Civil Pro II Outline
Professor Nagel
Fall 2010
Damages
2 types of damages:
Substitutionary- compensation for injuries
Compensatory- actual damages paid for loss, injury, or harm
Liquidated- damages agreed upon in case of a breach
i. Must be reasonable
Punitive- damages to deter the def from engaging in similar conduct
i. Willful and malicious intent required
ii. If excessive, substantive req.’s to prove violation of due process
1. degree of reprehensibility
2. disparity b/t actual harm and punitive award
3. diff. b/t punitive award here compared to other cases
Specific remedies- equity; order to do or not do
Attorney fees
Must be motioned for, unless to be proven at trial as damages
file in 14 days after judgment entered
Specify the judgment and statute/rule that entitled the award of lawyer fees
State amount sought
Disclose any agreement terms about fees if asked or applicable
Attorney fees must be reasonable
They must keep a precise log of all activity
American Rule- parties pay their own lawyer fees
Pros- promotes law reform suits
Cons- Small claims don’t make it into court
English Rule- the loser pays
Pros- small claims make it into court
Cons- what if there’s a settlement; discourages high cost law reform suits
Fee Shifting
3 ways to do so
statute- courts can shift fees to def in statutes (like civil rights cases)
contract- parties agree through contract about who to cover fee
common law- fraud, intentional or reckless torts
Common Fund Doctrine- fund created from which lawyer’s fee can be deducted
fund is created by
judgment, or
adversarial settlement
Rule- a class can accept settlement agreement that waives claim of lawyers fees. In order to avoid this, attorney should have clients sign a form that says that they must reject and offer that refuses to pay attorney fees.
Injunctions are about equity; damages inadequate
· relief is discretionary
· no jury trial in equity cases
Ways to get injunction
no adequate remedy at law
irreparable harm
likelihood of success
Rule 65 Temporary Restraining Orders
· limit to 14 days w/ ONE 14 day extension
· can be issued ex parte (w/o notice or chance to be heard)
· pl do have to show immediate and irreparable harm will likely occur
Preliminary injunction
· adverse party must receive notice
· last up to one year
· these are only issue in when:
i. there’s irreparable harm- can’t be fixed w/ money and things cant be put back the way they were
ii. this harm must be likely to occur
Injunction bond- for PIs and TROs
or more than on party!
Costs doesn’t include attorney fees
Rule 7 Pleadings and Motions
pleadings are formal written statement filed in court stating your claims or issues
Only these pleadings are allowed:
a complaint;
2. an answer to a complaint;
3. an answer to a counterclaim designated as a counterclaim;
4. an answer to a crossclaim;
5. a third-party complaint;
6. an answer to a third-party complaint; and
7. if the court orders one, a reply to an answer.
Motions
· Must be in writing, unless made during trial.
· State the grounds for seeking the order
· State relief sought
Rule 8 Rules of Pleadings
Claims of relief must include:
Short and plain statement of the grounds for courts jx (unless court already has jx)
Short and plain statement showing pleader entitled to relief
A demand for that relief
Responses to claims must include:
Short and plain statement of defenses to each claim
Admit or deny the allegations asserted
May deny all allegations or deny and admit in part
Failure to admit or deny is taken as admission
