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Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award:

Finally, let me close this series of posts with a thought about the particular damages award in Snyder, and what it says about the danger of leaving these questions to juries.

The jury awarded $8 million in punitive damages to the plaintiff in Snyder v. Phelps, but it also awarded $2.9 million in compensatory damages.

Now I stress again that the speech here was extremely offensive (and, in my view, entirely unjustified); and of course the plaintiff, being a grieving parent, was especially emotionally vulnerable. Yet I would think that even a grieving father wouldn't be that damaged by speech that (1) he saw on one occasion (albeit a deeply important occasion), during television reports following the funeral, that (2) he knew was not remotely reflective of the views of his community, and that (3) he knew was said by people who are held in contempt by the community. ("Snyder testified that he never saw the content of the signs as he entered and left St. John's on the day of his son's funeral," and recall that the signs were 1000 feet away from the church.)

The speech wasn't threatening. It didn't damage the father's reputation, or even the reputation of his late son. It wasn't constantly repeated. I can't quite see how it would exacerbate the father's grief, which of course stems from his son's death, not from the fact that a small minority of hateful, anti-American kooks and publicity hounds say the son deserved to die.

The speech doubtless made the father extremely (and rightly) angry. But is $2.9 million really a sensible compensation for that sort of emotional distress? Again, remember that this was supposed to be just the amount of compensatory damages. And of course, note also that even if the First Amendment were entirely out of the picture, the size of the compensatory verdict is constitutionally significant: Under the Court's Due Process Clause jurisprudence, the punitive damages would be unconstitutional if they were too many times greater than the compensatory damages.

This, I think, further illustrates the danger of leaving juries with the discretion to decide which speech should be suppressed, especially under broad and vague standards such as "outrageous[ness]." Liability easily ends up turning on how much juries condemn the speaker's viewpoint -- as well as the speaker's manner -- and not just on supposedly objective factors such as how much damages the speech actually inflicted.

frankcross (mail):
Well, the jury heard the evidence. I'm assuming you did not. I have a hard time second guessing the jury here without knowing the evidence on which they based the award.
11.7.2007 7:33pm
DonP (mail):
The Phelps mob is just lucky they didn't put together a jury of "real peers" made up of parents that have lost children and have them estimate how much pain and suffering they might have caused.

Not to put too fine a point on it, but IMNSHO unless you have experinced that most dreadful of pains, losing a child, you have no concept of the pain and suffering you'll carry with you for the rest of your life. Each memory scarred by these so called "good christian men and women".
11.7.2007 7:36pm
Dilan Esper (mail) (www):
Great job, Professor Volokh. As soon as that verdict came down I was thinking "I wonder what Professor Volokh is going to say about this one". You did not disappoint.
11.7.2007 7:40pm
Brian G (mail) (www):
What I hate is that this band of scumbags are being referred to as a "church." They are not a church, they are a bunch of filthy scum.

The human being in me wishes they are bled dry financially. The lawyer in me thinks a lot more dispassionately, and agrees with you our fine Professor.
11.7.2007 7:47pm
Eugene Volokh (www):
DonP: I missed the rule that "a jury of one's peers" really means a jury of the plaintiff's peers. The plaintiff can equally well be said to be "lucky they didn't put together a jury of 'real peers' made up of [Phelpsians]."

More broadly, I don't doubt that losing a child causes tremendous pain and suffering. The question is whether learning that a tiny group of yahoos, whom all decent people rightly condemn, said some outrageous things about you and your child really "scar[s]" your "memor[ies]" of the child, to the tune of $2.9 million in damages. Is a lifetime (even too short a lifetime) of loving memories of living with one's child really so easily scarred by one incident that one sees on the evening news?

Frank: If this were a question of, say, $10,000 versus $50,000 or some such, I might agree with your deference to the jury. But $2.9 million for having seen the Phelpsians' mini-demonstration on the evening news? Shouldn't that make one doubt whether the jury really decided based on the actual damages the father suffered, as opposed to based on the outrageousness of the Phelpsians' speech (quite possible including its anti-American nature, bigotry, and perversion of religious belief, as well as its time, place, and harshness)?
11.7.2007 7:51pm
Eugene Volokh (www):
Brian G: Are the two inconsistent? Can't they be "a church filled with filthy scum"? Glad we agree otherwise, though.
11.7.2007 7:54pm
frankcross (mail):
Well, I would have to see the evidence presented on damages to draw much of a conclusion.

