Anderson
Civpro
Spring 2011
A. Substitutionary Remedies (monetary)
• Compensatory—put client back to where they were
• Punitive—Purpose is to PUNISH the D for “bad” conduct and to defer the D and others in engaging in such conduct
• Hard to get, usually have to prove intent and breach of duty/amts. are usu. low but have increased over the years
• As amts. get higher, cases go to SC for Due Process (14th Amendment forbids “depriving any person of life, liberty, or property w/o due process of law)—SC can overturn awards that they feel are excessive
• Court has insisted that punitive awards be proportional to the harm inflicted, focusing on
• the degree of reprehensibility of the D’s misconduct
• the disparity b/w the actual or potential harm suffered by the P and the punitive damages award
• the difference b/w the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases
B. Analyzing the above Guideposts for Punitive Damages (State Farm v. Campbell)
• Degree of Reprehensibility
• physical vs. economic harm/indifference vs. reckless/repeated vs. isolated
• Disparity b/w punitive and compensatory damages
• Single digit multiplier
• Court established a presumption that if ratio is more than 9:1, the award probably violates Due Process
• Disparity b/w civil penalties in comparable cases and punitive damages sought
• In State Farm, most relevant civil sanction was $10,000CONSIDERABLY less than the award sought
C. Specific Remedies
• Injunctions
• Declaratory Judgments
D. Injunctions
• RULE: The determination whether to issue an injunction involves a balancing of the interests of the parties who might be affected by the Court’s decision—the hardship on P if relief is denied as opposed to the hardship to D if it is granted. (Sigma v. Harris)
• The main prerequisite to obtaining injunctive relief (an equitable remedy) is that there is no suitable remedy at law
• Not the case in Sigma v. Harris, but exceptions can be made if in practice, the remedy at law is not adequate
E. Declaratory Relief
• A remedy that simply asks the court to declare what the parties’ rights and obligations are, but does not actually order them to do anything
• May be chosen even though other avenues are open to the parties
• Two problems:
• Fine line b/w hypothetical case and a concrete factual controversy
• Jurisdictional problems
F. Financing Litigation/Attorney’s Fees
• American Rule (Each client pays his own lawyer)
• Could be per hour
• Flat rate
• Legal insurance
• Contingent (percentage of recovery)
• English rule (Loser pays winner’s lawyer)
• Contract—parties can agree when entering into a contract that the losing sign will pay all legal expenses
• Common law—common fund doctrine (if litigation results in creation of a fund that could benefit others beside P, lawyer gets paid out of the fund; important in class actions)
• Fee-shifting statute—in certain kinds of cases, court can award prevailing party reasonable attorney fees
• Society
that may occur to the P is sufficiently serious, it is only necessary that there be a fair chance of success on the merits.
• Temporary Restraining Orders (TROs)—faster than preliminary inunctions, don’t need notice; 10 day limit (and then one 10 day extension)
• Provisional Remedies and Due Process: Prejudgment seizure of property
1. RULE: To be consistent w/ Due Process, a hearing is required b/f the
seizure of property to prevent unfair and mistaken deprivations of
property (Fuentes v. Shevlin p. 322)
2.
• Promotes fairness
• Does not discourage ownership of property
3.EXTRAORDINARY CASES (where prior notice can be dispensed with and
still comport with due process):
• The seizure has been directly necessary to secure an important governmental or general public interest
• e.g. Domestic violence: protects public interest b/c by giving abuser notice, he may act violently, and other women will be discouraged from filing such orders
• There has been a special need for very prompt action
• Domestic violence (obvious)
• The State has kept strict control over its monopoly of legitimate force
• e.g. IRS seizures
