Where a jury’s damages award is unsupportable, a court may condition denial of a new trial on the prevailing party accepting a reduced amount — remittitur — or, in state systems that permit it, on the defendant accepting an increased amount — additur.

Remittitur is available in both federal and state practice. The court determines the maximum the evidence supports and offers the plaintiff that figure or a new trial. A plaintiff who accepts generally may not then appeal the reduction; a plaintiff who refuses takes the new trial.

Additur is unavailable in federal court, having been held to conflict with the right to jury trial, but is permitted in a number of states.

Standards. Formulations vary — the maximum recovery the evidence supports, the amount a reasonable jury could award, or reduction to the point where the award no longer shocks the conscience. The choice of formulation changes the number materially.

Non-economic damages are where remittitur most often operates, since economic damages are usually tied to evidence with a ceiling.

Appellate review of a remittitur order is for abuse of discretion, with appellate courts reluctant to substitute their own figure.

Strategic note for defendants. A remittitur motion should be paired with, not substituted for, arguments that liability itself fails, and should propose a specific figure supported by an itemized analysis of the evidence.