I’m a little unclear about exemplary damages vs. recovery of attorney’s fees. Is one a subset of the other?

In other words, could exemplary damages due to actual malice be used to recover attorneys fees expended by a plaintiff due to tort?

Applicable law in Maryland if it matters. I understand MD uses the term exemplary in place of punitive for damages.

2 Answers 2


Exemplary (punitive) damages vs. recovery of attorney’s fees: Is one a subset of the other?

No. Neither one is a subset of the other. The legislation of each state lists which damages are recoverable in a civil action for defamation. In fact, making one type of damages a subset of the other would unjustifiably discriminate against pro se plaintiffs who, by definition, do not incur attorney fees and yet have been unlawfully harmed in their reputation by statements which are defamatory per se.

This Maryland statute for defamation entitles the plaintiff to actual as well as punitive damages, but it does not mention attorney fees. It is unclear to me whether Maryland legislation addresses attorney fees more generally in a separate statute.

By contrast, the Michigan statute MCL 600-2911(7) lists economic (actual) and attorney fees, whereas the matter of "Exemplary and punitive damages" is addressed separately in MCL 600.2911(2). Issues of actual malice are addressed in MCL 600.2911(3), (4), MCL 423.452, and possibly elsewhere.

The difference in legislative detail as enacted in each state does not imply whatsoever that the actual application of defamation law in Michigan is any better or more truthful than in Maryland, though. As a defamation plaintiff in two related cases in Michigan (both being petitioned in the SCOTUS, see here and here), I experienced the courts' fondness of suppressing Michigan statutes and its case law (coincidentally, one of my cases has strong resemblance to the Maryland case Mareck v. Johns Hopkins University, 60 Md.App. 217 (1984)).

  • 1
    Thanks again. As you note, some statutes in Maryland address punitive damages, the one you referenced seems to apply only narrowly against broadcasting stations making defamatory statements against candidates for office. But the broader concepts, such as requiring "actual malice" seem to come from case law. I've found a few generalizations identified in cases, such as that punitive damages are only available in torts. Jan 5, 2019 at 15:38
  • @Burt_Harris I agree. It actually took me some time to locate that Md statute for this question, whereas during the briefing for my cases I brought up various authorities from Md. case law. Generally speaking, proving actual malice in an action for defamation per se makes the difference between being awarded substantial damages rather than just the award of nominal damages (a negligible amount of $1). Actual malice also needs to be proved (even when the plaintiff incurred special damages) if the defamatory falsehood is [unfortunately] protected by qualified privilege. Jan 5, 2019 at 16:19

No. The two are quite separate, and may be provided for in different statutes or in different sections of the same statute, depending on the jurisdiction.

Exemplary damages, also called punitive damages, are intended to punish the offender (or to "make an example" of the offender). They are often awarded for wilful or particularly outrageous conduct. There is often wide discretion in whether to award them, and how much to award. They may have no clear relation to the amount or kind of damages done to the plaintiff.

The recovery of attorney’s fees, and sometimes other costs, is a significantly newer concept in tort law. The purpose is to be fair to a plaintiff who might have had significant expenses in establishing a valid tort claim. The further purpose is to avoid people with valid claims being deterred from proceeding on them because of such costs. It does not generally depend on any particularly outrageous conduct on the part of the defender.

However, in many states, the amount of fees awarded may be considerably less than the actual expenses incurred by the plaintiff. Particularly when the statute specifies "reasonable attorney’s fees", the court's notion of that is reasonable may be rather less than the market rate. On the other hand, some statutes in some states provide for "full costs" or "actual attorney’s fees" which will more fully compensate a winning plaintiff for all expenses involved.

All the above applies to all tors, not just defamation. In defamation cases, proof of actual malice is required in some US states for exemplary damages to be awarded. This concept was borrowed and significantly modified, in the famous case of New York Times vs Sullivan to require a Public Official (and later a public figure) to prove actual malice to win any recovery in a defamation case. The term is unfortunate, as the usual proof of actual malice does not establish any malice in the dictionary sense of the word.

In some cases there are also statutory damages, which are assessed without any proof of actual economic damage, either instead of or in addition to, actual damages (also known as compensatory damages). For example, US Copyright cases provide statutory damages if the copyright was registered before the infringement occurred, or within three months of publication, but not otherwise. The amount or range of statutory damages is specified in the law. Only some specific torts carry statutory damages.

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