I do know that multimillion dollar awards for IIED are not uncommon, so I wouldn't assume that this had much to do with free speech. I wouldn't leap to that conclusion unless the award were much higher.
11.7.2007 7:58pm
Eugene Volokh (www):
Frank: I can imagine high awards for behavior that humiliates someone in front of friends or coworkers (though $2.9 million would be high even for that). But here the father surely must have known that all decent people are on his side, and the speech simply reflects a view of some idiotic strangers. Can that sort of speech really cause $2.9 million in emotional distress, in any meaningful sense?
11.7.2007 8:04pm
r78:
This post sums up in a nutshell the illogic that underlies the arguments of people who want to abolish juries.

What is the basis for asserting that the opinions of 12 people on the jury are unfounded and irrational? Well it's Mr. Volokh's opinion that they are.

Although it is improper in some jurisdictions to make the following argument to a jury, let me ask you this: If you and your family were at a funeral for your husband or father would you accept $2.9 dollars to allow a bunch of a-holes with neon signs chant about how your loved one deserved to die?

I sure as hell wouldn't.

And, yes, we can all quibble that maybe 2.9 was too much. Maybe it was too little. But that is the purpose of having 12 people agree on the number - to get a reflection of what the community's values are.

(And, by the way, I don't think this suit should have ever been allowed to proceed on 1st Amendment grounds, but that has nothing to do with whether it would be better to have a judge or a jury determine the damages.
11.7.2007 8:10pm
John (mail):
The trouble is not with the jury, but with the tort. It is of fairly recent vintage, isn't it?
11.7.2007 8:25pm
Lior:
r78: I couldn't disagree with you more.


To start with, the damages were $2.9 million, not $2.9. More importantly, I cannot credit with any respect a legal proceeding which does not produce an account of the reasoning for its verdict. Unless the court (however comprised; judge and jury in this case) can explain the reasoning leading to the result, you can't say this result reflected the community's views, or anyone's views for that matter -- because the views were not detailed. How do you check that the jury made the right call? Who gets to review their ruling for logical correctness?


At a more fundamental level: could you live with a verdict against you that said "We (the judge/jury feel that you are guilty, but can't explain why we feel this way"? Would you trust a chain reasoning which cannot be explained coherently?
11.7.2007 8:31pm
David M. Nieporent (www):
Although it is improper in some jurisdictions to make the following argument to a jury, let me ask you this: If you and your family were at a funeral for your husband or father would you accept $2.9 dollars to allow a bunch of a-holes with neon signs chant about how your loved one deserved to die?

I sure as hell wouldn't.
So then you're actually arguing that the jury was unreasonable because it didn't award enough.

But this really illustrates the problem: this is an entirely arbitrary exercise, and thus inappropriate for a jury. $2.90 is just as "correct" as $2.9 million which is just as "correct" as $29 million. When there's no standard, there's no basis for a jury award.
11.7.2007 8:44pm
Ex-Fed (mail) (www):
I don't recall whether this limit on punitive damages has been found to be of constitutional dimensions or not, but in general it is my understanding that punitive damages must also be reasonable in proportion to the net worth of the defendant. Is there any indication that the defendants had $11 million? Even if they do, as I recall awards that wipe out net worth have been found to be excessive.
11.7.2007 8:45pm
Fub:
r78 wrote at 11.7.2007 8:10pm:
Although it is improper in some jurisdictions to make the following argument to a jury, let me ask you this: If you and your family were at a funeral for your husband or father would you accept $2.9 dollars to allow a bunch of a-holes with neon signs chant about how your loved one deserved to die?

I sure as hell wouldn't.
Heck, if I thought the executor of my will could bring it off, I'd be inclined to add instructions to find a bunch of a-holes with neon signs and $2.9 Million willing to pay my estate in advance for the privilege of chanting at my funeral. Proceeds to be divvied up by my heirs, except for a few hundred thou to throw a helluva 3 day invitation-only wake.
11.7.2007 8:49pm
rlb:
Going from memory here- the net worth of the defendant is a rule (usually statutory) in some states for punitive damages. A constitutional issue might exist (at least, according to the Supreme Court) where the punitive damages are grossly disproportional to the actual harm suffered (something like more than 9 times the actual damages in a normal case, or some other silly, arbitrary number).
11.7.2007 8:51pm
frankcross (mail):
The tort's about one hundred years old and actually originated in speech cases, I think, involving profanity by railroad workers.

