10. Limit non-real damages

This may be the most important recommendation of all. The greatest contributor to instability within the litigation system has been the growth of outrageous, huge jury awards based on nothing but feelings and sympathy and the desire to punish. In area after area of law, juries have received judicial permission togo beyond real damages (like loss of income, out-of-pocket medical and other expenses, loss of income-earning potential, etc.), to the mushy world of "pain and suffering", "mental anguish", and punitive awards against "bad faith" employers. All sense of proportion has been lost in many of these cases, as multi-million dollar judgments are issued by zealous jury members.

A recent issue of the American Bar Association Journal, reporting on the 10 largest jury verdicts of 1988, detailed awards ranging from $30.4 million for the estate of a Georgia woman killed by a truck with a stuck accelerator to $14 million for an aspiring male model injured in a car accident. In each case, punitive and/or non-economic damages constituted a major (and often the major) portion of the award.[52] The Michigan Court of Appeals was recently reviewing a case in which plaintiffs representing four individuals killed when their coffee machine caught fire due to a defective switch were awarded $42 million by a Wayne County (Detroit) jury. Defendants and additional parties filing briefs with the court argued in their appeal that the award had reached a point where it was "so excessive as to 'shock the judicial conscience.’" [53] Unfortunately, this case was just recently settled before the court could address the issue.

Plaintiffs' advocates have often urged that the pain, anguish and suffering incurred by individuals harmed by wrongful conduct "cannot be measured". A proper response to such an argument might well be, "if it cannot be measured, don't award it". The extravagant lavishing of huge damage awards for non-real, immeasurable damages fails to fit any of the traditional purposes for awarding additional sums. Does it make injured plaintiffs more whole? Does it produce deterrence of wrongful behavior? Does it make the larger community more responsible? At some point, after damages have reached a certain level, the answer has to be no. After that point, there is mere redistribution of wealth, mere punishment, mere expression of unrestrained sympathy. The American system of law cannot sustain itself much longer if this trend continues, because the market will no longer engage in sufficient money-producing activity to afford such absurdly high costs.

It is essential that reasonable limitations be set on non-real damages. If that requires absolute damage award cutoffs or long schedules of damages for various particular types of injury, then such must be the course taken, however "cruel" it might seem in any one particularly grievous case. If the courts are unwilling to show the necessary restraint, then the legislature must act by passing statutory limitations on damages in civil cases.