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With respect to emotional distress damages, virtually every legislative or judicial recognition of emotional distress claims in the past half century (including the U.S. Congress) has presumed (or limited) the recovery to a number in the low hundreds of thousands of dollars. Allowing a jury (as now) to award damages, in its discretion, in line with amounts in like cases, having by necessity already determined its severity, up to that amount would not function as a cap but permit the antagonists some breathing space to concentrate their arguments with respect to excessiveness. If the defendant wants to urge excessiveness (based on comparison to like cases or otherwise) he would be free to do so, albeit against a presumption that the jury is operating within the range of discretion generally accepted in common-law jurisdictions. Likewise, if the plaintiff wants to pursue (or defend) a verdict for more, he or she should be free to do so, but with a real evidentiary basis (including perhaps comparison to like cases) to do so.

A judge considering any judgment for excessiveness should be performing a reasoned analysis, not simply pulling a declaration out of his hat that is to the liking of one litigant or the other. Simply leaving the compensatory quantification issue to the discretion of jurors and affording a form of inexpressible judicial review on top of it will be hard to defend as against the argument that the state is not affording the federal due process minimum. Reform here is overdue and is surely preferable to collapse. g

By Sarah Hall Hoffman, Pro Bono Programs Director

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