I'm not saying the verdict is necessarily right, just that I wouldn't condemn it without knowing the evidence. Here's a hypothesis. The family members alleged that their precious, solemn memory of the funeral was destroyed by the protestors. That they could no longer think of their family member's sacrifice and service, without thinking about the protestors and their claims. I can see that being as bad as an episode. humiliation in front of coworkers. That's just off the top of my head. Maybe the plaintiff presented a better theory

I realize this is a blog that necessarily involves seat of the pants judgments, but I don't think you can reliably second guess the jury without more familiarity with the evidence.
11.7.2007 8:56pm
chuckc (mail):
"The trouble is not with the jury, but with the tort. It is of fairly recent vintage, isn't it?"

There really wasn't a need for such a tort until recently. Less than 200 years ago, the likely response would have called for pistols at 20 paces.
11.7.2007 8:57pm
William Spieler (mail) (www):
How do you put a price on loss of consortium?
11.7.2007 9:51pm
William Spieler (mail) (www):
Or slander? Or basically any non-physical-harm tort?
11.7.2007 9:52pm
Sean M:
Seeing as you can, literally, kill someone in an auto accident and get away with damages less than $2.9 million in compensatory damages (though a good deal of this obviously has to do with what the insurance coverage limits are in a case), I can't see how $2.9 million in compensatory damages is at all reasonable.
11.7.2007 9:53pm
SMatthewStolte (mail):
On Brian G's point about referring to the group as a church, I'd like to thank you, Prof for calling them, first, Phelpsians. Their self-identification as "Baptist" is thoroughly misleading and the more common term used to describe them as "fundamentalist" glosses over the fact that Phelps and his followers are really a different breed from (an diametrically opposed to) even the most conservative American evangelical theology.
11.7.2007 10:30pm
Dave Griffith (mail):
The Phelpsians are a very odd edge case. Something about their behaviour being clearly so over the line on every axis you can name, but not actually dangerous to anyone. Having the majesty of the law censure them is clearly wrong, and a long step down a slippery slope. Paradoxically, having masked citizenry accost them in the night and break even bone in their limbs with tire irons seems just about right, in terms of justice, and not actually all that dangerous to the commonwealth. Like I say, odd. (Note, if anyone takes this advice to heart, be sure to be masked. Phelpsians carry video cameras and attack lawyers.)
11.7.2007 10:46pm
K Parker (mail):
All this argument about the compensatory damages, and not one word about the outrageousness of the punitive damages?




(True confession time: I'm in an apparently quite small minority that thinks the very concept of punitive damages has no place in the civil law system, that if you want punishment in addition to being made whole you should have to convince the state's attorneys to have at it, and to meet the higher standards that prevail in criminal court.)
11.7.2007 10:59pm
Eugene Volokh (www):
SMatthewStolte: My pleasure, and thanks for the kind words -- I deliberate said Phelpsian precisely because Baptist and fundamentalist struck me as an insult to Baptists and fundamentalists, and Westborans (Westborovians?) seemed likely to be incomprehensible.

Dilan Esper: A belated thanks!
11.7.2007 11:19pm
PersonFromPorlock:
EV, I think you missed an important point; that the damage is not just to Snyder but to every person who was appalled by the Phelpsians' behavior, which is approximately everyone except the Phelpsians. Behavior that bad diminishes all of us.
11.7.2007 11:28pm
Brian G (mail) (www):
Professor,

Yes, there can be a church filled with filthy scum. However, these guys aren't that. They deface the meaning of a "church" as cover for their despicable behavior.
11.7.2007 11:29pm
Eugene Volokh (www):
PersonFromPorlock: The compensatory damages award is not supposed to reflect damage to humanity -- it's supposed to reflect damage to this particular plaintiff.

More importantly, how does someone else's evil speech "diminish[]" me? And, once we start taking the view that your speech can diminish me, isn't that sort of the end of the line for free speech protections, given that this will give everyone the right to demand that another's speech be suppressed just because it "diminish[es]" unconsenting third parties?
11.8.2007 12:43am
billb:
Can anyone here explain to a non-lawyer why punitive damages are awarded to the plaintiff? Assuming, arguendo, that you are willing to contemplate a theory of punishment for bad actions that goes beyond the criminal justice system (unlike, perhaps, K Parker above), does it make sense to award these damages to the plaintiff, since, by definition, the compensatory damages are designed to make the plaintiff whole?
11.8.2007 1:09am
TruePath (aka logicnazi) (mail) (www):
billb:

One reason is to encourage private lawsuits to discourage egregiously bad behavior.

