Something old, something new, and something silly about additur/remittitur.

Hanscome died in hospital. His wife and two-year-old son sued for elder abuse and wrongful death. The jury awarded the son $1.8 million, the estate $200,000, and the wife $0. The trial court remitted the son’s award to $500,000 and added $200,000 to the wife’s award (even though her counsel had refused to ask for an additur, presumably trying not to upset his two-million-dollar applecart). Both sides rejected the changes; the court ordered a new trial on damages; both sides appealed.

The Court of Appeals remands the remittitur for reconsideration because it can’t figure out whether the trial court used the right standard. The minute entry indicated that the jury didn’t follow the instructions but at oral argument the court had talked about how it had to use its good conscience and sense of fairness. The judge not only wrote about the right standard but voiced the wrong one, he also implied that the jury should have awarded punitive damages (the instruction had been given) and should have awarded the wife more, so he would have upheld an award totaling $2 million, even though the result of his remittitur/additur was a $900,000 judgment. This last was perhaps the straw of confusion that broke the camel’s back, since one would normally expect appellate courts to act by reading a court’s rulings rather than by interpreting the phraseology of selected comments from the bench.

But this does give us a chance to point out once again that the modern fashion among trial judges to be garrulous and verbose does no one much good. There was a time when good judges knew that they should say nothing and write little; that wisdom has been lost, replaced with the silliness of long conversations and even longer minute entries.

As to the additur, it’s not encouraging to see a court trip over a long-settled point of law that should be at the fingertips (mixing metaphors a bit) of lawyers and judges who try civil cases: you can’t add to a zero. Even the mother agreed to this; you wonder why, since her counsel didn’t want the additur anyway, he hadn’t pointed that out to the trial court.

What he did want now was a new trial but since he hadn’t asked for one below that raised a problem on appeal. He came up with the argument that the trial court could grant her one because the defendants had asked for one, since the court can grant new trial for reasons not raised in the motion. The court holds that a new trial can’t be granted to a party who didn’t timely request one.

Since each party won part of this one, the court awards no costs to either. Defendants asked for fees; the court summarily denies the request because they hadn’t stated a basis for them. This happens all the time. Folks, if you don’t know the law on appeal fees and can’t be bothered to look it up then you’re not exactly wowing the court with your intellect.

The court spends about three pages restating black-letter law on the standards for remittitur/additur, so this may be a useful recent source for citations.

(link to opinion)