$83M verdict against Trump may be too low
Many pundits were shocked by the $83 million verdict against Donald Trump for defaming E.
Jean Carroll after she reported his sexual assault.
Many question whether this award was too high for a defamation case. But only one question is truly relevant here: Will this verdict stop Trump’s hurtful behavior? That and only that is what punitive damages are intended to do.
So far, so good. For at least a few days, the $83 million verdict seems to have done what it was intended to do: stop him from attacking E. Jean Carroll. That could of course change at any moment depending on Trump’s behavior, which has been famously vindictive in the past.
When an individual or institution is liable for egregious wrongdoing and forced to pay a whopping monetary penalty, some people feel squeamish. Some feel that multimillion-dollar awards are excessive almost by definition.
Others wonder whether the whole notion of punitive damages is appropriate, since nothing — not even boatloads of money — can turn back the clock, magically undo egregious harm or even truly repair someone’s devastating pain and loss. In fact, to some, this entire notion of suing for “big dollars” just feels a bit unseemly.
In my years of experience as a trial lawyer, I have occasionally run across people who feel this way. When I engage them in conversation, it soon becomes clear that they themselves have never experienced substantial loss and pain due to a person or company putting selfish gain ahead of public safety.
I sometimes challenge them: “Well, give me an alternative. What other way do you propose to deter wrongdoers from continuing to do wrong? How else might we stop the powerful — in business, in government, wherever — from acting irresponsibly and inflicting harm on the innocent?”
Never have I heard anyone propose any sort of different system.
Monetary damages bring to mind an old adage about our system of government that is often attributed to Winston Churchill: “Democracy is the worst form of government except all those other forms that have been tried from time to time.”
Keep in mind just a few of the most widely known abuses of power that have prompted multimillion-dollar punitive damage awards: the hundreds who died in accidents caused by unsafe cars, the thousands duped by Enron, the millions severely hurt — many fatally — by Big Tobacco’s decades of deception, the incalculable environmental harm following BP’s Deepwater Horizon oil spill in the Gulf of Mexico or the thousands of deaths and 500,000 injuries from Union Carbide’s chemical disaster in Bhopal, India.
Besides hitting them in the pocketbook, is there anything else that might compel reform in such massive industries and might prevent similar catastrophes in the future?
In the interest of justice and sound public policy and maintaining public safety, we as a society must overcome any awkward feelings about compensating the wounded and imposing harsh financial penalties against those who are responsible. We must accept that some billionaires and CEOs and politicians will sometimes carelessly or deliberately focus solely on short-term career advancement or corporate profits unless they fear severe consequences in court.
Still, no one denies that the amount Trump has been ordered to pay Carroll takes one’s breath away. Yet will it get the job done? Time will tell.
All we know for certain is that $5 million was not sufficient. That’s the amount a jury said Trump must give to Carroll for attacking her, both in a department store dressing room and subsequently in social and mainstream media.
After that verdict was rendered, Trump’s barrages against Carroll escalated dramatically in tone and substance.
Will $83 million achieve now what $5 million did not achieve last year?
No one knows, perhaps not even Trump himself, whether he can or will resist the apparently strong temptation to keep saying awful things about Carroll. (In the weeks, months and years ahead, countless journalists will no doubt try and goad him into blasting her.)
If he manages to restrain himself, hopefully Carroll can resume a less stressful, more normal life, with at least a semblance of peace and privacy.
And if he doesn’t restrain himself, it will be obvious that this $83 million verdict was actually too small.
If Trump inflicts more harm to Carroll, I hope she will have the fortitude to pursue justice — and even steeper penalties — against Trump down the road.
I also hope that others who are victimized by high-profile, well-heeled individuals and institutions will be inspired by her courageous example.