THE MASTERFUL CIV PRO OUTLINE
Civil Litigation — dispute resolution
à not out to discover the “truth”, out to find an agreement between 2 parties
Evidentiary Standard: clear and convincing evidence
Arbitration: arbitrator makes decision, sometimes binding, sometimes not binding
Mediation: mediator does not make decision, not binding
Ex parte: talking to the judge without the other side present
Res Judicata: can’t sue twice, can’t do the exact same case over again
Stare decisis: sets the law of future cases, lets prior decisions stand as precedent
Law v. Equity: Common law courts give $ damages.
Cts of equity give injunctions (no jury)
A. Plenary Judicial Remedies
1. Damages- the traditional legal remedy to compensate for loss or injury
(a) Compensatory Damages- Actual damages, sufficient enough to indemnify the loss suffered by the injured party.
(i) quality of life has been diminished, pain & suffering, emotional distress
(ii.) Collateral Source Rule- Amount paid by source (i.e. insurance co.) should not be deducted from the total damages (why should D luck out bc I paid my premiums) Helfend.
(b) Punitive Damages – damages awarded to the P in addition to compensatory damages to punish the D.
(i) net worth is admissable
(ii) punitive damages must be proportional to actual damages (BMW)
(iii) problems with punitive
a. violates Constitution?
b. violates Due Process Clause?
c. violates cruel and unusual punishment?
d. Lack of “fair warning”?
(iv.) you do not have a right to punitive damages
2. Specific Relief- When a court orders a person to perform or refrain from performing a specific act. Also known as equitable relief.
(a) Injunctions- court orders commanding or preventing an action require:
(i) have to show that $ won’t fix it (no adequate remedy at law)
(ii) must be irreparable harm
(iii) at the court’s discretion (Weinberger–Navy bombing case)
Mandatory Injunction- go do something!
Prohibitory Injunction- stop do
hereby P gives security for/holds property until ct decides owner
2. Getting a PJR
Standard of proof: prob cause
(a) attach proposed unsigned writ, summons, or complaint to:
(i) application (accompanied by notice and claim form)
(ii) affidavit showing prob cause
(iii) form/order for hearing about PJR
(iv) summons delivered to D at least 4 days before hearing
(b) Ds rights
(i) object, show defenses
(ii) request that P post bond
(iii) post bond instead of having property attached
(iv) show property is exempt
(v) a right to appear and be heard
(vi) court should consider nature of property, methods of retention or storage, potential harm
3. Due Process in attachment under the 14th amendment (CT v Doehr)
(a) There must be a hearing in which both parties may be heard in order to attach a person’s assets.