I think more importantly though is the fact that if you didn't award them to the plaintiff they wouldn't ever be assessed in the first place since the defendant would settle out of court with the plaintiff to avoid the possibility of paying punitive damages to the government.
11.8.2007 1:54am
Just a Nut (mail):
There are many unique and irreparable damage issues here. There is the disruption of the memorial ceremony with little reason to do so. This to amplify the pain due to the loss of a child. The moment is gone and the disruption soils the entire experience to take it from very sad to infuriatingly sad. This is what the jury recognized as peers.
As to the amount of the punitives and the compensatory damages, the defendent should now take the tort doctrine of having to compensate damages to an eggshell plaintiff, specially when there is good reason to expect a thin skin.
The public policy issue I see is that of restraint on free speech. Here a non-public figure was involved. Further, speech itself was not curtailed, but delibrate malice by way of speech was punished.
11.8.2007 4:58am
PersonFromPorlock:

More importantly, how does someone else's evil speech "diminish[]" me? And, once we start taking the view that your speech can diminish me, isn't that sort of the end of the line for free speech protections, given that this will give everyone the right to demand that another's speech be suppressed just because it "diminish[es]" unconsenting third parties?

EV, speech isn't the issue here except that it was the Phelpsians' weapon of choice in committing battery. The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder.

We are all diminished if we 'pass by on the other side' in the face of uncivilized actions like this. Society rests, not on law but on at least a rough consensus of what proper behavior is: the Phelpsians are far beyond the Pale.

The real 'slippery slope' lies in turning the law into a content-free process that has forgotten it reflects civilization and not vice versa.
11.8.2007 9:07am
Daniel San:
The reason we have juries is to have the capacity to get a set of unaccountable decision-makers who will bring local sensibilities and local prejudices into the decision. Even in a negligence case, the unpopular ideas or associations may be a factor in the juries deliberations and (usually) no one gets to review those deliberations. The argument against a jury trial right in this type of case supports the elimination of the civil jury. (Do we know who demanded jury trial in this case?)
11.8.2007 9:18am
Dick King:
Juries are padding damages if the defendant is politically incorrect. Does anyone believe that this compensatory damages verdict would have been more than $20 million if the deceased had been driving a car and had gotten killed by being hit by a UPS truck on an icy road?

-dk
11.8.2007 9:28am
Pluribus (mail):
PersonFromPorlock wrote:

EV, speech isn't the issue here except that it was the Phelpsians' weapon of choice in committing battery.

My impression was that the First Amendment protected speech but not physical touching. Thus words are protected but not battery. Is this except when the words are really, really bad?

The First Amendment no more protects a right to do this than the Second Amendment protects one to commit murder.

So speech can be equated to murder? If so, why doesn't the district attorney prosecute?

Society rests, not on law but on at least a rough consensus of what proper behavior is.

Sorry, I am not willing to surrender First Amendment rights whenever a "rough consensus" of society classifies particular speech as "improper." Such a standard would amount to a virtual abolition of free speech.
11.8.2007 12:18pm
Melvin H. (mail):
Ex-Fed wrote:

"I don't recall whether this limit on punitive damages has been found to be of constitutional dimensions or not, but in general it is my understanding that punitive damages must also be reasonable in proportion to the net worth of the defendant. Is there any indication that the defendants had $11 million? Even if they do, as I recall awards that wipe out net worth have been found to be excessive."

(My emphasis)

Ex Fed, if that were true, O.J.'s $33 million civil verdict would've (should've?) been tossed out fairly quickly--along with the tobacco lawsuits (among others), the Vioxx lawsuits, and so on.
11.8.2007 12:32pm
r78:

But this really illustrates the problem: this is an entirely arbitrary exercise, and thus inappropriate for a jury. $2.90 is just as "correct" as $2.9 million which is just as "correct" as $29 million. When there's no standard, there's no basis for a jury award.


No, not at all. It demonstrates that 12 people on a jury (who heard the evidence) decided that $2.9M was appropriate.

All your post adds up to is: I disagree with the jury. Nothing more, nothing less.

And as for their being no "standard" - did you review the jury instructions or verdict form before opining that there is no "standard"? Or are you just peddling more corporate tort-reform propaganda?
11.8.2007 1:04pm
Vivictius (mail):
It didn't damage the father's reputation, or even the reputation of his late son. It wasn't constantly repeated. I can't quite see how it would exacerbate the father's grief, which of course stems from his son's death, not from the fact that a small minority of hateful, anti-American kooks and publicity hounds say the son deserved to die.

Did you look at all at what they where saying?

