concurring in part and dissenting in part.
Today, this court reverses a jury award of punitive damages, because the trial judge in his instructions to the jury correctly stated how Oregon law requires an award of punitive damages, if made, to be distributed.11 agree with the majority that the trial judge should not have given the instruction. I believe, however, that the error was harmless when the instructions are considered as a whole in the context of the circumstances of this case. I would, therefore, reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.
The standard that this court ought to apply in evaluating an alleged error in a jury instruction in a civil case should be the same standard that we employ in evaluating an evidentiary error. That standard is (1) whether error was committed and, if so, (2) whether that error requires reversal. The *215decision whether evidentiary error requires reversal is made without presuming that the error is prejudicial.2 Similarly, this court should not presume that an error in an instruction was prejudicial to the party against whom it was committed. Prior expressions by this court to that effect, see, e.g., State ex rel Redden v. Discount Fabrics, 289 Or 375, 388, 615 P2d 1034 (1980), cited with approval in the majority opinion, should be disapproved.
ORS 19.125(2) establishes that not every error is “reversible” or “prejudicial” error. See also State v. Moore, 124 Or 61, 66, 262 P 859 (1928) (ORS 19.125(2), formerly Oregon Laws Section 556, prohibits this court from disposing of cases on mere technical errors). In order to be a basis for reversal of the judgment of the trial court in a civil case, then, the error in instruction must substantially affect the rights of the party against whom it was committed.3
*216In the present case, the trial court erred when it instructed the jury on how punitive damages, if awarded, are to be distributed. The proper inquiry is whether that error requires reversal. In deciding that question, we should consider the instruction in context. The judge told the jury that plaintiff must prove punitive damages by clear and convincing evidence. He then charged the jury:
“Punitive damages may be awarded or may be assessed in addition to compensatory damages, to punish the wrongdoer and to discourage the defendant and others from engaging in wanton misconduct. In considering punitive damages, you must first determine whether the defendant was guilty of wanton misconduct that caused damage to the plaintiffs. Wanton misconduct is conduct amounting to a particularly aggravated, deliberate disregard of the rights of others. If you decide this issue against the defendant, you may award punitive damages, although you are not required to do so, because punitive damages are discretionary. In the exercise of that discretion, you may consider the importance to society in deterring similar misconduct in the future.” (Emphasis added.)
That instruction is consistent with numerous statements by this court that the purpose of punitive damages is to punish a defendant and deter others who are similarly situated. See, e.g., Andor v. United Air Lines, Inc., 303 Or 505, 517, 739 P2d 18, 35 (1987); Noe v. Kaiser Found. Hosp., 248 Or 420, 425, 435 P2d 306, 308 (1967); Martin v. Cambas, 134 Or 257, 261, 293 P 601, 603 (1930).
The trial judge also instructed the jury:
“If you decide to award punitive damages, you may properly consider the following items in fixing the amount: The character of the defendant’s conduct; the defendant’s motive; the sum of money that would be required to discourage the defendant and others from engaging in such conduct in the future; and the income and assets of the defendant. The amount of punitive damages may not exceed the sum of $250,000.”
That instruction is likewise in harmony with the guidelines *217that this court has established for determining the appropriate size of a punitive damages award in a non-products liability case.4 State ex rel Young v. Crookham, 290 Or 61, 72, 618 P2d 1268 (1980).
Finally, the court added this language in its charge to the jury:
“If punitive damages are awarded by you, Oregon law requires that they be distributed as follows: First, the attorney for the prevailing party shall be paid the amount agreed upon between the attorney and the prevailing party; secondly, one-half of the remainder shall be paid to the prevailing party; third, the other half of the remainder shall be paid to the criminal injury compensation account to be used for purposes set forth in the law.”
It is that passage that is the basis for the majority’s conclusion that a retrial in this case is necessary on the availability and amount of punitive damages. Although the majority recognizes that “the effect of the instruction is somewhat speculative” and that “there could be * * * benign uses the jury might make of the information provided in the instruction,” 310 Or at 212, it nevertheless concludes that the instruction harmed the defendant by “[offering a jury an additional, inappropriate basis for awarding punitive damages * * 310 Or at 212. According to the majority, “the potential effect of the instruction was to ‘[permit] a jury to consider as a part of its deliberations on punitive damages that a plaintiff should receive a certain amount of money and, in order to ensure that he does, to add additional amounts to pay for attorney fees and contributions to the Criminal Injuries Compensation Account.’ ” 310 Or at 211. The instruction, the majority states, “encouraged the jury to award punitive damages for a purpose, viz., enhancement of the Criminal Injuries Compensation Account, that is not a reason for awarding punitive damages under Oregon law.” 310 Or at 211-12.
