Great tweet:
Finally, for those holding out hope of an appeal based on an "excessive” award, that doesn't mean what you think it means.
Let’s learn to evaluate this according to the actual rules that apply to damages and how they’re analyzed on appeal…
The $83M consists of two separate awards: compensatory damages and punitive damages.
Compensatory damages are exactly what they sound like. They're designed to make the victim whole. It's a calculation of what you lost as a result of the wrongful conduct. If someone hits my car at a red light, my compensatory damages would include things like the cost to repair my car, my medical bills, and any pay I missed from being out of work. Again, it's designed to compensate me and place me back in the same position as if the wreck never occurred.
Punitive damages are also exactly what they sound like. They are designed to punish the wrongdoer. Not all cases involve punitive damages. In fact, most don’t. The majority of the time there’s no need to additionally punish the wrongdoer. Using the example above, maybe the driver hit my car because they swerved to avoid a child. There’s no bad behavior there that needs to be deterred in the future.
Punitive damages are therefore, by their nature, awarded after and beyond all of the money necessary to make the victim whole. That is because punitive damages are not about the victim, they are entirely about the wrongdoer.
The purpose of punitive damages is to deter and discourage the same conduct in the future. They are designed to protect the rest of society from the same type of conduct by the wrongdoer by teaching the wrongdoer that there will be real consequences.
This is where "excessive award" does not simply mean "big number." Punitive damages are calculated by looking at the wrongdoer's net worth and deciding how much money is necessary to teach them a lesson.
A $10k punitive damages award might be more than enough to chasten your average citizen. That's a decent chunk of change. But it isn't enough to deter, for example, a large corporation like Exxon or Boeing. Because of that, the jury is called upon to make a factual determination as to what amount is necessary to teach THIS PARTICULAR DEFENDANT a lesson.
This is why E. Jean's lawyers did such a masterful job of using Trump's own boasts about his wealth against him. They created a factual record within the transcript that Trump has huge wealth, according to his own statements, and that to deter him, a commensurate punitive award was necessary.
As a young lawyer, I listened to a brilliant trial lawyer give her closing argument asking for a big punitive damages award. She explained this concept of proportionality to the jury using the Bible parable about the poor woman who had placed her last two little coins in the donation tray, and the rich man who made a show of filling the tray with gold. The poor woman had given more because the gold was such a puny percentage of the rich man's wealth.
If I have a net worth of $100k then $10k is a reasonable punitive award. If Trump is worth billions as he claims, $83M is a far smaller percentage of his total net worth. Importantly, it's not remotely excessive based upon the factual record in evidence.
And the factual record in evidence is all that matters because that is what is examined during any appeal. Ms. Habba failed to create any type of evidentiary record rebutting the evidence presented by E. Jean's lawyers about Trump's net worth. She didn’t even attempt to, for example, deny that such a sum was out of line with Trump’s wealth.
The jury then evaluated the actual evidence presented to them and determined that $83M was a fair and reasonable amount necessary to deter someone with billions. This type of finding of fact by the jury is given high deference on appeal because they were the individuals present in the courtroom to hear and personally evaluate witnesses and evidence.
A large punitive award is not "excessive" because it is large. It becomes "excessive" if it is completely out of proportion to the wealth of the individual or the compensatory award.
The ratio here is squarely within acceptable limits, and, frankly, even if it wasn't, Ms. Habba failed to create any countervailing record (generally, that's done by putting the Defendant on the stand and letting them testify to their lack of wealth; obviously Trump was never going to do that).
This is all very basic, non-controversial stuff in the legal world.
But now next time you hear someone spout off about "appeals" or "excessive" awards, you'll know the actual rules of the game.
