Beware Of Ad Damnum Adverstising
I noticed that a colleague of mine here in Connecticut recently filed a couple of police misconduct claims arising under 42 U.S.C. Section 1983. As practitioners in this field know, winning such claims is notoriously difficult. And large verdicts are even more rare..
So I was surprised when I saw the newspaper accounts of these claims.
"What's up?" I asked a friend who seems to know things beyond my ken. "These claims are overstated."
"I think the phone has been slow over there," was the response I got. And it hit me all at once: This is ad damnum advertising.
The ad damnum clause in a complaint is where the lawyer asks for what he or she wants as a result of the lawsuit. Many state courts have jurisdictionally significant amounts that must be plead. In Connecticut, for example, if you want a jury trial in Superior Court, you must ask for at leas $15,000. In a federal diversity action between parties in different states, you must ask for at least $75,000.
But 1983 claims raise federal questions, and when they are filed in state court no amount in controversy need be pleaded.
I am not a big fan of ad damnum advertising. Sure, it makes a reporter's eyes pop. But for all the wrong reasons. It's like Babe Ruth pointing to center field before stepping up to the plate. Except, in the case of a police misconduct lawsuit, the plaintiff is more likely to strike out than hit a home run.
I've had very fluky verdicts in my legal career. In one case against prison guards for beating a prisoner in a failed escape attempt, a jury awarded my client $2.1 million. We would have settled the case for $20,000. Indeed, we were prepared to settle the case for that sum but Attorney General Richard Blumenthal personally vetoed the settlement. Obviously, I was happier with the jury award, although, to be honest, never in a million years would I have foreseen that verdict.
In another case alleging police misconduct, my clients wanted millions for the estate of their teenage son. In this case, police appeared at the boy's home in response to a call about a suicidal youth. After a brief inspection of the home, they left the child home alone. Half an hour later, the boy's father came home to find his son dead from a self-inflicted shotgun blast. The defendants offered hundreds of thousands of dollars after the jury found the cops erred. (This was not a 1983 claim, it arose under state-law negligence.) The estate, represented by the parents of the boy, asked for millions. The jury returned a verdict of $1 dollar. This, too, was a result I never would have foreseen.
Juries can be fickle. They decide cases based sometimes on what the lawyers suggest, but, I suspect, most often based on their collective sense of what justice requires. A lawyer who asks for too much or too little risks offending a jury, or, perhaps, selling his client short.
Years ago, I heard the following story. I don't know whether it is true, but it has stuck with me. A lawyer once asked a jury for $400,000 for injuries his client suffered. The jury deliberated and returned precisely the sum asked for. The lawyer was triumphant.
Years later, that same lawyer was an a social event.
"Remember me?", someone asked, tugging at his arm. "I was on that jury that gave you $400,000."
"Yes," I recall, the lawyer beamed. "I want to thank you for a job well done."
"One thing has always bothered me about that case," the juror said.
"You asked for $400,000. We were prepared to award millions, but we figured you knew what were doing."
The lawyer's smile went from graciously given to defensive.
So why, knowing all this, do lawyers resort to ad damnum advertising? Please say it's not the economy. There's something wrong promising Porsches when Fords are so hard to purchase. Sure, eye-catching headlines might make the phone ring. But to what end?