Granted, I’m not a lawyer, and frankly I get thoroughly lost in a lot of these legal joustings, but I thought I’d prepped pretty well to hear the arguments this morning. Yet, 45 minutes in, I remember thinking, “Why are we spending all this time on Philip Morris’ proposed jury instruction, long after the Justices seemed to agree it was inadequate anyway, and even as they tinker away at it, trying to determine just the right language, the exact phraseology that would communicate, in a way ordinary jury members could understand, that the jury could consider, in its determination of reprehensibility, the potential harm Philip Morris’ conduct might cause to others, but THEY COULD NOT PUNISH PHILIP MORRIS FOR THAT HARM (ie, the award is to punish only the reprehensible conduct itself, not the harm it may have caused to others.)
Clear? If you were on a jury, how would you reconcile the difference?
Justice Breyer described the issue as a “kind of bog:”
[W]hat’s worrying me about this is I see as we try to determine what this instruction said, whether it was good enough, whether the instructions without it are good enough, that we’re going to be in a kind of bog of mixtures of constitutional law, unclear Oregon state law, not certain exactly what was meant by whom in the context of the trial, et cetera.]
Remember, the court was to consider:
1. Whether due process allows a state to impose punitive damages based on the actual and potential effects of the defendant’s wrongful conduct throughout the state?
2. Whether the ratio between compensatory and punitive damages comprises the conclusive and overriding guidepost as to the reasonableness of a punitive damages verdict?
Of all the deep, serious issues in this case, I never expected this relatively small and hypothetical aspect to occupy the bulk of the hour-and-ten-minute session.
And when, just outside the courtroom, I asked Williams attorney Robert Peck about it, he said he thought Frey had “shot himself in the foot on that one.”
And indeed, the huddle of supreme court reporters in the press room was in agreement, criticizing Frey severely for opening with the complaint that Philip Morris was denied its proposed jury instructions. One distinguished gentleman, seemingly the most experienced and legal-minded of the group, counted 5, maybe 6 Justices whom he felt would remand for reconsideration, asking the Oregon Supreme Court, “What exactly did you mean?” in regards to whether Philip Morris was punished for harm to other Oregonians or for conduct that had the potential for great harm.
One reporter said, “I was all hyped for this case, ready to write on all the big issues, but now–I don’t even know if I’ll file.”
“Look for it tomorrow on MSNBC,” another suggested.
The senior reporter referred to all the ins and outs of the case, all the rulings, the technical shadings, the intricate parsings, and said, “This is one of those cases that’s better handled by a blog.”
The transcript is here: