Process of Litigation:
· Speed v. Quality
· Fairness v. Justice (Make sure Judges are fair to both sides, but also come to the Truth)
· Is a lawsuit a quest for the truth, or a means of settling a dispute?
Incentives to Litigate:
· Remediesà what the courts can do to or for the litigants
– 2 Types
§ Specific à restore directly and specifically that which the D had taken from P
§ Substitutionary à seek to provide a reasonable substitute
– Remedies are an element of every claim – must be pleaded and proven
– Where to sue depends on the type of Remedy sought
§ Each jurisdiction has different rules
§ Certain Remedies can only be given by Judges or Juries
– Remedies /Damages add to a determination of Whether to Litigate
§ Need to determine if its worth suing – too expensive to litigate
· Access to Justice à whether barriers to litigation are too high or too low
– Suits often end b/c P runs out of money
Stats to Litigation
· 98% of civil litigation is done in state courts (we cover the 2% in federal courts)
· Divided into 2 large (Civil & Criminal) and 2 small categories (Juvenile & Family)
· Civil litigation correlates with ppl and economic activity.
– More ppl & more economic activity =’s more litigation
– Hovered around 1 suit per 20 ppl
– Split btwn Contract and Tort filings
· Only 3% of cases make it to trial (70% jury, 30% judge)
– Torts, although fewer suits brought, nearly 2/3 of trials are tort cases
– K cases usually b4 a Judge — D’s win 51% of time — avg recovery 37
– Tort cases 85% b4 a Jury — P’s win 62% of the time — avg recovery 31K
· Low trial rate does not = a low decision rate
· 1/3 of cases are decided pre-trial by a judge — dispositive
· 14% of total cases and 25% of K cases end pretrial
· Most civil cases end ambiguously — in abandonment or settlement
Court Systems
· Constitution is the supreme authority
– Art. III — creates the federal courts by creating the SC and then granting CG the power to create the lower courts and establish jurisdiction
– Gives federal judges life tenure
· Most State systems do NOT confer life tenure (usually term elected)
· SC has discretionary appellate jurisdiction over most cases — they get to choose what cases they hear
– Writ of Certiorari — when the SC hears your case
· State courts can decide federal issues, but must follow federal precedent and the C, b/c of the Supremacy clause
· Most cases arise out of the DPC of the 5th or 14th
Substitutionary Remedies
· most damages in the modern US legal system are substitutionary (and most of those are $$)
– Many times specific remedies are impossible
– Even where $$ damages are poor substitutes, they may be the only substitute
· Substitutionary Remedies are designed to “make the Plaintiff whole”
– But you can’t ever fully compensate the Plaintiff:
§ Lost time and $$ for Litigation
§ What makes someone whole is Hard to Estimate
§ Ripple effects – damages don’t compensate for all consequential damages
–
· Compensatory Damages
– “economic damages” – $$ the P has either lost or has had to pay
– “non-economic damages” – pain and suffering, emotional distress, loss of consortium, humiliation, harm to rep
§ These are much harder to calculate
§ Jury verdicts in such cases vary widely
§ Some States have capped or barred non-economic damages in certain circumstances
· Liquidated, Statutory, and Punitive Damages
– “liquidated damages” – where the parties agree beforehand on the amount which to compensate in case of breach
§ Must be difficult to calculate (b4hand); reasonable in light of the actual and expected damages
§ Too large = void as a penalty
– “statutory damages” – legislatures can adopt stts that set min’s, max’s, or ranges that act as LD
– “punitive damages” – aim entirely at punishment
§ Designed to punish D for wrongful behavior
§ Is the exception to the general rule that damages at meant to compensate the Plaintiff
§ In Crim Law, negligence is not enough to get punitive damages; req’s willfulness
§ Critics say punitive damages are out of control, wildly unpredictable and not in correlation w/the harm done or badness of behavior
§ Proponents suggest that these damages are rare (6% of cases reaching judgment) and th
s?
§ Yes, in order to judge this, they must weigh the burdens placed on both parties and look at the inadequacy of the legal remedy
· Sigma: threat of loss of trade secrets that took 40 yrs to develop
o Damage would be Irreparable
· Harris: lesser, can’t use the knowledge and can’t work for the competitor, but can still find comparable work
· The legal remedy is deemed inadequate
· Appeal modified the Injunction so that Harris may work for the competitor, but not in the capacity that he worked w/ Sigma
· Notes on Sigma:
– Diversity Jurisdiction: granted when litigants are residents of different states OR the amount fought about exceeds a certain minimum (75K, I think)
– Provisional relief: temporary injunctions that preserve the status quo while the lawsuit is under way (temporary restraining order)
– Why is this legal remedy Inadequate?
§ b/c Harris won’t be able to pay Sigma for the large sums that they stand to lose
§ b/c its too difficult to calc the amt of damages suffered from the loss of these trade secrets
· difficult b/c of too many other contributing factors
Declaratory Relief
· The process of asking the court for a declaration of your rights w/out any coercive relief such as damages or an injunction
· Most often sought in insurance or patent litigation, but are available to all types of civil litigation
· Often used when other remedies are not yet available
– Helps ppl to avoid lawsuits, or know what they can or cannot do
· Declaratory judgments are often used to test the Constitutionality of legislation, though the SC won’t issue these
· Problem w/ Declaratory relief is that an action does not fit comfortably inside the idea of the well pleaded complaint rule
