Abstract

This article, which is still a work-in-progress, offers a proposal for improving the jury's measure of noneconomic compensatory damages. Such damages are awarded as compensation for those harms that are incommensurable with money and cannot therefore be objectively measured in pecuniary terms (e.g., pain and suffering, emotional distress, loss of consortium, etc.). The current system of valuing such harm relies entirely upon the standardless discretion of jurors and is restrained only by limited and deferential judicial review. It is a system that produces widely disparate awards for similarly situated tort victims and creates predictability problems that make it all but impossible for litigants to make reasonable evaluations regarding the value of their respective cases. The current system of calculating noneconomic compensatory damages has given courts, commentators, and policymakers alike ample opportunity to criticize the tort system as a whole and the jury system in particular. Although some scholars have called for the outright elimination of noneconomic compensatory damages, others have recognized the persistence of American tort law's commitment to them and to the role of the jury in their measure. These scholars have proposed alternative methods for assisting the jury in its task. Nevertheless, these proposed alternatives have largely fallen on deaf ears primarily because they rely upon the creation of predetermined and relatively complex guidelines, schedules, and/or matrices or upon the identification of prior jury awards from sufficiently similar cases. Put simply, these proposals have been too complicated to be politically feasible. Thus, from a reform perspective, the trend over the past three decades has been one of statutory caps. Nonetheless, caps maintain (and perpetuate) the current system of standardless jury discretion and limited, deferential judicial review. They do nothing more than set legislatively determined upper limits for damages award and ensure that those victims most in need of noneconomic compensatory damages will be unable to recovery them. Caps have received much criticism in the academic literature, but this article argues that our failure to acknowledge and to rectify the deficiencies in the current system essentially created the political opportunities that tort reformers used to push successfully for caps. Our continued complacency in this regard may very well invite more restrictions on recovery for noneconomic compensatory damages, including the outright elimination of them. The proposal put forward by this article is rather simple. It argues that a plaintiff seeking noneconomic compensatory damages in tort should be required to take the stand during trial and affirmatively testify to a specific sum of money that he or she subjectively believes would be reasonable compensation for his or her noneconomic harm (i.e., a testimonial ad damnum request). In many ways, this proposal is similar to the current practice in many jurisdictions of allowing the plaintiff's attorney to make an ad damnum suggestion to the jury during closing argument. Nonetheless, my proposal differs in three important respects. First, the plaintiff's ad damnum would be required rather than merely permitted. Second, the plaintiff's ad damnum would testimonial. It would be evidence, not argument. The plaintiff would be required to own his or her own part in the process of pricing his or her noneconomic harm and would not be allowed to distance him/herself from the request through the proxy of counsel. Third and most importantly, the plaintiff's recovery for noneconomic compensatory damages would be limited to the amount requested at trial. Jurors would be not be bound to give all that is requested, but they would also be instructed not to exceed the ad damnum. The primary benefit of this proposal is that it provides case-specific predictability of the noneconomic component of a potential compensatory damages award in any given case. The plaintiff would undoubtedly be required to disclose the amount of his or her anticipated ad damnum to the defendant during discovery, so the upper limit of the defendant's liability exposure would be established early during the pretrial process. The lower limit would, of course and as always, be zero. With the range of possibility outcomes set so early in the process, the potential for settlement would increase substantially. The second benefit of this proposal is that it maintains case-specific flexibility. That is, it accounts for the peculiarities of the facts specific to any given case by allowing (and requiring) the plaintiff to establish the upper limits for potential noneconomic recovery. Essentially, the process of awarding compensatory damages for noneconomic harm is a process of objectifying that which is inherently subjective. In the entire universe of individuals, the one person in the best position to make the leap from subjective to objective is the very person who subjectively experiences the noneconomic harm (i.e., the plaintiff). Accordingly, the testimonial ad damnum operates as a case-specific cap on noneconomic compensatory damages, but it is a cap set by the plaintiff him/herself. Of course, the plaintiff has every incentive to ask for as much as he or she believes the jury will award, but this article will also argue that the plaintiff (and his or her attorney who would undoubtedly advise the plaintiff regarding the ad damnum) has equally compelling strategic incentives to avoid overreaching in his or her request to the jury. The final benefit of this proposal is its simplicity and thus its political feasibility. Rather than relying on intricate guidelines, schedules, and/or matrices or creating new phases of civil litigation during which parties dispute whether prior awards are from sufficiently similar cases, this proposal relies on only slight modifications to existing substantive and procedural rules.