I disagree. The minds of jurors are not like empty tablets upon which the judges and lawyers record all of the *218data that the jury may use in deciding the case. The jury is permitted to use its store of accumulated experience and knowledge in deciding issues of fact. Wright and Graham, 21 Federal Practice and Procedure 460, § 5102. As Justice Metcalf wrote in Commonwealth v. Peckham, 68 Mass (2 Gray) 514, 515 (1854): “Jurors are not to be presumed ignorant of what everybody else knows. And they are allowed to act upon matters within their general knowledge, without any testimony on those matters.” See Rostad v. Portland Railway, Light & Power Co., 101 Or 569, 581, 201 P2d 184 (1921) (“[t]riers of fact cannot, in the nature of things, be divested of general knowledge of practical affairs.”); 9 Wigmore on Evidence, § 2569 (Chadbourn rev 1970). The jurors in this case, like other people, know that litigants incur attorney fees. It seems reasonable to assume that they were aware that plaintiff must compensate her counsel for representing her in this action and may well have taken that knowledge into consideration in determining the appropriate amount of punitive damages, with or without the challenged instruction.5
Recognizing that the jury is under oath to follow the law given them by the trial judge, this court has stated on several occasions that it assumes that the jury followed the instructions. See Chopp v. Miller, 264 Or 138, 144, 504 P2d 106 (1972); Despain v. Bohlke, 259 Or 320, 328, 486 P2d 545 (1971); Sedillo v. City of Portland, 234 Or 28, 33-34, 380 P2d 115 (1963). See also OEC 311(l)(j) and (x).6 We should assume, therefore, that the jury’s award of punitive damages to plaintiff was properly imposed to punish defendant and deter others who are similarly situated. Absent a reason to assume otherwise, we should not assume, as the majority does, that the jury disregarded the trial judge’s instructions as to when it *219could award punitive damages and instead awarded them on an inappropriate basis. Moreover, we should assume that the jury did apply the criteria given it by the trial judge in fixing the amount of punitive damages awarded plaintiff.
Instructions are to be considered in their entirety, not piecemeal, and it is immaterial that one or more of them considered separately may be subject to criticism, if from the instructions as a whole the jury was correctly charged as to the law in its application to the facts. See Klebaum v. Mitchell, 246 Or 196, 198, 424 P2d 219 (1967); Parmentier v. Ranson, 179 Or 17, 24, 169 P2d 823 (1946); Hornby v. Wiper, 155 Or 203, 211, 63 P2d 204 (1936). See also Anderson v. White, 264 Or 607, 611, 506 P2d 690 (1973). The instruction concerning the distribution of an award of punitive damages was a correct statement of law. See ORS 18.540. “In 1987, the Oregon Legislature recognized the nature of punitive damages as punishment of wrongdoers for the public good and decided that the public should share in the bounty.” Comment, Constitutional Challenges to Punitive Damages in Oregon: Let the Punishment Fit (Not Exceed) the Crime, 26 Willamette L Rev 749, 755 (1990), citing ORS 18.540. See Graham, 1987 Oregon Tort Reform Legislation: True Reform or Mere Restatement?, 24 Willamette L Rev 283, 298 (1988):
“ORS 18.540 is most significant; it ‘distributes’ the award of punitive damages. This section allows the attorney for the plaintiff awarded punitive damages to retain the ‘amount agreed upon’ pursuant to the contract of the attorney and client. [ORS 18.540(1)] The ‘prevailing party’ receives one-half of the remainder, as does the Criminal Injuries Compensation Account, unless the party awarded punitive damages is a ‘public entity.’ [ORS 18.540(2) and (3).]”
This court has stated on more than one occasion that an unnecessary instruction that is a correct statement of the law is not the basis for reversal unless it did mislead, or may have misled, the jury to the prejudice of the appellant. See, e.g., State v. Cortman, 251 Or 566, 573, 446 P2d 681 (1968); State v. Townsend, 237 Or 527, 530, 392 P2d 459 (1964). See also State v. Morris, 248 Or 480, 483, 435 P2d 1018 (1967) (surplusage language which does not mislead the jury in view of other instructions is not reversible error); Waterway Terminals Company v. P.S. Lord Mechanical Contractors, 256 Or 361, 370, 474 P2d 309 (1970) (“* * * cases should not be *220reversed upon instructions, despite technical imperfections, unless the appellate court can fairly say that the instruction probably created an erroneous impression of the law in the minds of the jurors which affected the outcome of the case”). The challenged instruction did not create an erroneous impression of the law.in the minds of the jurors. It was a correct statement of the law. In my judgment, the trial record does not reflect that the instruction affected the outcome of the case.
