Your client’s constitutional rights have been violated but your client has not suffered any injury other than the deprivation of the constitutional right itself. The case appears to be a loser. Is it really worth pursuing if you cannot prove an actual injury? This scenario has certainly presented itself to many legal practitioners. Even though it looks like you may be out of luck in getting damages for your client, there might be another way.

Presumed damages can be awarded even in the absence of proof of an actual injury. Unless your practice involves handling defamation cases, you probably have not had many chances to seek presumed damages for your client. Compensatory, nominal and punitive damages make up the usual damage pool that attorneys and plaintiffs seek. Sometimes, the type of harm suffered cannot be easily defined and normal categories of damages cannot serve to compensate your client. In these scenarios, an award of presumed damages may be appropriate. Presumed damages require no proof of an actual injury to be awarded. They are presumed as a matter of law to result naturally and necessarily from a tortious act. While traditionally sought in defamation per se cases, where actual harm to the individual is assumed, presumed damages have been sought and recovered when certain constitutional violations have occurred. Courts are reluctant to award presumed damages in non-defamation cases, some courts going as far as rejecting the doctrine of presumed damages in most constitutional torts. Despite the smaller nature of presumed damages awards and the reluctance of some courts to permit the award of any presumed damages, under the right circumstances, presumed damages can act as a way to compensate a plaintiff who otherwise might have received no compensation at all.

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