Judicial Remedies

Question 1

Two types of judicial remedies

Answer 1

Common Law Remedies
Equitable Remedies

Question 2

Common Law Remedies (Legal Remedies)

Answer 2

primarily focused on monetary damages and the recovery of property – moving money and property from one party to another
- Compensatory, Nominal, Punitive, Liquidated

Question 3

Equitable Remedies

Answer 3

Where common law remedies (damages) are inadequate, courts might grant Equitable Relief – which typically consists of orders to parties to take or not take certain actions

Question 4

Replevin (Common Law Property Remedy)

Answer 4

an action to recover property that has been wrongfully taken or is wrongfully possessed

Question 5

Ejectment (Common Law Property Remedy)

Answer 5

process by which petitioners ask courts to remove someone from property
(Ejectment and Eviction are essentially the same, with the essential difference being evictions are for leased premises and ejectments do not involve leases)

Question 6

Compensatory Damages

Answer 6

these go to plaintiffs to compensate them for pecuniary losses resulting from the defendant’s conduct

Question 7

Examples of when compensatory damages are applied

Answer 7

• Loss of time or money (wages, hospital bills, etc)
• Bodily pain and suffering
• Permanent disability or disfigurement
• Mental anguish (although this is probably less common than people think)
• Future losses (but not speculative losses)

Question 8

Duty to mitigate

Answer 8

Plaintiffs who are injured must take any reasonable means to avoid or minimize damages

Question 9

Benefit rule

Answer 9

If the defendants actions benefit the plaintiff in some way, the damages recovered by the plaintiff will be reduced proportionally
** benefit must be clear and certain – benefits that are hypothetical or ambiguous do not qualify**

Question 10

Liquidated Damages

Answer 10

contracts will often simply specify an amount of damages due if the contract is broken

Question 11

When are liquidated damage clauses enforceable?

Answer 11

so long as they represent a reasonable estimate of actual damages

Question 12

When is a Liquidated Damage Clause valid?

Answer 12

• Damages in the case of breach are uncertain or difficult to compute
• The parties have agreed in advance to liquidated the damages
• The amount agreed upon is reasonable and not disproportionate to the probable loss

Question 13

Nominal damages

Answer 13

damages that are small in value and awarded primarily for symbolic reasons
simply a recognition that the plaintiff has established their rights have been violated
not to be confused with small compensatory awards

Question 14

When are nominal damages awarded?

Answer 14

cases where the defendant breached some duty to the plaintiff, but either didn’t cause meaningful damage or the plaintiff could not prove damages

Question 15

Punitive Damages

Answer 15

• damages inflicted simply to punish defendants
• NOT substitutes for criminal punishment or compensatory damages
• awarded primarily to deter defendants

Question 16

What are punitive damages reserved for?

Answer 16

Extreme, intentional malicious conduct
(Intentional Torts or Statutory Wrongs)

Question 17

Injunctions

Answer 17

orders to parties to do an act or refrain from doing an act

Question 18

Two types of injunctions

Answer 18

Mandatory
Prohibitory

Question 19

Mandatory Injunction

Answer 19

compel a party to take an action

Question 20

Prohibitory Injunctions

Answer 20

prohibit a party from taking a party from taking an action

Question 21

Three classes of injunctions

Answer 21

Permanent
Preliminary
Temporary Restraining Orders

Question 22

Permanent Injunctions

Answer 22

indefinite (they can be removed or altered upon new evidence or circumstances)
Come at the end of a full hearing and dispute

Question 23

Preliminary / Interlocutory Injunction

Answer 23

an emergency measure while a lawsuit is ongoing
exist to preserve the status quo until rights can be fully established

Question 24

TROs (Restraining)

Answer 24

• Issued ex parte – defendant is not notified and doesn’t directly contest
• ## Plaintiff must show that (1) irreparable harm would result if TRO not issued and (2) there is no time for a hearing

Question 25

Specific Performance

Answer 25

contract remedy in which the court orders a party to fulfill their obligations under a valid contract, where monetary damages would be inadequate

Question 26

When does Specific Performance apply?

Answer 26

a plaintiff must have already substantially performed their end of the contract, or at least be ready to perform on demand

Question 27

Will courts apply specific performance for personal service?

Answer 27

No, they will not order one person to do work for another, as this amounts to involuntary servitude.

Question 28

Clean Hands Doctrine

Answer 28

• A plaintiff who seeks an equitable remedy cannot have acted unethically
• Even if the defendants conduct was also unethical, and maybe even worse! Because equity offered special privileges, you cannot ask for its help unless you have been morally upright.

Question 29

Hardship (Equitable Defense)

Answer 29

a defense to specific performance where one party alleges that the contract is so one-sided that they’re being taken advantage of – there is a gross inadequacy of consideration

Question 30

Laches (Equitable Defense)

Answer 30

a defense similar to the statute of limitations in which the defendant argues that the plaintiff has waited so long to bring their claim to court that it presents an unfair challenge to the defendant

Question 31

Restitution

Answer 31

the return of property from the defendant to the plaintiff

Question 32

What is the aim of restitution?

Answer 32

compensating the plaintiff and also preventing the Defendant from receiving unjust enrichment

Question 33

Unjust Enrichment

Answer 33

when a defendant profits from some improper action, but simply returning property to the plaintiff is inadequate

Question 34

Declaratory Judgement

Answer 34

affirmative recognition by a court of the parties rights, obligations, duties, etc, or the constitutionality of a law when any of these are uncertain; might be paired with an injunction

Question 35

Contempt Power

Answer 35

Failure to comply with an injunction or other equitable relief can be punished using the contempt power of the court

Question 36

Examples of Contempt Power

Answer 36

• Fines
• Losing the right to litigate (go to law; be a party to a lawsuit)
• Jail time

Question 37

Attorney Fees

Answer 37

The default rule in the U.S. is that each party pays for their own attorney, win or lose

Question 38

Collecting

Answer 38

• Collecting on that judgment is often difficult, as many losing parties either cannot pay a judgment, or will take a variety of steps to try to avoid the judgment
• If the losing party doesn’t pony-up, winning plaintiffs have several options including
  
  • Garnishment (must be filed and approved with the court) against the debtors wages or bank account
  • Obtaining a lien against the debtors property