• December 18, 2012

ContortionistOur legal system has a weakness in converting moral outrage into punishment (or not doing so).

We may be nearly unanimous that intentional wrong-doing warrants greater punishment than unintentional wrong-doing but when does intentional wrong-doing rise to the level where some increased punishment is warranted?  And how much of an increase is appropriate?  And how can we contain the use of this added punitive threat to cases where it is justified?

In a great many legal disputes, our current legal system takes the position that these questions have no place.  People make bad decisions and they may be held liable for their wrong-doing but no one is perfect and imposing punitive damages serves no purpose in cases of ordinary (or professional) negligence or just plain stupid choices.

And allowing every plaintiff to seek punitive damages in every case, leaving it to the trial court or jury to decide six months, a year, or more after a lawsuit is brought to decide whether to award punitive damages, injects a huge element of uncertainty into defendants’ case analysis, creating conditions for plaintiffs to “hold up” or “extort” defendants with the threat of uncertain and large punitive damages on top of other claimed damages.

But there are problems with our state’s solution to the conundrum, Minn. Stat. § 549.20.  It is more or less incomprehensible.

To add a punitive damages claim, plaintiffs are required to make a “prima facie showing” of evidence that could produce in the mind of the trier of fact “clear and convincing evidence” that the defendant “acted in willful indifference to their rights or safety.”  Even without the Latin, this concept is hard to apply.  This is highlighted in Jesse Ventura’s case against Chris Kyle.

Chris Kyle wrote a book in which he and a co-writer wrote that he decked someone he called “Scruff Face,” at a bar after “Scruff Face” had spoken harshly to soldiers at a wake for a fallen comrade.  Kyle later identified “Scruff Face” on a radio talk show as Jesse Ventura in response to an anonymous phone caller’s inquiry.

Here is the problem:  Jesse Ventura says that the entire incident never happened.  Kyle, on the other hand, stands by the story and, in fact, has submitted affidavits of about half a dozen witnesses to the fight.  It falls to Sr. U.S. Judge Richard H. Kyle (D. Minn.) (no relation to Chris Kyle, obviously) to decide whether Ventura should be able to seek punitive damages against defendants.  The law seems to require that he not consider Kyle’s (rather strong) evidence in his favor in deciding whether Ventura has made a “prima facie” case of Kyle’s “deliberate disregard” for Ventura’s “rights or safety.”

This potentially counter-factual legal standard, in turn, leads to some rather convoluted and creative lawyering as seen in Kyle’s lawyers’ brief in opposition to Ventura’s motion to amend to add a claim for punitive damages:

Even if a fact-finder credited Ventura’s initial version (that he was not at McP’s on October 12 and had no encounter with Kyle), that would not supply clear and convincing evidence that Kyle (and his companions) fabricated their own accounts. Plaintiff cannot exclude the possibility that Kyle encountered someone who looked and acted like Ventura.

This sounds somewhat outlandish at first.  Then again, maybe former Navy seal, Greg McPartlin’s bar McP‘s, where this event occurred (or did not occur) is frequented by more human hulks than your average dive.

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