Taking an approach recommended in the New Jersey State Bar Association’s (NJSBA’s) amicus curiae brief, the Supreme Court held that the use of remittitur and additur should be based on the mutual consent of the parties “to give the competing parties the greatest incentive to reach agreement.” In Orientale v. Jennings, decided last week, the Court held that the plaintiff is entitled to a new trial on damages because the trial court declared that the damages award was so grossly inadequate that it shocked the judicial conscience and because Orientale did not consent to the court’s additur. The NJSBA brief was written by trustees Craig Hubert and William H. Mergner Jr. and members Thomas J. Manzo and Brandon C. Simmons. Manzo argued the matter on behalf of the NJSBA.
“Going forward, in those rare instances when a trial judge determines that a damages award is either so grossly excessive or grossly inadequate that the grant of a new damages trial is justified, the judge has the option of setting a remittitur or an additur at an amount that a reasonable jury would award given the evidence in the case,” said the Supreme Court. “Setting the figure at an amount that a reasonable jury would award—an amount that favors neither side—is intended to give the competing parties the greatest incentive to reach agreement. If both parties accept the remittitur or additur, then the case is settled; if not, a new trial on damages must proceed before a jury.”
