What Is Remittitur?
A "remittitur" is the "process by which a court requires either that the case be retried, or that the damages awarded by the jury be reduced." Black's Law Dictionary (11th ed. 2019)
It is a procedural device defense lawyers use when they lose at trial. Remittitur seeks to reduce the jury's verdict.
The standard to be applied by a trial judge in determining whether a new trial should be granted or reduced because of the excessiveness of the jury's verdict has been described as "grossly excessive” or “shocks the conscience of the court." That is a tough standard and that is why remittitur is and should be rarely prescribed.
Defendant's lawyers ask for remittitur when they lose and the jury awards more in damages than the defendant thinks is reasonable. "The jury was inflamed by sympathy," they always complain. If the trial judge agrees that the jury verdict is excessive, the judge may order a new trial or reduce the amount of the jury award.
- Lots of example remittitur motions
This leaves the plaintiff with a choice to either accept the reduction or demand a new trial. If the plaintiff agrees to the remittitur-reduced verdict, the plaintiff loses the ability to appeal the remittitur is entered.
Appeals of a judge's remittitur are really tough anyway. The granting or refusal of a remittitur is largely within the discretion of the trial court. The Maryland Court of Appeals has stated that an appellate court will review the trial court's discretionary decision regarding a remittitur only “under extraordinary circumstances.”
That is a tough hill to climb. The trial court is presumed by the appellate court to be capable of making the decisions about whether to grant a remittitur and in what amount based on its own assessment of the evidence, including the credibility of witnesses which is never something that an appellate court could do.
- Sample motion opposing remittitur
If you are researching the key Maryland remittitur cases, this will get you off to a good start:
- Hebron Volunteer Fire Department v. Whitelock, 166 Md. 619, 628 (2006): The standard for determining whether a new trial should be granted due is "whether the verdict is 'grossly excessive, ' or 'shocks the conscience of the court, ' or is 'inordinate' or 'outrageously excessive, ' or even simply 'excessive.'" This court also underscored the broad discretion trial judges have in their determination of the amount of an appropriate remittitur that will ensure that the award is "full and adequate compensation for the plaintiff's injuries after lopping off the excess amount of the jury's verdict. Owens-Illinois, Inc. v. Hunter, 162 Md. App. 385 (2005): "Under Maryland Rule 2-533, trial judges have broad discretion to grant conditional new trial motions, requiring prevailing plaintiffs to agree to remittitur or face a new trial."
- Banegura v. Taylor, 312 Md. 609, 624 (1988): A trial court must grant a new trial or remittitur if the verdict is "grossly excessive," "shocks the conscience of the court," or is "inordinate" or "outrageously excessive. "
- Podolski v. Sibley, 325 Md. 420 (Md. Spec. App. 1971): Remittitur may be entered based on a motion for a new trial
- Conklin v. Schillinger, 255 Md. 50, 69 (1969): One factor courts may factor the proportional relationship between noneconomic personal injury damages awarded and the compensatory damages deriving from the same injury.
- Turner v. Washington Suburban Sanitary Comm'n, 221 Md. 494 (1960): Remittitur is a well-established practice in Maryland).
This 4th Circuit case contains great language attorneys in Maryland personal injury cases trying to fend off a remittitur. This case involved a car accident where Plaintiff suffered personal injuries and lost wages when he was struck by a moving freight car. Plaintiff was struck on his right side, receiving the greatest impact in his chest. As a result, Plaintiff spent twelve days in the hospital where his chest was bound. He was given opiates and injections to relieve his pain.
After leaving the hospital, he continued to have pain in his chest and left knee. It was later discovered that he had a torn cartilage in his left knee as a result of the accident, and he returned to the hospital for yet another twelve days to have the cartilage removed. When the plaintiff finally got out of the hospital, he had to use crutches for six weeks and keep his knee bound. He underwent deep heat therapy twice a week for fourteen months following the injury.
During this period he wore a harness around his chest to aid his breathing and to relieve his pain. He was out of work for five months, incurring $ 2,400 in wages. The jury awarded Plaintiff $21,400. Of course, this does not sound like just compensation for this accident given the extent of these injuries but this was a lot of money in 1956 in West Virginia.
In considering the remittitur question on appeal, the Fourth Circuit quotes language from a West Virginia state case: The court is unanimous in the view that the verdict is probably excessive. But a majority will not disturb the jury's verdict except where it plainly appears to have resulted from mistake, partiality, passion, prejudice or lack of due consideration. Most judges, thankfully, defer to juries unless no reasonable jury could give such an award.
If you get hit with a remittitur motion after a good win, you should look at these resources: