Insight

Punishment and Deterrents

Facing a jury instruction on punitive damages? Here’s a cheat sheet to help you secure the best possible outcome for the defendant you represent.

Seated man wearing glasses and looking down
DY

David A. Yeagley

September 6, 2022 11:31 AM

The court has denied summary judgment, and now the defendant is facing trial and a looming jury instruction on punitive damages. As defense counsel, you recognize that a punitive damages instruction impacts the defense. How so, exactly? Here’s what to keep in mind.

The punitive damages defense begins at the pretrial stage. Aside from motion practice seeking judgment on a punitive damages claim, a related question, depending on the jurisdiction, is whether the defense ought to seek bifurcation of the liability and punitive damages phases of the trial. The key to the answer turns on whether the defendant can elicit new evidence in the punitive damages phase. For example, perhaps remedial measures or policy changes were implemented after the fact that cannot be admitted in the liability phase.

In the absence of different evidence, what’s the underlying message in the punitive damages phase other than “the defendant still doesn’t get it”? With an all-in-one approach to a trial, a jury that might otherwise be inclined to award punitive damages could be satisfied with an award of compensatory damages (and the defendant’s assurance of accountability), thereby avoiding a post-trial award of attorneys’ fees.

Even before that, the defendant should factor in the likelihood of a punitive damages instruction—and its effect on trial strategy—in the settlement calculus. Counsel should likewise be mindful of the punitive damages claim in witness interviews and discovery. A plaintiff may make important concessions in a deposition that can be used in motion practice and at trial, such as acknowledging that the defendant did not intend to cause harm through its actions. Specific evidentiary issues should be raised prior to trial in motions in limine, which can go a long way toward defining the rules of engagement at trial.

Lay the groundwork for trial. Whenever possible, draft jury questionnaires and voir dire questions tailored to the specific case issues. This will help you gauge potential jurors’ impressions about punitive damages. Jury instructions and written juror questions (interrogatories) should advocate within the law and evidence, articulating the heightened standard for awarding punitive damages based on aggravated or egregious misconduct.

The facts matter. Every lawyer (and client) is an advocate, but it’s the unvarnished facts, viewed through the jury’s eyes, that matter at trial. The reality is that by the time of the punitive damages instruction, the court will twice have passed (under Rules 56 and 50) on the defendant’s party line. The evidence and arguments—going to both liability and punitive damages—must be tested in mock presentations, the nature of which can vary depending on the case (the amount of money at stake, for example). Whatever the process, it’s critical to gain an independent perspective of the evidence outside the legal defense bubble.

The defendant must show up. A cardinal rule for defending a punitive damages claim is to be there in person. The jury needs to see that the defendant takes the matter seriously. A meaningful corporate representative must attend and participate in the trial; defendant’s witnesses must testify to the extent possible; and the defense must provide a credible explanation if a particularly important witness does not testify.

Develop a narrative. Defense counsel must build a comprehensive narrative that goes to the foundational concepts of punitive damages—namely punishment for past misconduct and deterrence of future misconduct. It’s one thing to stubbornly argue that the defendant didn’t do anything wrong, but a looming punitive damages instruction requires the defendant to step out from behind the burden of proof and elicit evidence affirmatively demonstrating that he or she does indeed “get it.”

Whatever the process, it’s critical to gain an independent perspective of the evidence outside the legal defense bubble."

The narrative should be supported by objective documentary evidence. This could include evidence of a peculiar misunderstanding or an explanation of why the same scenario is unlikely to arise again. The defense should elicit evidence of the policies and procedures in place to safeguard against the occurrence or prevent a future occurrence. The defense should marshal whatever facts and evidence exist of the defendant’s good faith and fair dealing, or that refute any indication of malicious conduct.

Assess the approach at trial. If the defendant is facing a punitive damages instruction, the defense narrative begins to unfold during voir dire and the opening statement. During the trial, what message will you send the jury, and how will jurors perceive the defendant? Will the defense try to characterize the plaintiff as opportunistic or a liar, and what’s the risk if the jury doesn’t agree? Consider actively challenging defense witnesses to explain and back up their testimony to build credibility by anticipating the jury’s questions. Throughout, make use of technology. Jurors expect it, and it’s necessary to hold their attention.

At closing, you’ll urge the jury to reach a verdict in favor of the defense, but has your client authorized you to give jurors an alternative to anchor the position? The jury will not view a reasonable alternative, properly couched in a closing argument, as a concession of liability or a sign of weakness. An alternative damages amount steals the plaintiff’s thunder in terms of imploring the jury to “send a message.” Assure jurors in concrete terms of the accountability conveyed by a modest or even nominal award.

Do not overreach. Newton’s Third Law of Motion teaches that every action produces an equal and opposite reaction. This also applies when attempting to defend the indefensible. If the defendant’s conduct is indefensible (and the case cannot be settled), counsel and witnesses must adjust their approach to defend where the real exposure lies.

Move for judgment. At the close of the plaintiff’s case, the defendant should move for judgment as a matter of law under Rule 50(a). The argument should be sketched out before trial based on the anticipated evidence. Remember that the court might defer even the most meritorious motion for judgment pending the jury’s verdict and post-trial motions. The motion for judgment may be critical to preserve certain post-trial motions.

