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Litigation Corner:

Paralegals and Punitives

Organization is key when dealing with motions for punitive damages.

By Catherine Astl, CLA

May/June 2006 Table of Contents


Punitive damages — meant to penalize for wanton, malicious or egregious negligence — are what plaintiff firms dream of and what defense firms fear most. After all, if a judge allows a jury to deliberate punitive damages, there is almost no limit to what a jury might award. Historically, awards have been rendered for millions, even billions of dollars. Given the large stakes involved, where do paralegals best fit into the picture?

First, it’s important to note that punitive damages — sometimes called punitives — are not claimed or even essential in just any case. In 2001, the U.S. Department of Justice, Bureau of Justice Statistics reported that the type of tort cases in which plaintiff winners were most likely to receive punitive damages included slander/libel (58 percent), false arrest/imprisonment (26 percent) and intentional torts (36 percent). (Intentional tort cases that might claim punitives include malicious prosecution, medical malpractice, nursing home abuse and product liability.) Further, punitives typically are used in more egregious cases. However, be aware that recent tort reforms have limited awards for punitive damages in some states including Mississippi and Texas, according to the American Tort Reform Association.

Second, keep in mind that there is a whole process before a jury can even consider punitive damages in a case. In most jurisdictions researched for this column, a party must move — in the form of a separate, formal motion — for leave to file a claim for punitives. These motions generally are titled “Motion to Amend Complaint to Assert Claim for Punitive Damages,” or something similar. Typically, a supporting memorandum of law or proffer accompanies the motion. Then, counsel must appear before a judge to argue its cause. As in any other motion, the judge either grants or denies the motion for punitive damages. If granted, the jury deliberates punitives.

A plaintiff’s motion for punitive damages (or a response to this motion, if you work for the defense) is the key to getting your process started, and this is where para­legals come in, reviewing deposition transcripts, gathering documents and helping to put together a complete and organized motion.

Deconstructing Depositions

Whether you work for the plaintiff or the defense, your first step is to devise a game plan with the attorney. Who will review which depositions? What are the hot button issues? What evidence will the attorney focus on? You should know exactly what the attorney wants before you start your intensive research pursuits.

Once you have a plan, you can start reviewing the depositions. By the time a case is ripe for a claim for punitives, most depositions, particularly crucial ones such as experts, have been taken. Read each transcript, searching for any testimony to prove punitive damages.

For example, deposition testimony would be red-flagged if a deponent (a witness in a slander case, for instance) states that the defendant mentioned several times that what he said about the plaintiff was wrong and an outright lie, but he said it anyway. The testi­mony would be included in the plaintiff’s motion for punitive damages as evidence that the defendant willfully, knowingly and maliciously slandered the plaintiff.

In this scenario as a defense paralegal, you might examine deposition testimony for information that shows your client didn’t willfully lie and slander the plaintiff, thought what he said was the truth or shows his statements were mere opinion speech (a common defense to slander or libel in most jurisdictions).

When I review a deposition, I find it helpful to make a copy so I have free reign to highlight and tab key passages for easy reference. Also, for each deposition I review, I keep a log on the computer of the deponent’s name, date of deposition and each passage I deem helpful or that I highlighted. I enter the page and line numbers, and either type verbatim or paraphrase the passage. An attorney easily can review the log for a summarization or go to the exact page and line numbers if he or she needs to further review the transcript.

Gathering Documents

Charged with the burden to show that a case should include jury deliberations on punitives, the plaintiff’s side must gather documentation to prove that an entity, corporation or person was outrageously negligent or malicious enough to require punishment.

For example, in a nursing home abuse case, documentation might include proof of ownership and control of the premises, licenses, incident reports and inspection reports. Past incident and inspection reports might unveil a pattern of abuse and inaction on the part of the nursing home’s management. You can submit a written request or subpoena most of these documents from the state agencies in charge of nursing homes or elder care, or obtain them through the discovery process.

Finding all the relevant documents can be daunting and tedious, but it’s how paralegals spend much of their time on a punitive damages motion or in response to one. On one case, I felt extremely intimidated by the stacks of binders, reams of paper and heaps of medical records that surrounded me. The best advice I can offer is to work systematically. For example, review all medical records first, then move on to incident reports or inspection reports. As with the depositions, stay organized by keeping a running log of each document you have reviewed and the inform­ation in that document that you think is pertinent. Copy anything you find so you can highlight key inform­ation for easy reference.

Motioning for Support

After meticulously sifting through the files for treasured information, what do you do with all of the documents and testimony?

For the plaintiff’s office, you must gather this information into a memorandum of law or proffer. I recently worked on a memorandum of law in support of a motion for punitive damages that included a factual history outlining in detail the timelines and undisputed facts. Since the particular case involved malicious prosecution, the memorandum continued with an argument on each element essential to proving punitives, complete with case law, excerpts of deposition testimony and admissions from the defendant through written discovery and depositions.

A memorandum or proffer can be lengthy, involving hundreds of pages of documents. For example, Lytal, Reiter, Clark, Fountain & Williams, a personal injury law firm based in West Palm Beach, Fla., reported its attorneys were granted a motion to add a claim for punitive damages to a wrongful death lawsuit involving defective tires. Accord­ing to a March 2005 press release, the firm’s proffer consisted of “33 exhibits containing hundreds of pages of supporting evidence … indicating that the defendant … had actual knowledge of a safety defect … but despite that knowledge, intentionally continued to manufacture and sell” its tires.

Taking the same scenario, the tire company’s defense team could have prepared a memorandum with facts on recall notices, safety records of the tires and tests showing the tires’ reliability. Even deposition testimony by the plaintiff stating he knew the tires needed to be recalled but did nothing about it could be used to prepare such a defense.

As a plaintiff or defense paralegal, you might be asked to assist in gathering all case law or exhibits for the memorandum or to draft some or all portions of the memorandum itself, which consists of:

  • table of contents;

  • table of authorities;

  • factual history or background;

  • summary of each issue, along with arguments or analysis of the issue (complete with case law, excerpts         from depositions, testimony, etc.);

  • conclusion.

Think practically and have all your supplies and resources ready to go. Most of the time, a memorandum or proffer is prepared with the exhibits in a three-ring binder and tabbed for easy reference. However, some para­legals and attorneys have told me that Micro­soft PowerPoint presentations work extremely well. Be sure to check with the presiding judge to make sure this is permissible. (Some courts still balk at technology.)

When you get down to writing the memorandum or proffer, be clear and persuasive. Remember your audience — the judge — and use prolific examples, quotes and documentary evidence to enhance your cause.

One final tip: In preparing a memorandum or proffer, paralegals on either side should review all written discovery, including interrogatories, requests for production and requests for admissions, depositions and any other evidence. Gems of information often are lurking if someone simply takes the time to find them.

Whether encountering punitive damages in the dreams of plaintiff’s firms or in the haunting nightmares of defense offices, paralegals help attorneys make sure the balance of our justice system remains intact by punishing malicious misconduct or by preventing distorted and unfair jury awards.



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