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Types of Damages

There are various types of damages that should be considered. In fact, a plaintiff and plaintiff's lawyer should always make a determination as early as possible that there are damages worth while pursuing, because what good is a perfect case for liability if the damages turn out to be nominal (the proverbial $1 award, as took place at the trial of the National Football League case during 1986.)

There are "actual" or "compensatory" damages to consider, the amount of damages that can be proven without speculation. You might think that you, as a prospective plaintiff, have been injured in the amount of millions or hundreds of thousands of dollars, but the issue is how much in damages can you actually prove, and what type of proof would you have. You have to consider experts, including CPA's or accountants, and the cost of these experts and the possible use of an economist, to make sure you have all of your bases covered. The cost of proving damages could well exceed the amount of your provable damages.

In medical malpractice or personal injury cases, the amount of "special damages" is often important, because the settlement value of a case is often a multiple of the amount of money spent for medical treatment. Such damages are known as "specials" or "special damages", and have to be calculated and proven separately from the injury itself. The specials are often easy to calculate and prove, but the value of a broken leg or lost arm is more difficult.

Other elements of damage in certain types of cases include "loss of consortium" (loss of spousal relations); "conscious pain and suffering" (the value of the pain experienced by the injured person, in which the length and intensity of the pain are explored).

We can't forget about "punitive damages", in which states vary considerably in the way their law allows punitive damages to be awarded. Also, the U.S. Supreme Court has placed limitations on the amount that can be awarded, to ensure that punitive damages are not confiscatory and that they relate in some fashion to the injury involved. In New York, punitive damages require a showing that there was a wrong to a large group of persons, and that the same wrong to the plaintiff only is not a sufficient basis in New York for awarding punitive damages. Thus, if someone plots against a single person and does grievous harm, the courts in New York are probably not going to permit any award of punitive damages or "smart money" (an award sufficient to make the defendant's eyes "smart" or tear). There has to be a public effect of the evil activities. Other states do not have such limitation, which can account on occasion for plaintiffs choosing a state other than New York (such as New Jersey) in which to commence a lawsuit in which punitive damages is an important component.

"Treble damages" are a statutory form of punitive damages, found mainly in the nation's antitrust laws, and in other statutes where the legislators wanted to punish an errant defendant and invite persons to bring suit, when appropriate, by offering three times the amount of actual damages. There is a growing movement in the antitrust field, started by the American Antitrust Institute, to advocate increasing the "treble damages" to a significantly higher multiple, such as ten times the actual damages. The reason for this is that the high cost of antitrust litigation and the high risk of obtaining nothing has resulted in fewer and fewer antitrust plaintiffs with a resulting distortion in the nation's economy because of the lack of any realistic sanctions for corporations violating any of the nation's antitrust laws.