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Punitive-damage reform takes a big step in the General Assembly

Punitive-damage reform takes a big step in the General Assembly

Date published: 1/20/2006

The punished

That's all Virginians, when lawyers rule

ON TAXES, a philosophical chasm separates House of Delegates Speaker Bill Howell, R-Stafford, and state Senate Finance Committee Chairman John Chichester, R-Northumberland, but the two legislative heavyweights have come together to support an important judicial reform--the rationalization of punitive damages.

As Walter Olson writes in his book "The Rule of Lawyers," the awarding in civil trials of punitive damages--those intended, as the name denotes, to punish one party--is normally a large crapshoot in this country, with the punishment hinging upon "jurors' subjective anger, sympathy, lawyers' eloquence, and random factors." In 1988, the General Assembly, to its great credit, capped such damages at $350,000. But even in Virginia, to again quote Mr. Olson, "Punitive damages are handed down in the absence of a range of due-process protections enjoyed by defendants in criminal cases."

That's unjust, because punitive damages are simply gussied-up criminal fines imposed by civil juries. That being the case, punitive awards should go to the same place that criminal fines go--the public treasury, there to serve the general welfare. Instead, punitives are divvied up among lawyers and their clients, providing a built-in incentive to maximize them--never mind the effect on the workers and investors in a gratuitously chastised company.

A measure introduced by Messrs. Howell and Chichester would change that in Virginia. Any punitive damages awarded by a jury would be channeled into the state Literary Fund, where they would aid the state's poorer school districts. Warm, draft-free classrooms in exchange for trial lawyers' Caribbean condos will strike most Virginians as a fair trade.

Virginians injured by negligent firms or individuals would still receive compensation for pain, lost income, and the like. And under the Chichester-Howell proposal, justice itself would no longer be punished by a racket that for too long has abused its good name.

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Date published: 1/20/2006