Class 23

Of course, plaintiffs bring tort claims because they pursue damages. The availability of damages depends on a number of variables. In practice, tort damages are mediated heavily by the contingency fee: a fee for legal services paid as a percentage (usually around one-third) of total damages the plaintiff receives. Some contend that the contingency fee is an essential way to provide legal services to clients who do not have the cash on hand to pay a lawyer—especially after suffering an injury that may have caused high medical expenses and unemployment. But the contingency fee has been blamed for spiraling tort costs and concentrating excessive power in the hands of plaintiffs’ lawyers.

Damages also depend on the defendant’s insurer, who is often the third party in any lawsuit. Insurers may have different incentives than those than they insure when it comes to settlement or to the precedent a case may set. And policy limits may shape the amount of damages plaintiffs seek. Finally, insured parties may have suits against their insurers for acting in bad faith—essentially, for failing to represent their interests.

Plaintiffs must also prove that they have suffered real harm. The most straightforward category of damages involves so-called pecuniary damages. These cover things like lost wages and medical expenses. But even these damages can be hard to calculate. How can courts project future wages or medical expenses? Even more controversy surrounds nonpecuniary damages, such as money for pain, suffering, or environmental damage. Courts grapple with how to measure these harms—and whether they serve the goals of tort law in the first place.

Finally, we will study punitive damages. Punitive damages, unlike compensatory damages, are not designed to make the plaintiff whole. These damages in theory serve to deter defendants who may not much affected by pecuniary damages in a specific case. But punitive damages too are controversial. Some have argued that juries use these damages to punish unpopular defendants—a move out of step with the goals of tort law. Deterring dangerous conduct certainly seems desirable. But why should plaintiffs receive money beyond that which would make them whole? Punitive damages have also raised constitutional questions. Are some damage awards so high that they violate our fundamental ideas of due process?