Jury — continued from Previous Page
the Department of Insurance. Since the document is certified by the Department of Insurance, it is self-authenticated and admissible. Moreover, the company cannot dispute the accuracy of the information because it filed the financials with the Department of Insurance. While there are other extremely reliable sources to obtain the company’s financial statements, such as the on-line information available from A.M. Best, certified financial statements are always the best evidence.
Arguing punitive damages in phase II As with any case, obtaining a favor-
able verdict that includes punitive dam- ages will depend largely on the individual facts of each case. The following are gen- eral techniques that can be used in the closing argument of the punitive damage phase. • Explain the purpose of punitive damages Before even beginning the punitive
phase of the trial, you will know that the jury has already found that the company’s conduct was malicious, oppressive, or fraudulent. While you know that the jury thinks the conduct is really bad, you do not know what they are willing to do about it. It is your job as the trial lawyer to motivate the jury to “send a message”, not just to the defendant in your case, but also to the defendant’s industry as a whole. The starting point is to make sure you explain the purpose of punitive damages.
It is important that the jury under-
stand that the purpose of punitive dam- ages is to protect the public, which includes the members of the jury. One way to accomplish this task is to refer the jury back to the law. For example, one powerful special
jury instruction is the following: The purpose of punitive damages is
purely a public one. The public’s goal is to punish wrongdoing, and thereby pro- tect itself from future misconduct, either by the same defendant or other potential wrongdoers. In determining the amount of punitive damages to be awarded, you are not to give any consid- eration as to how the punitive damages will be distributed.
(Adams v. Murakami (1991) 54 Cal.3d 105, 110; Neal v. Farmers Ins. Group (1978) 21 Cal.3d 910, 928, fn 13) (emphasis added). Thus, in the punitive phase, portray
your role as being one of a public servant. You are advancing the “public’s goal” which is, in part, to punish the defen- dant’s misconduct. Ultimately, the jury should understand that their punitive ver- dict will protect not just an individual or some special interest group, but rather, will protect everyone from future abuses. The jury must understand the importance of their role of protecting the public in the punitive phase. It is important that the jury under-
stand that they have the power to send a warning to the insurance industry that
misconduct will not be tolerated by the public. The jury can do this by setting an example of the defendant. Again, one way to accomplish this is to refer back to the jury instructions, such as the following from the United States Supreme Court: In addition to actual or compensatory
damages which you have already award- ed, the law authorizes the jury to make an award of punitive damages in order to punish the wrongdoer for its miscon- duct or to serve as an example or warning to others not to engage in such conduct.
(TXO Production Corp. v. Alliance Resources Corp. (1993) 509 U.S. 443, 459, 463, 113 S.Ct. 2711, 2721-2722 [125 L.Ed.2d 366]) (emphasis added). The punitive damages that the jury
awards will not only send a message to the defendant on how it should do business in the future, but it will also serve as an example or a warning to other competing companies that the public will not toler- ate such misconduct. Give the jury exam- ples of warnings they see everyday: if a swimming pool is too shallow, it should have a warning; if a product is dangerous, it should have a warning; if a floor is slip- pery, it should have a warning; etc. Just as these warnings must be prominently dis- played to have any impact in the exam- ples given, so too should the jury’s puni- tive verdict be substantial enough to be prominently displayed to the defendant’s industry.
Similar to the purpose of punitive
damages serving as a warning, the jury must also realize that punitive damages should act as a deterrent against future misconduct. Again, the jury’s verdict should not only deter future wrongdoing by the defendant, but also by the defen- dant’s industry as a whole. Another effec- tive jury instruction to establish this point is the following: The object of [punitive] damages is
to deter the defendant and others from committing like offenses in the future. Therefore, the law recognizes that to in fact deter such conduct, may require a larger fine upon one of larger means than it would upon one of ordinary means under the same or similar circumstances.
24— The Advocate Magazine JUNE 2011
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