Understanding Remedies

CHAPTER 1: UNDERSTANDING REMEDIES

Basic Remedial Goals

To restore Plaintiff to the whole; to original position she was in before the wrong occurred.

Types of Remedies

Legal versus Equitable Remedies

Legal: usually substitutionary. Judgement order stating P is entitled to something, such as damages. If D doesn to provide something, there is no contempt proceeding. Instead, a sheriff will attempt to satisfy the judgment by seizing assets. A jury trial is typically available

Equitable: Often specific, court orders D to do or not do something, if D doesn’t comply, he is held in contempt of court. Normally no jury trial.

Specific versus Substitutional Remedies

Specific: returns the thing taken or order performance that was due

Substitutional: substitutes money for the specific relief

Damages

Recovery of monetary compensation for loss caused by the legal wrongdoing of another.

May be compensatory or punitive, general or specific, economic or non-economic.

Injunctions

In personam order, usually issued by a trial court, that directs a D to act (or refrain from acting) in a specific way. Enforceable by contempt. Must be obeyed until stayed, dissolved, or reserved (even if erroneously issued).

Restitution

Declaratory Relief

Informs parties what their rights are, but orders no relief

Punitive Damages

Nominal Damages

Presumed Damages

Rights and Remedies

Relationship between Rights and Remedies

Common Law Remedies

Statutory Remedies

Express Remedies

Implied Remedies

Public Policy

Reserved

CHAPTER 2: GENERAL PRINCIPLES CONCERNING COMPENSATORY DAMAGES

The Purpose of Compensatory Damages

D ordered to pay money to P. Based on harm/injury to P. Puts P in the position he would have been in had the injury not occurred.

4 requirements: (1) Actual causation {but for test}, (2) foreseeability {proximate causation at the time of the tortuous