I hit a nerve in my last column, "Is there Such a Thing as Too Much?"
In that column, I openly asked the question, is there such a thing as a verdict which is too high?
I talked about reasons we might be seeing verdicts in ranges never seen before while at the same time noting corresponding decline in lower verdict ranges and an overall drop in filings. It would be interesting to know if median verdicts have changed.
I had Plaintiff attorneys tell me they have been wondering the same question and looking for answers.
If we're honest, all of us are asking the same question.
And it's not a new question, we in the legal community as well as the public, have been asking this exact question since the first tort verdict was ever announced.
I clearly remember the buzz in the Daley Center when Jack Hayes got a verdict, as best I recall, for the then outrageous figure of ten million, I think, in the Tannenbaum case. People were stunned. Everyone asked the same question: How high is up?
And as we ask this question, we have to ask the related question, is there such a thing as too low?
To be sure, the question isn't whether or how often judges do or don't grant remittiturs or additurs or new trials. The question, is simply, should they be able to?
The question also isn't, whether the jury system is the best system. My dad used to say our legal system is awful. It's slow. It's expensive. It gets it wrong. Problem is, no one has ever come up with anything better.
So, if there is no such thing as too high, it would seem to make sense that there is no such thing as too low. Meaning, if a jury only awards one tenth of the proven medical bills or gives a ridiculously low number for non-economic damages or none at all, should something be done about it?
Which all leads to one of the very hardest questions people have ever faced: What in the world do we mean by "fair compensation" (IPI 30.01)?
We make it clear that we are not talking about punishment. Compensatory damages are not about punishment or about teaching anyone a lesson.
They are not about undoing wrongs. No one brings back a beloved parent.
And, in another related question, the amount awarded is not really custom tailored to the individual plaintiff. We don't bring in evidence of how much money means to that person. For example, how much they already have in their bank accounts, how much property do they own or what sort of life style do they live. If we did, rich people would get more money than poor people. Does compensation mean they should?
We don't ask the jurors what they would take for such an injury. For one thing, it doesn't matter. It's not about them, it's about this plaintiff at this time.
So how do we possibly assess what fair compensation means?
In trying to figure out a price, to what extent should we look at prices of other stuff in our economy? Should lawyers be able to compare prices of hard goods like cars or airplanes in their closing arguments? What about the price of buildings or roads or bridges? Should a defense attorney be able to say the award requested is the entire budget of a particular town? Should plaintiff lawyers be able to compare salaries of baseball players or actors?
One of the problems is that those prices are based on factors not at all applicable to tort cases. A baseball player makes whatever he does because of his perceived economic value to the profit of that team. Actors get whatever they do because of how many fans they will draw to the movie and how much money they will make the producers.
Most other stuff in our economy is priced by comparison and competition. Jury verdicts, not at all. Jurors don't compare one case to another. They are strictly told absolutely not to. No one competes for a horrendous disability. I've heard it argued, if an ad were placed for someone to lose their legs, how much would you have to offer? Again, that argument does not address the question of compensation to this particular plaintiff who was not given that choice.
Economists testify as to economic values. But we never let experts decide injury case values. In our courts we do not recognize expertise in valuing injury. We leave that to twelve random citizens to flail away at it and come up with their best answer to an unanswerable question. We call that the best justice we can figure out.
So, in this parallel universe, our legal system, where awards may not be based on comparison or competition or the recipients's particular economic circumstance or anyone's claimed expertise in the value of injury, in this strange world, which is the best that has ever been invented, how committed are we to the notion that whatever is done is right, and that there is no safe point on that slippery slope of review and revision, not just in good times, but also in bad, not just when we lose but also when we win?