Ted Olson’s “Top Ten List” of Punitive Damage Characteristics

In his memo, Some Thoughts on Punitive Damages, former U.S. Solicitor General and Washington attorney, Ted Olson, identified some of the unique characteristics of punitive damages:

1. “[P]unitive damages are not damages at all….They are fines, intended to punish or deter.” 

2. “Punitive damages are an anomaly in our civil justice system because they import the public function of criminal justice into what is otherwise thought of as a private system of restorative justice.”

3. “Punitive damages are awarded after trials that do not conform to the procedural safeguards we usually impose in our justice system when criminal punishment is at stake.”

4. Punitive damages are determined by juries. “Juries are remarkably ill-equipped for that task because they sit in only one case, hear evidence only in that case, and are then given very vague guidance with which to form a judgment…They therefore pick numbers out of a hat.”

5. “The standards for awarding punitive damages are invariably elastic, subjective and largely ad hoc.”

6. “[P]unitive damages are highly unpredictable.”

7. Punitive damages “are driven largely by subjective emotions like anger and sympathy.”

8. “[P]unitive damages involve a large dose of retroactivity and ex post facto punishment. Frequently a defendant is punished for an act that was not clearly articulated in advance as something for which punishment would be imposed.”

9. “[P]unitive damages in a business setting usually end up punishing not a corporation or its officers but a set of shareholders… people who are not responsible for the wrongdoing.”

10. “[P]unitive damages are being awarded in increasing frequency and in increasing amounts…. The amounts are skyrocketing out of control.”

“The net result of the convergence of all these characteristics is a capricious, unpredictable, randomly destructive scheme of punishment – the very antithesis of a system of due process.”