How to Get Punitive Damages Without Suing

Four Parts:Understanding DamagesGetting What You Want Without SuingDeciding to SueBeing Awarded Punitive Damages

First things first. You cannot get punitive damages from anyone without suing them. A lawsuit is a necessary condition for getting punitive damages, because punitive damages exist to punish a particularly egregious tortfeasor, and that determination can only be made in court. While it might be possible to get a settlement prior to the conclusion of a trial, an offer of settlement will almost always be made because a lawsuit was initiated. Even if you are offered a settlement for agreeing not to sue, you should not accept it under any circumstances without the counsel of an attorney.

Part 1
Understanding Damages

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    Consider the purpose of a lawsuit. In order to understand damages, you first need to understand the purpose of the civil legal system. The civil legal system, as opposed to the criminal legal system, is a venue where a person who feels that they have been non-criminally wronged can seek compensation.
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    Understand how damages fit into a lawsuit. That compensation the plaintiff seeks in a lawsuit comes in the form of damages, or much more rarely, in orders. Damages, therefore, are monetary sums which are paid out to restore the plaintiff to the position they were in before they were harmed.[1]
    • Nominal damages are small amounts of money (usually $1) that are paid to a party in a lawsuit whose claim is technically correct, but has in fact suffered no economic injury.
    • Compensatory damages are paid to compensate the party who was harmed--to restore them to their original position before they were harmed. These include damages for pain and suffering as well as purely economic damages.[2]
    • Punitive damages are awarded only very rarely. Punitive damages are levied against a defendant whose conduct was so egregious that the jury wants to punish them for their conduct, to deter future potential bad actors from behaving similarly.[3]
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    Consider the nature of damages. Damages are the desired result of a lawsuit. Therefore, they are synonymous with "award" in this context, as in, "the jury awarded the Brown family $1 million in their wrongful death suit." Since damages are something that a jury awards as a result of a lawsuit, then a person cannot "get damages" without suing. Moreover, punitive damages are awarded in less than 10% of all cases. If you can't get damages without suing, that goes double for punitive damages. Even if you win your case, you're very unlikely to get punitive damages. [4]

Part 2
Getting What You Want Without Suing

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    Just ask in person. If you're reading this, you probably feel wronged in some way, and believe that as a result of this wrong, you have suffered harm and deserve compensation for it. You might be right. You might even be so right that if you just explain your situation to the person you think wronged you, they might agree. As a matter of fact, they might agree with you so wholeheartedly, that upon hearing your tale of woe and agreeing with you about your raw deal, that they just give you what it is you're asking for. [5]
    • This is a strategy that works surprisingly often, so don't discount it completely. Keep in mind though, one of the reasons that it works so often is because people more often have small problems than large ones. Many times it is easier to solve a small problem than a larger one, and you should expect no different here. If your suit was ruined because an employee at the grocery store dropped a twelve pack of Coke at your feet and the cans all exploded, you stand a much better chance of being compensated without a fight than you do if you slipped on the Coke and ruined your knee.[6]
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    Talk to someone higher up the chain of command. This can mean a great deal of things depending on your context. In one situation it might mean that you call the corporate customer service line of a large franchisor. In another situation it might mean that you put in a call or an email to a store owner or district manager.[7]
    • Individuals at higher levels of management oftentimes have a different set of concerns than lower level managers. For instance, a store manager has to be accountable for the profits and losses of an individual store, whereas corporate customer service may be more interested in reputational concerns.
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    Take it to the streets--the metaphorical streets. And by streets, of course we mean social media. Facebook, Twitter, and Instagram (and platforms like those) can be an invaluable resource for the disgruntled consumer.[8]
    • Explain your problem to the world of social media in accurate but catchy terms. Your problem needs to cut through the noise of the online world.[9]
    • Post it to the pages of the business you feel has wronged you. Cross-post it like crazy--to friends, notable organizations, media, and so forth. With any luck, the prospect of a lot of ugly public exposure will make the business that wronged you reconsider their decision not to compensate you. The idea is that the loss of reputation will cost them far more than compensating you will. Therefore, its best to compensate you and minimize the damage.[10]

Part 3
Deciding to Sue

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    Consider the costs to yourself. If you make no headway by complaining, but still feel that your grievance must be remedied, then it's time to consider a lawsuit. Take into account the injury, the cost of the suit itself, and the cost in time and aggravation.
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    Consider the costs to others. Keep this in mind if you've suffered a serious injury, and especially if you've suffered a physical injury. If you sustained such an injury as a result of the negligence of the other party, you should strongly consider a lawsuit.
    • Remember, part of the reason for the court system is to establish official records. If a business was chronically negligent, resulting in not only injuries to yourself, but injuries to others afterwards, there needs to be a record of that. A business that was negligent once probably won't have to pay out any punitive damages. But a business that have injured several people on several different occasions might be ordered to pay punitive damages, and if that is all that will deter them from future carelessness, they should pay punitive damages. So even if your first inclination is not to involve the court system, remember that it might have effects on others in the future.[11]
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    Find a good lawyer. Contact your state's lawyer referral service and sit down for a consultation with an attorney. They can listen to your problem and give you their own professional opinion as to the merits of your case. For more details on selecting an attorney, see Hire a Trial Lawyer or Decide if You Have Hired the Best Attorney for Your Issue for more details.

Part 4
Being Awarded Punitive Damages

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    Know the types of cases that permit punitive damages. In general, punitive damage awards are most often found in tort cases and personal injury claims. These are civil matters (as opposed to criminal matters) that involve particularly egregious behavior by the defendant. For example, punitive damages may be available in a wrongful death suit or in the case of gross negligence.
    • Punitive damages are not usually available in contract cases.[12]
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    Research what you need to prove in order to get punitive damages. In order to get punitive damages, most courts will require you to satisfy a number of legal elements. Those elements include:
    • The plaintiff must be awarded another type of actual damages, which will include compensatory, nominal, or restitutionary damages. Punitive damages are never awarded alone.
    • The defendant must have acted in a way that rises above simple negligence. In most cases, the defendant will need to have acted purposefully or maliciously.
    • Punitive damages are usually only available when the plaintiff has been directly harmed.
    • Punitive damages must be "relatively proportionate" to the actual damages.[13]
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    File a lawsuit. If you believe you have a case where punitive damages are available and you believe you can prove all the elements necessary to be awarded punitive damages, then you will need to file a civil lawsuit against the soon-to-be defendant. To file a lawsuit, you will need to draft and submit a complaint to a court with jurisdiction over the case.If you are not sure how to fill out a complaint or where to file it, check with your local court website or visit the courthouse personally.
    • When you fill out your complaint, you will need to notify the court that you are asking for punitive damages. Somewhere in your complaint, state the amount of damages you are seeking and the rationale behind your number.
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    Take your case to trial. Once you have filed a lawsuit, you will need to take that case all the way to trial. If you want punitive damages, you cannot settle your case before the trial. In order to do this, you will have to take part in discovery, pre-trial hearings, and other court proceedings the judge may require.
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    Convince a judge or jury that punitive damages are warranted. Once your trial begins, you will need to convince a judge or jury as to why the defendant should be punished with punitive damages. If you can convince the judge or jury that you meet all of the requirements, they may award those damages. It is often difficult for a court to determine the amount of punitive damages that should be awarded. You can help the judge or jury by following the guidelines of your state and by reading past court cases concerning punitive awards.[14]

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Categories: Civil Litigation