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Punitive Damages: Strategies for Trial and Appeal; Statutory and Constitutional Boundaries

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, June 25, 2019

Recorded event now available

or call 1-800-926-7926

This CLE course will equip both plaintiffs and defendants with the tools necessary to handle punitive damages issues on trial and appeal. The spectre of punitive damages looms large when injury is involved. Counsel must understand both the applicable substantive state law as well as the constitutional backdrop and must develop effective trial strategies to persuade juries either that a serious wrong must be righted or that no punishment is warranted.


A jury may award punitive damages when the defendant's conduct meets some heightened standard of culpability, which varies--at least in wording--from state to state. Phrases like "conscious disregard," "willful and wanton," "reckless indifference," and the like appear in statutes or judicial decisions, but only real-world experience can help give meaning to these phrases.

Proving or defeating punitive damages requires three victories: winning the initial phase of the trial, winning the punitive damages phase of the trial, and challenging or defending the outcome in post-trial motions and on appeal. Winning at trial--either as plaintiff or defendant--requires knowing what evidence is admissible and persuasive. The legal and tactical questions play out against the backdrop of constitutional limitations on punitive damages.

A victory, of course, is not a victory unless it can be collected. Counsel should consider whether a finding of intent will mean that insurance will not cover the award. Further, many statutory schemes require at least some portion of the damages to go to the state, not the plaintiff.

Listen as our seasoned panel speaks to issues concerning plaintiffs and defendants and provides vital knowledge as to how to prove and uphold the client's desired result.



  1. Standard to recover punitive damages
    1. Intentional/wilfull/malicious
    2. Recklessness/indifference
  2. Procedural issues
    1. Timing for discovery
    2. Bifurcation
  3. Collection
    1. Insurance
    2. Payment to state
  4. Constitutionality
  5. Appeals


The panel will review these and other topics on the subject:

  • Understanding similarities and differences in state punitive damages statutes and common law
  • Tactical issues, such as whether to seek bifurcation, whether to introduce evidence of other penalties the defendant has paid for the same conduct, whether to raise an advice-of-counsel defense, etc.
  • Evidentiary issues
  • Making and preserving the record for appeal
  • Appreciation of collection issues, particularly insurance


Chesin, Scott
Scott A. Chesin

Mayer Brown

Mr. Chesin is a partner in the Supreme Court & Appellate practice in Mayer Brown's New York office. He handles...  |  Read More

Nemetz, Miriam
Miriam R. Nemetz

Mayer Brown

Ms. Nemetz is a member of the Supreme Court & Appellate practice in Mayer Brown’s Washington DC office. She...  |  Read More

Tager, Evan
Evan M. Tager

Mayer Brown

Mr. Tager is a member of the firm’s Supreme Court & Appellate and Class Action practices, recognized by...  |  Read More

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