Appellate Review of Civil Damage Awards
Mischel & Horn, P.C.
By: Attorney Scott T. Horn, Esq.
Having been a Law Secretary to an Associate Justice of the Appellate Division before entering private practice, and having since been called upon to provide appellate representation for plaintiffs and defendants alike, I can confidently state that there are not many issues on which plaintiff’s attorneys and defendant’s attorneys concur. One of those rare instances in which both sides are seemingly in agreement concerns the appellate review of civil damage awards.
That is not to say, of course, that everyone agrees with the final accounting that is ultimately rendered the particular appellate courts. In fact, many appeals attorneys perceive that their arguments are better perceived in some appellate courts simply because they represent a plaintiff or a defendant. Whether these perceptions of “pro-plaintiff” and “pro-defendant” appellate courts are accurate is itself a subject of some controversy.
What everyone does seem to agree upon, however, is that when the Appellate Division is called upon to review the propriety of damage awards, the resultant decisions are almost uniformly devoid of germane information. Injures are discussed only in the most general terms, if at all. Moreover, the periods of time that the damage award is intended to recompense are rarely mentioned. In short, the factual information which would provide some precedential value for use in future cases, is almost always lacking. This can be exceedingly frustrating to those of us who are confronted with “damage award” issues on a regular basis.
When faced with the obvious problems that are posed by this situation, most attorneys wave the proverbial white flag and resort to a legal argument that is long on facts and short on case law. This approach may be the easiest for counsel, but it also involves the greatest degree of downside risk for plaintiffs and defendants alike. Essentially, this approach tells the court that there are no precedential parameters in place. In the absence of such precedential parameters, the decision-making process treads close to the vagarious, as the justices are compelled to render their determination based upon subjective notions of fairness and judicial instinct. This presents an inherently uncertain situation for both parties, and breeds a discomfort that is particularly acute in those cases involving large damage awards.
Recognizing the importance of prior case law, many attorneys take a proactive approach. They seek out information about relevant cases through various publications, services, and even by virtue of communications with other attorneys practicing in the field. Some attorneys will even go so far as to examine the microfiche copies of the Appellate Briefs and Records/Appendices that are maintained in various places within the First and Second Departments. These microfiche records are a veritable fount of information – – but who has the time for such laborious research exercise?
The following pages are my attempt to obviate the need for such labor by effectively putting some “meat” on the “bare-bones” decisions that are often handed down by the appellate courts. To this end, a wide net has been cast. The information contained in this “Damage Award Database” has been derived from many sources. Generally, each entry for each case contains information from more than one source. In most cases, resort to the aforementioned microfiche copies of appellate briefs and records/appendices was necessary.
It is my hope that this “Damage Award Database” will provide all attorneys who are engaged in this area of practice with the crucial factual information that is not always evident on the face of the appellate court’s decision. I believe that counsel on both sides of the aisle can benefit from a comprehensive, fact-specific database of this nature. The knowledge that comes with the information contained in this “Damage Award Database” may ultimately beget a greater degree of predictability in future cases. In my view, everybody wins under that scenario.
Scott T. Horn
New York, New York
March 17, 2003
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