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CHAPTER 8: OVERVIEW OF CIVIL CASES - Table of Contents

8.1 - Introduction8.2 - Where to find civil law8.3 - Starting a civil case: the complaint8.4 - Serving the complaint8.5 - Responding to the complaint8.6 - Requesting a jury8.7 - Alternate Dispute Resolution8.8 - Initial Procedural Requirements8.9 - Pretrial Discovery8.10 - Summary judgment motions8.11 - Trial8.12 - Damages, Costs and Attorneys Fees

8.12 DAMAGES, COSTS AND ATTORNEYS' FEES

Monetary damages can be subject to a contract between the parties which specifies what damages will be recoverable in the event of one party's breach (such damages are referred to as "liquidated damages"). In some instances, a statute will determine (or at least influence) what damages can be awarded. For example, damages in most medical malpractice claims are subject to a statutory "cap" which usually may not be exceeded.

Otherwise, the permissible components of damages are usually creations of the common law, and are usually set forth in the corresponding pattern jury instructions. Such instructions for example, will set forth the general "measure of damages" in breach-of-contract claims, fraud claims, or personal-injury claims, to name just a few. For example, a car-accident personal-injury plaintiff could attempt to recover "economic damages" for her out-of-pocket losses (physical damage to her car, destruction of clothing or personal property in the car, medical expenses, some types of past income loss or likely loss of future earnings, "non-economic damages" as compensation for pain and suffering, and the reduction in her enjoyment of life resulting from her injuries, and other damages for resulting physical disfigurement or disability. The jury will typically be given a verdict form which lists all such sought categories and then determines what amount, if any, it wants to award for each such category.

In some types of cases, the jury's award of damages may be quite predictable (or even ordained by the court). For instance, if there is no dispute that a breach of a sales contract by the seller of a product caused the buyer to incur a loss of $10,000 by having to go elsewhere to buy the same product, the jury may be expected (or even required) to award damages in that amount. In many cases, however, especially for such "non-economic damages" as those compensating a plaintiff for pain and suffering, the jurors' determination of an appropriate award may be guided only by their individual judgment and conscience.

Damages are referred to as "compensatory damages" because they are intended to compensate the plaintiff for economic or intangible losses or injuries. In some cases, "punitive" or "exemplary" damages may also be sought. Such damages are intended not to compensate the plaintiff but to punish a wrongdoing defendant for especially egregious conduct. For instance, if a drug manufacturer sued for producing a defective drug is found to have lied to the FDA about its possible dangers in order to get it approved for sale, punitive damages in addition to compensatory damages may well be sought. Many highly-publicized cases from other states sometimes result in juries awarding millions of dollars in punitive damages even though the amount of actual compensatory damages may be many times less. Such a result is impossible in state court (or in federal cases in which Colorado state law controls), because the Colorado Legislature has sharply limited punitive damages. In Colorado, such damages are available in the first place only if the defendant is proven to have committed fraud, malice or recklessly dangerous conduct, and their amount may generally not exceed the amount of compensatory damages awarded. (The trial judge does have discretion to triple that amount for particularly wrongful conduct).

If monetary damages are awarded, the court will usually add interest to the amount, from the date that the injury occurred, the contract was breached or when other wrongful conduct took place. Unless the parties have otherwise agreed to an interest amount (such as in a contract), the amount of interest will be set at a statutory default rate of 8 percent, 9 percent for personal-injury claims. Such interest ordinarily continues until the full amount is paid.

The award of damages is reduced to a judgement payment of which may be enforced in several ways. The judgment may be recorded in the office of the clerk and recorder, at which time it becomes a lien against the property of the unsuccessful party. That party's income, including wages, may also be subject to garnishment to pay such judgment. There is a procedure set forth in the Colorado Rules of Civil Procedure whereby a judgment creditor may force his debtor to provide full financial information and documentation for use in locating possible assets to satisfy a judgment. In some instances, the debtor will turn out to be "judgment-proof," either because it owns no significant assets and has no significant income streams, or because it initiates bankruptcy proceedings which result in a "discharge" of the judgment.

The party who prevails at trial is generally entitled thereby to recover some of its costs incurred in going to trial. For example, if the prevailing party presented the testimony at trial of an expert witness who charged $5,000, he can ask the judge to order his unsuccessful opponent to pay that amount, or a reasonable portion thereof. Other such typically-encountered prevailing-party costs are transcript and other deposition costs, travel and photocopying costs, and trial-exhibit preparation costs. The request for such costs (called a "bill of costs") is submitted following the trial, and decided by the judge, who has considerable discretion both as to which categories of costs to award and the amounts thereof.

Such prevailing-party costs do not generally include recovery of even a successful party's attorneys' fees. Attorneys' fees are generally recoverable only in the following situations: the parties entered into a contract which provides for such recovery, there has been success under a statute (such as some federal civil-rights statutes) which provide for such recovery, or the losing party is determined by the court to have raised only "frivolous and groundless" claims or defenses (a standard that is only rarely found to have been established). Even where such recovery is available, the judge also has considerable discretion in determining what amount of such fees is "reasonable," which will require consideration of the hourly rate charged by the attorney and the amount of time spent in pretrial and trial work on the case.

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