If nothing else how can anyone claim their crap doesn't fall in the catagory of "fighting words"? Everything they do is designed to "..inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568)

The Phelps' goal is to cause violence to get attention and let them sue for money to incourage more violance and get more attention. None of that is protected.
11.8.2007 1:39pm
luagha:
Aren't there some sort of rules for over-contentious over-litigants who are clearly trying to game the system like the Phelpsians? I mean, it's not like anyone expects them to pay that 10.9 million dollars. They'll just string it out, appeal, try various bankrupty and reformation tricks, and so forth, right?
11.8.2007 1:47pm
mariner (mail):
We are all diminished if we 'pass by on the other side' in the face of uncivilized actions like this. Society rests, not on law but on at least a rough consensus of what proper behavior is: the Phelpsians are far beyond the Pale.

The real 'slippery slope' lies in turning the law into a content-free process that has forgotten it reflects civilization and not vice versa.


Thank you for that, Person.
11.8.2007 2:33pm
mariner (mail):
Juries are padding damages if the defendant is politically incorrect. Does anyone believe that this compensatory damages verdict would have been more than $20 million if the deceased had been driving a car and had gotten killed by being hit by a UPS truck on an icy road?


Let's turn that around.

Does anyone believe those damages would have been less than $20 million if the defendant had been a white supremacist organization?
11.8.2007 2:36pm
KeithK (mail):

True confession time: I'm in an apparently quite small minority that thinks the very concept of punitive damages has no place in the civil law system, that if you want punishment in addition to being made whole you should have to convince the state's attorneys to have at it, and to meet the higher standards that prevail in criminal court.

I'm with you there.
11.8.2007 2:38pm
strategichamlet:
PersonFromPorlock and meriner,

So the rule of law (even the Constitution!) should not reign supreme if at any point it runs afoul of baseball, Mom, or apple pie?
11.8.2007 2:56pm
Russ (mail):
The right to free speech is NOT absolute, and has been so ruled by the courts. The famous phrase "you don't have the right to shout 'fire' in a crowded theater" applies here. For this is the equivilant(sp?) at the funeral of someone's child.

Phelps' repugnant speech would be protected if he were to stand on the steps of City Hall or picket outside a military base(but still on public property), but in this instance, he has specifically stated that he targets funerals to cause pain to the "immoral families." That IS intentional infliction of emotional distress.

He is lucky he hasn't been beaten to a pulp by now, although that might be part of the reason he does such things - he and his families are mostly lawyers as well and would have jumped on a lawsuit if they were struck.

Those trying to say this case chills free speech are not applying the "reasonable person" standard. After all, would I be protected by going to Harlem and shouting that all African Americans are (insert "N-Word" here) and genetically inferior so they didn't deserve the right to vote? I'm sure I'd get beaten to death, and deservedly so, even though, in my idiocy, I was making "political" speech.
11.8.2007 3:23pm
AF:
I agree with Professor Volokh that the damages are excessive, and are subject to drastic reduction for a number of reasons, including the First Amendment. Cf. Gertz v. Robert Welch (holding that though NYT v. Sullivan does not apply to libel actions against private individuals, but "presumed" or punitive damages are not available).

However, though I agree with his ultimate conclusion that the Phelps liability verdict should be overturned, I do not think it is necessary to eliminate the tort of IIED to do so. Since most of comments about Professor Volokh's series of posts about the Phelps case are in this thread, I will post my comment on liability from a different thread:


Your series of posts on liability strike me as more in the nature of amicus briefs for the defendants, than analyses of the current state of the law.

First, it is somewhat misleading to say that the Court in Hustler "had no occasion . . . to discuss such lawsuits brought by private figures." The question of the constitutionality of the IIED tort was squarely before the Court. If the Court had thought the tort was unconstitutional in all contexts, it could have so held. Instead, it limited its holding to public figures, making explicit reference to defamation law, where different standards apply to public and private figures. While Hustler certainly does not preclude a holding that the IIED tort is unconstitutional as applied to private figures, it suggests that it is not, and numerous lower courts have agreed.

Second, Gertz said there is no such thing as a false opinion, but it did not say that statements of opinion are never actionable. They are just not actionable as libel. As you have acknowledged in the past, courts have upheld IIED judgments based on opinions (eg, the "Ugliest Bride" contest). You may think these cases are wrongly decided, but they are the majority view.

The broad acceptance of the IIED tort, coupled with the Supreme Court's limitation of the tort as applied to public figures in Hustler, suggests that under current law, the First Amendment does not prohibit the imposition of liability for highly abusive insults directed at private individuals.

The trouble with the Phelps verdict, it seems to me, is not that the well-established tort of IIED is unconstitutional on its face, but that the facts did not support the conclusion that the defendants directed their abuse solely at the private plaintiffs. Rather, the private plaintiffs were injured as a result of the defendants' public protest -- which plaintiffs did not even see firsthand. It would be straightforward, I think, to hold that the IIED tort (if it is to avoid the NY v. Sullivan limitation imposed in Hustler) requires a direct insult to a specific private figure, rather than the infliction of emotional distress on private individuals as a byproduct of speech on public concern.

Thus, funeral protesters who directly insult the deceased could be held liable, but those who indirectly cause distress to the family by protesting about broader issues cannot.
11.8.2007 4:27pm
Smokey:
K Parker:
All this argument about the compensatory damages, and not one word about the outrageousness of the punitive damages? ...I'm in an apparently quite small minority that thinks the very concept of punitive damages has no place in the civil law system, that if you want punishment in addition to being made whole you should have to convince the state's attorneys to have at it, and to meet the higher standards that prevail in criminal court.
I vote for K Parker. Punitive damages have lawyers salivating like starving hyenas, and that can't be good for society.

One possible solution [even though I prefer Parker's]: Any punitive damages must be paid directly to the tax assessor. That way, the corrupting motive [$$$$$] to go after punitive damages is greatly reduced.
11.8.2007 7:26pm
David M. Nieporent (www):
No, not at all. It demonstrates that 12 people on a jury (who heard the evidence) decided that $2.9M was appropriate.
So what? They could have decided that any number was appropriate. Averaging 12 random numbers doesn't give the correct answer to a question.
All your post adds up to is: I disagree with the jury. Nothing more, nothing less.
No, you said that you disagree with the jury. My point is very different, even if too hard for you to grasp: that there's no basis for agreeing with or disagreeing with the jury. If they had said some other number just as if they had said this number, one could say, "I think it should be more/less," but one couldn't say, "This verdict was incorrect." There's nothing to base it upon.
And as for their being no "standard" - did you review the jury instructions or verdict form before opining that there is no "standard"? Or are you just peddling more corporate tort-reform propaganda?
I don't know what "corporate tort-reform propaganda" is. There's no standard because, unlike with economic damages, there's no way to measure. 12 people picked the number out of a hat. Big whoop.
11.8.2007 10:32pm
PersonFromPorlock:
strategichamlet:

So the rule of law (even the Constitution!) should not reign supreme if at any point it runs afoul of baseball, Mom, or apple pie?

It's tricky, but if the law doesn't start from some a priori value it has no place at all to start from. Being the duly enacted product of competent authority isn't enough to justify a law's existence.
11.9.2007 8:23am
c.gray (mail):

But is $2.9 million really a sensible compensation for that sort of emotional distress?


Well, this is a system that once issued a compensatory damages verdict for $2.9 million (coincidentally enough) against a McDonalds on behalf of a woman who had placed a cup of coffee with a lid marked "Warning: Contents May Be Hot" between her legs and while, in a moving vehicle, twisted off the cap, scalding herself when she spilled the "surprisingly" hot coffee.

It seems to me there is a reasonable, albeit wrongheaded, argument that this particular lawsuit should not be allowed on 1st amendment grounds. But if IIED suits are allowed against protesters who turn the funerals of private citizens into soapboxes for their cause, the size of the damage award in this particular case is at least as legitimate as most other multi-million dollar jury awards for non-economic damages.
11.9.2007 5:38pm
r78:

I don't know what "corporate tort-reform propaganda" is.

That would be the sort of stuff you write over at the Overlawyered blog.

Or is that a different David Niporent?
11.9.2007 5:47pm
r78:
Niporent - I notice that you didn't respond to my question about whether or not you reviewed the jury instructions or the verdict form. Do you even know what those look like? Have you ever put together a set of jury instructions in your career?


12 people picked the number out of a hat. Big whoop.

If you think that this is the way juries operate then it demonstrates that you don't have any experience in this area. I have been on two juries (one crim, one civil) and have debriefed dozens of jurors after trials and based on this, I can say that jurors deliberate and debate and take their jobs very seriously.

Let me try to make this really simple so you can understand: When a jury takes a week or two weeks to deliberate - what exactly do you think they are doing before or after they pick the numbers out of a hat? Do you imagine that they take 12 days to decorate the little slips of papers with the numbers on them?
11.9.2007 5:54pm