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http://ssrn.com/abstract=1412864
 
 

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The Decision to Award Punitive Damages: An Empirical Study


Theodore Eisenberg


Cornell University - Law School

Michael Heise


Cornell Law School

Nicole L. Waters


National Center for State Courts

Martin T. Wells


Cornell University - School of Law

June 1, 2009

Cornell Legal Studies Research Paper No. 09-011
CELS 2009 4th Annual Conference on Empirical Legal Studies Paper

Abstract:     
Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about three to five percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.

Number of Pages in PDF File: 26

Keywords: punitive damages, litigation, juries, tort

JEL Classification: K00, K10, K13, K40, K41

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Date posted: June 2, 2009 ; Last revised: July 14, 2009

Suggested Citation

Eisenberg, Theodore and Heise, Michael and Waters, Nicole L. and Wells, Martin T., The Decision to Award Punitive Damages: An Empirical Study (June 1, 2009). Cornell Legal Studies Research Paper No. 09-011; CELS 2009 4th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: http://ssrn.com/abstract=1412864 or http://dx.doi.org/10.2139/ssrn.1412864

Contact Information

Theodore Eisenberg (Contact Author)
Cornell University - Law School ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-6477 (Phone)
607-255-7193 (Fax)
Michael Heise
Cornell Law School ( email )
310 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
607-255-0069 (Phone)
607-255-7193 (Fax)
Nicole L. Waters
National Center for State Courts ( email )
300 Newport Ave.
Williamsburg, VA 23185
United States
Martin T. Wells
Cornell University - School of Law ( email )
Comstock Hall
Ithaca, NY 14853
United States
607-255-8801 (Phone)
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