Wednesday, June 25, 2014

When should counsel ask the jury for a specific dollar amount?

In this excessive force claim against police officers, the jury awarded the plaintiff $55,000 for pain and suffering and $2,000 in punitive damages. On appeal, the plaintiff argues that the jury should have awarded more money. The Court of Appeals disagrees.

The case is Stanczyk v. City of New York, decided on June 3. The Second Circuit does not tell us much about what happened to the plaintiff, but it all started when plaintiff was walking her dog. The Court summarizes her case as follows:

Stanczyk claimed that she took her dog out to do its “business,” and her dog complied by urinating. The Officers then approached Stanczyk and accused her of not cleaning up a pile of feces that they claimed had just been deposited by her dog. Stanczyk protested her innocence, but the Officers ordered her to clean up the deposit. She did so and then was arrested either for screaming at the Officers and banging on their patrol car or solely because she did not have identification or a license for her dog on her person. A struggle ensued, and Stanczyk suffered bruising and other injuries – either because the Officers struck her in the head and breasts and slammed the patrol car’s rear door on one of her legs or because she fell to the ground while screaming and resisting the Officers’ efforts to handcuff her.
The City made an Offer of Judgment in the amount of $150,000, plus attorneys' fees. Under Rule 68, if the plaintiff denies the offer and recovers less money at trial, then her attorneys' fees entitlement stops from the date she rejected the offer. That happened here, and the Court of Appeals rejects plaintiff's argument that the Offer did not require any reduction in her attorneys' fees. If you are a Rule 68 junkie, the opinion sheds some light on how that rule works. If you are casual Rule 68 fan, the short answer is that plaintiff has to think long and hard about whether to take the offer and whether it's worth the risk to reject it.

The main event is plaintiff's argument that the jury should have awarded more money. The Second Circuit (Wesley, Carney and Rakoff [D.J.]) rejects that argument, for the following reasons:

1. Plaintiff's counsel did not move for a new trial on damages when the trial ended. So the issue is waived, except that defendant has not highlighted that waiver on appeal. So the Court of Appeals resolves the issue on the merits. The trial court gave the jury sufficient direction on awarding plaintiff future damages for pain and suffering. While plaintiff also wanted the jury to award future medical costs, she did not present to the jury enough evidence of what she actually paid out in medical costs. Plaintiff also did not elicit testimony from her medical providers or experts about these future costs as well. That omission undercuts plaintiff's argument that the jury should have awarded her more money in future costs.

2. In addition, plaintiff's lawyer did not ask the jury for a specific dollar amount during summation. While defense counsel made some inflammatory racial comments in summation, the Court says, "in light of the unique facts of this case, [plaintiff's lawyer's] failure to provide evidence as to cost or to provide the jury with a monetary reference point precludes a finding that the challenged conduct, even if improper, erroneous, abuse of discretion, caused prejudice to the jury's award of compensatory damages."

Many lawyers do not like asking the jury for a specific dollar amount in summation. They do not want to look the jury in the eye and make the presumptuous suggestion about how much money to award their clients. Plus, some people are uncomfortable in general talking about money to strangers. The Court of Appeals is not saying that you have to ask for a dollar amount, but it's the rare appellate ruling that faults the lawyer for not doing that.


Rose Weber said...

But I think you're missing the greater import here. It is the rare federal judge (at least in the SDNY and EDNY) who allows counsel to request a specific amount. There are plenty of cases saying that it's "highly disfavored" in this Circuit. So this is either a major about-face for the Second Circuit or just some weird dictum in the particular context of this case. Only time will tell, I guess.

Second Circuit Civil Rights Blog said...

My guess is that it's dicta and not a sea-change in this area. If the Court wanted to change things that dramatically, it would probably say so.