Stipulate to facts. Offer to stipulate to facts that are unhelpful to the defense, which the court will read to the jury in lieu of testimony. One area for stipulation is the defendant’s financial metrics. A stipulation not only shortens the proceeding; it may be preferable to live testimony that might well captivate the jury.

Object and preserve. Before the trial begins, prepare to lodge appropriate objections, including to the jury instructions. The balancing act—objecting to evidence versus appearing obstreperous—depends on a case-specific mixture of the judge, the pretrial rulings and the potential harm or prejudice arising from the evidence in question.

Watch and adjust. Although it may be off-putting for trial counsel to stare intently at the jurors, there may be others assisting with the trial (co-counsel, electronic technician, consultant) who can unobtrusively focus on the jury’s reactions. Trial counsel should receive real-time feedback on them and adjust the presentation accordingly.

A looming punitive damages instruction raises the stakes at trial. As such, defense of the punitive damages claim must always be an integral part of the defendant’s case.

David D. Yeagley is a partner at Ulmer & Berne. David is a trial and appellate lawyer whose practice focuses on class action and complex litigation. David’s practice encompasses the defense of consumer protection and deceptive practices litigation, warranty and false advertising litigation, insurance policy litigation, TCPA class actions, real estate and construction litigation, director, officer and shareholder rights litigation including D&O and derivative claims, credit card litigation, food advertising and marketing litigation, automobile franchise litigation, investment fraud and securities litigation, business contracts litigation, defective products and Magnuson-Moss Warranty Act litigation, and environmental and toxic tort litigation. David is skilled in the development of comprehensive class action defense strategies, including jurisdictional issues and the use of early motion practice based on principles under Article III standing, Rule 12(b) and Rule 23. David also has extensive experience regarding arbitration proceedings and the enforcement of arbitration clauses in consumer and business contracts. He has achieved the highest rating, AV Preeminent®, from Martindale-Hubbell®.

Headline Image: ISTOCK/PEOPLEIMAGES, ISTOCK/MESUT UGURLU

Related Articles

The Write Stuff


by Michele M. Jochner

A series of pointers for making your legal writing clear, concise and—crucially—persuasive.

Closed laptop with woman holding pencil

Freedom to Compete


by Alyson M. St. Pierre and Ashley C. Pack

Recent movement at the federal level regarding management-labor relations mean changes to enforcement of noncompete agreements and other covenants could be imminent.

Woman in front of open blue door

Be Careful What You’re Waiving


by Danielle E. Tricolla and Gabriella E. Botticelli

It’s not true that any correspondence between attorney and client is de facto privileged. That protective wall can crumble quite easily, in fact. Here’s a primer.

Multicolor envelopes flying out of laptop screen

Best Lawyers Expands with New Artificial Intelligence Practice Area


by Best Lawyers

Best Lawyers introduces Artificial Intelligence Law to recognize attorneys leading the way in AI-related legal issues and innovation.

AI network expanding in front of bookshelf

When Can Ones to Watch Lawyers Be Nominated for Best Lawyers?


by Elizabeth Petit

Transitioning from Best Lawyers: Ones To Watch to Best Lawyers recognition.

Arrow symbolizing Ones to Watch Lawyers transitioning to Best Lawyers

Treacherous Waters, Uncharted Territory


by Bryan Driscoll

Political shifts around the globe this year are forcing international law and business to navigate a more intricate compliance landscape

Man in suit with telescope stands on deserted boat

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipemtn

Critical Period


by Armelle Royer and Maryne Gouhier

How the green-energy raw materials chase is rewriting geopolitics

Overhead shot of mineral extraction plant

Misinformation Age


by Gregory Sirico

As AI weaponizes lies, can global law, corporate business practices and legal associates adapt to the growing threat?

Animated hands shifting sides of a message cube

Ninth Circuit Blocks California’s Age-Appropriate Design Code Act


by Gregory Sirico

The Ninth Circuit halted aspects of the California Age-Appropriate Design Code Act, reflecting free speech issues and the nuanced balance in regulating content.

Two children seated, using laptops

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

The Importance of Content Marketing for Law Firms and Strategies for Success


by Jennifer Verta

Strengthen client relationships, boost visibility and drive growth with effective content marketing tailored for law firms.

Illustration of a central red figure surrounded by gray figures in a circular network

IN PARTNERSHIP

Trial Lawyers Protect Employees, Make Workplaces Safer


by Esquire Bank

Trial lawyers Jeffrey Laffey and Sean Flaherty fight hard for injured workers because of their own personal experiences with the aftermath of workplace injuries.

Lawyers Jeffrey Laffey and Sean Flaherty Protect Employees

How to Optimize Your Law Firm’s Website for SEO


by Best Lawyers

Making the most of your law firm's SEO is vital for marketing your legal practice and driving potential clients to your website. Here are a few basics you should know.

Magnet Attracting Metal Balls Symbolizing Law Firm SEO Strategy

US Criminal Law Legal Guide: Navigating Future Changes in Legislation


by Gregory Sirico

This article highlights noteworthy pending criminal justice reform legislation, such as the Equal Act, the First Step Implementation Act and the Federal Prison Oversight Act.

Capitol building split in half

The Hidden Constitutional Crisis: Maine’s Mounting Criminal Law Catastrophe


by Gregory Sirico

The number of criminal defendants lacking legal representation in Maine is skyrocketing like nowhere else in the US. Is there any stopping it?

Client in handcuffs sits across from lawyer

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background