of justice? Some murderers get the death penalty. Some get life sentences. Others get parole. In a big city like Houston, TX, possession of an ounce of marijuana will get you probation, while in smaller cities like Lubbock, TX, it will get you a year or more in jail. That's hardly predictable, yet the ATRA isn't pushing for reform to the criminal justice system.

Predictability is a nice word, but life isn't predictable. And neither is justice.

No more so than asking a random bunch of 12 people to pick a random number of years for a prison sentence.

I don't understand your analogy. First, I'm not aware of any jurisdictions where juries, rather than judges, hand down sentences.

And second and more importantly, in every jurisdiction, the legislature decides on maximum (and often minimum) sentences for crimes; it doesn't leave unbridled discretion to judges, the way you want to do for juries in civil cases. If you assault me, the legislature does say that the maximum punishment you can get is X years and a fine of Y dollars. But if I turn around and sue you for that assault, you don't want the legislature to say that the maximum recovery is Z dollars; you want the jury to be able to pick any number between 1 and infinity.

Since when is predictability a component of justice?

Since always. That's, for instance, the reason for the ex post facto rule. The legislature can't wait until after A rapes B and then say, "Surprise! The penalty for rape is now 30 years instead of 20!" But for some reason, you think a jury ought to be able to invent some punitive number ex post facto in a civil case.

Since when is predictability a component of justice?

Since at least Aristotle, and arguably even further back to Mosaic law and the Code of Hammurabi. Really now. I can't remember someone embarrassing themselves like this since David Nieporent and I used to argue against right-wing-militia supporters on Usenet in the 1990s.

Revisiting an old post.

The above discussion is interesting on many levels, but I’m focusing here on an interesting point raised by David Nieroponte.

In a discussion with Justinian, David made the point that because elected officials set maximums for criminal penalties and that as such, it makes sense for them to do the same in the form of legislatively imposed caps in civil proceedings as well.

Why should elected officials be trusted to set maximums levels of punishment in criminal proceedings but not in civil proceedings? Although these are two different systems, just like juries we have to decide we either trust legislators to correctly decide these issues…. Or not.

Tort “reformers” have often argued that juries cannot be trusted to make the correct determinations and judgments generally and regarding damages in civil cases (although the right to trial by jury is guaranteed in the federal constitution under the 7th amendment and by almost all states in state constitutions)

I have always found this argument curious when we leave such important judgments such as the decision to sentence a person to death to juries…. but I digress.

In any event David makes an initially compelling point. We either trust elected officials to make the determinations about the scope of the consequences of illegal acts, be they criminal or civil, or not. We can’t have it both ways….

However, what his initially compelling point overlooks is that while legislators do set maximum penalties for the violation of our criminal laws, they also establish minimums………….and yet David did not appear, nor do I guess that he would support, mandatory minimum damages in civil proceedings.

If we’re going to use the criminal justice system as a model and advocate that elected officials should set caps for damages in civil trials, based on David’s reasoning, we also have to impose mandatory minimum damages in civil trials.

I don’t know that I’m opposed to substantive mandatory minimums that parallel those of the criminal justice system.

David or I might suggest different amounts for what these minimums should be, but if he follow David’s logic in his hypothetical we will have to live with whatever our elected officials decide the amount is… as low…. or as high… as they may “arbitrarily” decide as the winds of politics unpredictbaly ebb and flow.