It is important to note that neither plaintiffs attorney nor defendant’s attorney mentioned in argument to the jury how punitive damages would be distributed, if awarded. The only reference to how punitive damages would be distributed, if awarded, was in the challenged instruction. The absence of argument minimizes the possibility that the jury misused or unduly focused on that one passage.
In sum, the instruction concerning to whom the distribution of an award of punitive damages will be made is unnecessary and should not have been given. It cannot be said from the record in this case, however, that the instruction substantially affected the rights of the defendant. In the light of the instructions on punitive damages, considered as a whole, the trial court’s giving the instruction was harmless error and does not warrant reversal of the verdict. The parties to a lawsuit are not entitled to a perfect trial. They are entitled to a fair trial. Nothing in the trial record demonstrated that the verdict in this case was the result of prejudice or passion. No good purpose would be served by sending it back for a new trial. I would put an end to this costly litigation by reversing the decision of the Court of Appeals and affirming the verdict of the jury and the judgment of the trial court. That conclusion is consistent with Article VII (Amend), section 3, of the Oregon Constitution which provides, in essence, that no judgment should be reversed for technical error when substantial justice had been done by a jury verdict and judgment.7
I concur in the majority opinion with respect to attorney fees.
ORS 18.540 provides:
“The punitive damage portion of an award shall be distributed as follows:
“(1) The attorney for the prevailing party shall be paid the amount agreed upon between the attorney and the prevailing party.
“(2) One-half of the remainder shall be paid to the prevailing party.
“(3) One-half of the remainder shall be paid to the Criminal Injuries Compensation Account to be used for the purposes set forth in ORS chapter 147. However, if the prevailing party is a public entity, the amount otherwise payable to the Criminal Injuries Compensation Account shall be paid to the general fund of the public entity.”
With the adoption of the Oregon Evidence Code, “[e]videntiary error is not presumed to be prejudicial. OEC 103[,]” Powers v. Officer Cheeley, 307 Or 585, 597, 771 P2d 622 (1989); State v. Carr, 302 Or 20, 27, 725 P2d 1287 (1986); State v. Miller, 300 Or 203, 220, 709 P2d 225 (1985), or harmless, Van Gordon v. PGE Co., 295 Or 811, 813, 670 P2d 1026 (1983); Powers v. Officer Cheeley, supra, 307 Or at 597 n 13. See also Kirkpatrick, Oregon Evidence 16-17 (2d ed 1989).
ORS 19.125(2) provides:
“No judgment shall be reversed or modified except for error substantially affecting the rights of a party.”
Compare ORS 19.125(2) with OEC 103(1), codified in ORS 40.025(1). OEC 103(1), which deals with evidentiary error occurring in the trial of a case, reads:
“Evidentiary error is not presumed to be prejudicial. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” (Emphasis added.)
Before an error can be the basis for appellate reversal or modification of a judgment under ORS 19.125(2), it must substantially affect the rights of the party against whom it was cpmmitted. On the other hand, OEC 103(1) provides that evidentiary errors at trial are not grounds for setting aside the verdict or reversing the judgment on appeal “unless a substantial right of the party is affected.”
Article VII (Amend), section 3, of the Oregon Constitution provides in pertinent part:
“* * * If the Supreme Court shall be of the opinion, after careful consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.”
Although limited generally to trial courts by ORCP 1A, ORCP 12B provides in *216pertinent part:
“The court shall, in every stage of an action, disregard any error or defect in the * * * proceedings which does not affect the substantial rights of the adverse party.” (Emphasis added.)
Under ORS 30.925(1), a plaintiff in a products liability action may recover punitive damages when he or she proves the defendant acted with “wanton disregard for the health, safety and welfare of others.” ORS 30.925(3) sets forth criteria to be used in determining the amount of punitive damages to be awarded to a prevailing plaintiff in a products liability action.
Although in theory jurors are not to award fees for counsel as part of plaintiffs’ compensation, several studies suggest jurors apparently often discuss fees in their deliberations and occasionally adjust their damage awards with this factor in mind. Greene, On Juries and Damage Awards: The Process of Decisionmaking, 52 Law and Contemporary Problems 224,241-42 (1989).
OEC 311 provides in pertinent part:
“(1) The following are presumptions:
“(j) Official duty as been regularly performed.
* * * *
“(x) The law has been obeyed.”
See note 3, supra.