Last week, we covered J.K. v. New Horizon, a Minnesota Court of Appeals decision that made passing reference to the trial court’s grant of a new trial based on trial misconduct by the plaintiff’s lawyers in the previous trial in which the plaintiff had won a $13.5 million jury verdict. (The lawsuit was retried and plaintiff won a jury verdict of about $6 million the second time around.)

The large jury verdict tossed out by the trial judge piqued our interest. We dug up Hennepin County District Court Judge Ivy Bernhardson’s order for a new trial to investigate. What had the plaintiff’s lawyers done to deserve this severe set-back? Read the linked decision and see for yourself.

The plaintiff, a small child, was badly beaten by another older child while in the care of a daycare facility.

The plaintiff’s lawyer sought to impose punitive damages on the facility but Judge Bernardson refused to allow plaintiff to seek to recover punitive damages. With one avenue of recovery blocked, the plaintiff’s lawyer simply attempted to pursue an alternate route to try to reach the same destination (Easy Street (a cynic would say)).

Almost all complex systems — of any kind — are kluges (also spelled, “kludges”), defined as workarounds, clumsy, inelegant, inefficient, difficult to extend and hard to maintain. 

All social institutions are kluges by necessity. Society and social systems are composed of competing, inconsistent, disparate, and incessantly mutating interests. Our school systems, our court systems, our governance systems are forever “works in progress,” which we tweak here, resulting in dislocations there, resulting in accommodations somewhere else, causing another problem in a fourth area, etc.

This ceaseless imperfection and imbalance of social institutions comes to mind in connection with our justice system. In J.K. v. New Horizon Kids Quest, Inc., the Minnesota Court of Appeals affirmed the denial of the plaintiff’s motion to add a claim for punitive damages (post, here, decision, here).

Horrific life-altering harms suffered by the likes of J.K. will always and undoubtedly stoke people’s bottomless grief and righteous outrage. Such emotions underlie all claims for punitive damages. Minnesota courts, as we have commented many times before, are extremely reluctant to allow Minnesotans to seek punitive damages. But this hostility to punitive damages (expressed by our legislature and by our court system, as well) will not make the desire for punishment go away; it will inevitably force the expression of these profound and intense emotions to come out in other ways.




2 Comments on “The Justice Kluge

  1. Joshua Williams

    Man oh man. The notion that arguing deterrence is *only* appropriate in the context of punitive damages is a scary one. And inconsistent with SCOTUS precedent.

    “Deterrence is also an important purpose of this system, but it operates through the mechanism of damages that are compensatory—damages
    grounded in determinations of plaintiffs’ actual losses.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 2543

    1. Seth Leventhal

      For sure, the concept of “compensation” vs. “punishment” are much more complicated and subtle than we all think on first glance. Yesterday, the U.S. Supreme Court grappled with this issue in Goodyear Tire & Rubber Co. v. Haeger. Maybe the unanimous court did not grapple enough? I am still reviewing the opinion but it requires tying an attorneys’ fee sanction “causally” to “legal fees paid by the opposing party.” One wonders whether the U.S. Supreme Court Justices ever heard of contingent fee litigation? And the Court suggests that the trial courts are to do “rough justice,” rather than “auditing perfection,” which can, “in exceptional cases,” result in an award of 100% of a litigant’s legal fees. And the Supreme Court also says that trial court’s “superior understanding of the litigation entitles them to “substantial deference on appeal.” But not the trial court in the Haegers’ case apparently…


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