A Strategic Partner




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As you prepare your complaint and supporting material remember why you are taking your case to court in the first place. It’s not about winning some complicated legal argument. No one cares about your moral victory in court. Beyond winning and losing the points of law, beyond preparing a persuasive case with witness testimony and hosts of evidence, your case is first and foremost about your desire to have a wrong’s losses compensated and made right.


Short of a custodial case or an affirmative order from the judge against your opponent – requiring him or her to take some action or cease taking actions – the court will most likely attempt to right a wrong suffered with some form of a monetary judgment.


The legal term for this judgment is damages and a good definition of damages is “recompense, reparation or satisfaction in money, given in order to make good for a loss or injury sustained.”


Damages can only be caused where recognized rights to property and personal freedoms, and those enumerated in a contract – have been injured. The law is less concerned with an individual’s personal sense of violation than it is with the actual or potential material damages when such a trespass occurs. So, in a libel case for example, you can collect damages based on the financial value of injuries to your good name and reputation, but the court will not give you money for your hurt feelings.


Schachner puts is this way: “The law of damages is a matter of rights. These rights are enforceable against particular persons when a contract exists, and against all the world when the matter concerns property or personal rights (in the case of negligent actions where someone’s rights are invaded).” [3]


Contrary to the expectations of many pro se litigants, damage awards are very well defined and not the pie-in-the-sky windfalls that media headlines love to sensationalize. The law provides that damages be commensurate with the injury suffered. In the event that injuries cause no appreciable loss the court will assign no damages. Still, most courts will generally assume that damages have occurred and accompany a right violated or an injury suffered.


Damages are generally broken into three categories: compensatory, punitive and nominal damages.


Compensatory damages: As the name implies, these damages are awarded to compensate the plaintiff for losses sustained due to the defendant’s actions as outlined in the complaint. Medical bills, costs of repairs, lost wages and income and increased living expenses resulting from injuries – sometimes called pecuniary damages – are easily calculated components of compensatory damages. Non-pecuniary damages are less easily calculated and may incorporate pain and suffering, mental anguish or other debilitating impairment not easily measured in monetary terms.


Contracts frequently stipulate the extent of allowable damage claims. For instance, home sales contracts often limit damage claims to the amount of funds held in escrow in situations when sales fall though. And frequently, statutes also govern or modify the allowable extent of damages for injuries covered by that particular law. Trademark and copyright law, banking law, employment fairness regulations – all of these areas are governed by statutes that stipulate allowable damage claim.


Additionally, before the actual amount of a compensatory damage award is calculated, the court may consider the following to determine fair and commensurate relief for an injury:


Actual losses incurred

Interest lost

Expected gains prevented

The value of the use of the thing

Difference between actual and contract value

Difference between the thing as it is and the thing under a valid warranty


Punitive damages: Also known as exemplary damages, punitive damages are awards to the plaintiff intended to punish the defendant, often for particularly outrageous behavior. Punitive damages also serve to warn others against similar actions. They are typically awarded in cases where the defendant has acted in a malicious, wanton, reckless or otherwise callously indifferent manner.


Punitive damage awards – particularly high-profile jury decisions – are rare and unpredictable and often the headline grabbing cases that insurance companies hate the most. They are like judicial black holes, limitless and crushing in their deterring influence. They also exert their own gravitational pull across the legal marketplace, driving plaintiffs to settle cases they might otherwise win, but can’t afford to risk litigating. Business decision makers are notoriously risk-averse and often focus on minimizing exposure to worst-case scenarios.


But in recent rulings the Supreme Court is signaling a willingness to reverse some of the most egregious awards. In April 2003, the high court struck down a $145 million punitive judgment against a large insurance company saying in its ruling that the original judgment, awarded by a jury and reinstated by the Utah Supreme Court after being struck by the trial court, was “neither reasonable, nor proportionate to the wrong committed, and … was an irrational and arbitrary deprivation of property of the [corporate] defendant. … To the extent an award is grossly excessive, it serves no legitimate purpose and constitutes an arbitrary deprivation of property.” [4]


Nominal damages: A small sum awarded to the plaintiff, perhaps to signal that the court recognizes the wrongful actions or inactions by the defendant, when no actual injuries occurred or are unproven. In cases where the plaintiff is unable to demonstrate losses, but where the court finds that the defendant clearly breached his obligation or invaded the plaintiff’s rights, the court will award nominal damages.


Nominal damages are frequently awarded in pro se cases because inept litigants are unable to establish their losses and entitlement to relief.


Calculated damages are included in the complaint and prayer for relief. It is best to work through your request starting with pecuniary damages and moving to pain and suffering and other non-pecuniary injuries after. The court generally decides the type and amount of damages a pro se may recover as well as determining what if any extenuating factor should factor into its decision-making. The judge or jury may consider for example, whether the plaintiff could have avoided or otherwise mitigated the injuries caused by the defendant.



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