CIV PRO I OUTLINE, FALL 2007
REMEDIES
PRE-LITIGATION TIMELINE
Dispute arises.
Fail to resolve dispute on your own.
Consult an attorney.
Is it worth litigating?
Is court the best forum?
(Mediation à settlement, arbitration à third party).
After investigation, send demand letter.
File lawsuit.
GENERAL LITIGATION TIMELINE
Pleading—complaint & response.
Discovery.
(Resolution without trial).
Pre-trial Motions.
Trial.
Post-trial Motions.
Appeal.
WHETHER TO LITIGATE
Probability of success on merits.
Potential damages:
Recovery vs. cost.
Defense strategy.
Financing litigation.
Hourly
Flat fee
Contingent fee
Subsidized legal services.
American Rule: each party pays own expenses.
Exceptions:
o Fee-shifting statutes/common law.
o Cost-of-enforcement contract clauses.
o Common fund (class actions—whatever is recovered).
SUBSTITUTIONARY REMEDIES
Most remedies = substitutionary.
Money damages = most common.
o Economic: quantifiable
o Non-economic: pain and suffering, loss of reputation, etc.
Liquidated: prior agreement à calculation of compensatory damages.
o Typically in breach of contract cases.
o Courts may not enforce if unreasonably large.
Statutory: set minimum damages not tied to amount of loss suffered.
o eg, $500/violation of statute.
o Encourages public policy goals.
Punitive: aimed at punishing D.
o Subject to Due Process charge if unreasonably large.
State Farm v. Campbell:
§ Punitive damages must be to punish the acts that caused the specific harm to P.
SPECIFIC REMEDIES
Specific relief: historical emphasis on equity concerns.
Specific performance: usually to complete previously established action.
Ejectment (legal, not equitable): requires party’s removal from premises.
Replevin (lega
ey P makes claim to.
Preliminary Injunctions: restrains parties until legal conclusion.
Traditional rule–must demonstrate:
o Substantial likelihood of success on merits.
o Substantial threat of irreparable harm if not granted.
o Balance of harms weighs in party’s favor.
o Would not be oppose public policy concerns.
Inglis v. ITT Continental—alternatives to first two elements:
§ Serious questions/sharp imbalance of hardships, OR
§ Sufficient harm/fair chance of success.
Due Process concerns
Typically means notice and opportunity for hearing before any deprivation of life, liberty, or property.
Mathews v. Eldridge:
Three factors—has party received due process?
1) Private interest affected by the action?
Risk of error/probable value?
