Martin Hoke: “I think we have forgotten again what the basis is of punitive damages. Punitive damages comes from the doctrine of…”

“I think we have forgotten again what the basis is of punitive damages. Punitive damages comes from the doctrine of punishment which is really a quasi-criminal remedy. It is not strictly a civil remedy. That is the whole purpose of raising the standard of proof. As we all know, lawyers on this committee know that the standard of proof, when it comes to proving a crime, is one of 'beyond a reasonable doubt.' And when you are merely proving a civil case, it is the 'preponderance of the evidence.' Well, 'clear and convincing' is in between. We are not talking about compensation here. We are talking about punishment. If we are going to go to a standard of proof that is going to mete out punishment, then we should require that that standard of proof be higher than the normal standard of proof that you find in a civil case. While you can talk about States' rights or you can make other arguments until your heart is content, the fact is that what is really going on here is the need to have a standard of proof which meets the remedy. And the remedy is punitive, punishing--punishing the wrongdoer--if we are going to go to that point, after having compensated the victim for either his or her personal injuries or for property damages, to have a higher standard of proof.”