Recently, I have made a few driving trips to and from Florida. One of the changes I have noticed as I drive south is the proliferation of lawyer billboards. Every one proclaiming the millions of dollars they have recovered for their clients. I see this too when I watch television during my morning exercise routine, lawyer commercials trying to convince you to hire them because of their record of success.
What interests me, and scares me, about this type of advertising is that it might give people the wrong information about how compensation is determined in real cases, especially here in New Hampshire, where million dollar awards are rare. But it also demonstrates the fascination folks have with large awards. What the advertisements and news stories don’t tell us is what those numbers are based on, or if there’s even a basis, other than sympathy or anger on the part of the jury.
Generally, in personal-injury cases (also called torts), which include car accidents, slip and falls, dog bites or other animal attacks, professional malpractice, products liability, or any case where a person claims they were harmed by the negligence of another person or company, the damages that a jury can award are determined by hundreds of years of law developed by the courts. This is called the common law and, unless the Legislature has passed a statute, which overrides the common law, are similar from state to state, and apply in both state and Federal courts. There are two types of damage that a jury is allowed to award compensation for.
The first is financial losses, also called special damages, which include lost earnings, future lost earnings, medical bills and damage to property. But just because an injured person (the plaintiff) presents evidence of these damages, it does not mean that a jury has to award the full amount claimed.
The plaintiff must also prove that the losses were caused by the wrongful conduct of the defendant, and that the amounts are reasonable. Thus, a jury may find that the injuries existed before the event, or the amounts are excessive, and return a verdict smaller than the financial losses claimed.
However, juries are not allowed to award less because of speculation that the plaintiff had insurance (health or disability) or a generous employer who continued the plaintiff’s pay. The reasoning is that these so-called “collateral sources” are paid for by insurance premiums or other sources and a negligent defendant should not be allowed to benefit from the plaintiff’s precautions.
The other type of damage is for emotional harm to the plaintiff, or their spouse, called general damages. These include pain and suffering, embarrassment, humiliation, inconvenience, and “loss of consortium,” damage to the marriage relationship to the spouse.
New Hampshire courts have also recognized a right to such damages on the part of a bystander, a close relative of the plaintiff who witnesses the event and because of it suffers emotional harm. There are no hard and fast guidelines for a jury in awarding these damages, but, like financial losses, the amount must be reasonable, and generally have some relationship to the severity of the harm suffered.
The courts have a process for correcting a verdict which is thought to be excessive, called remittitur, or one thought to be unreasonably low, called additur, but these are used rarely and only when the court finds that “no reasonable person could have made such an award.”
The element that supports many of the sensationally large jury awards is punitive damages, which New Hampshire does not allow. The purpose of punitive damages is to punish a defendant who has acted, not just negligently, but with extreme negligence, indifference to the safety of the public, and/or deliberately, in the face of information that its conduct will cause harm.
MA well-known example is the McDonald’s coffee case. The evidence included information that McDonald’s was aware of several previous instances where its extremely hot coffee had burned customers, but continued its practice of serving the coffee at a temperature much higher than would be typical for a consumer. Then, refused to compensate the plaintiff for her medical bills, which was all she requested in the first place. New Hampshire courts have never allowed such evidence, and the Legislature passed a law prohibiting them.
New Hampshire does, however, allow juries to award “enhanced compensatory damages” if it finds that the defendant’s conduct was “wanton, malicious, and oppressive.” I am not aware of any cases involving negligent conduct where a jury was allowed to award such damages. They have been awarded mostly in cases involving intentional conduct, such as murder, sexual harassment, and defamation. There has been a suggestion by the Supreme Court that evidence of drunk driving would support such an award, but I am not aware of any actual verdicts.
New Hampshire juries are also not allowed to compensate plaintiffs for their attorneys’ fees. Many of my clients are unaware of that, and when we are involved in settlement negotiations, I often hear “I would like to end up with X, plus reimbursement of my attorneys’ fees.” I then explain that, in arriving at a reasonable settlement amount, we cannot consider that, because the insurance company and its lawyers are looking only at what a jury might award in making their offer.
This article is by no means a comprehensive survey of damages in all cases. I have not addressed such cases as those based on Federal and State statutes such as gender, race, and disability discrimination, which do allow for punitive damages and awards of attorneys’ fees, or civil rights and consumer rights cases. However, because most of the advertising and publicity concerning jury verdicts is based on tort cases, I have focused on those, to try to give you a better understanding of what you might expect from a New Hampshire jury.