REMEDIES FINAL OUTLINE

INTRODUCTION
I. SCOPE OF LEGAL & EQUITABLE REMEDIES
A. Limitations on Remedies
1. “A right is only as good as the remedy that accompanies it.”
2. To receive a remedy, ∏ must establish:
a) Substantive entitlement to relief, and
b) A legal basis for the desired remedy
3. ∏ cannot get double recovery of same damages simply b/c there are 2 sources of remedies available
4. Rule: statutes differing from common law are strictly construed as long as the remedy is adequate
5. Rule: Statutes may limit availability of remedies by language used in the remedies provision of a law
B. Consequences of Remedy Characterizations
1. Two broad classifications of remedies: legal & equitable
a) Sub-Categories: injunctive relief, damages, declaratory, and restitution relief
2. Remedial category classification affects things like insurance coverage, right to jury trial, method of
judicial enforcement, etc.
a) Legal remedies = damages / restitution / jury trial
b) Equitable remedies = coercive orders / restitution / no jury trial

INJUNCTIONS & SPECIFIC PERFORMANCE

I. PREVENTATIVE INJUNCTION
A. General Information
1. Preventative Injunction (PI) Defined: a court order designed to avoid future harm to ∏ by controlling
∆’s actions.
2. Role of the Judge Sitting in Equity:
a) Find facts (at law, the jury finds the facts)
b) Discerns the equities (evaluates the 4 requirements for the equity, listed below)
c) Applies the substantive law (where there is a right at all!)
3. Four PI Elements required for ∏ to be Entitled to a Remedy:
a) Inadequacy of Remedy @ Law
b) Irreparable Harm
c) Balance of Hardships
d) Public Interest
4. Three Types of Preventative Injunctions:
a) Temporary Restraining Order (TRO): Prevents immediate, irreparable harm. There is usually no
time for notice or a hearing. TROs last 10 days max. The purpose of a TRO is to preserve the
status quo until you can get an injunction.
b) Preliminary Injunction: Prevents immediate, irreparable harm. Notice and a hearing is
held. Preliminary Injunctions lasts until superseded or dissolved.
c) Permanent Injunction: Can be either prohibitory (“do not do something”) or mandatory (“do
something”). They are usually issued after trial and they supersede preliminary injunctions.
B. Inadequacy of Remedy at Law
1. Inadequacy of Remedy @ Law: ∏ cannot be made whole with $ compensation
2. Multiplicity of Future Lawsuits: prevention of a multiplicity of future lawsuits for damages is
grounds for equitable relief
3. Types of Trespass Actions:
a) Continuing: trespasser arrives and stays—∏ must show ∆ will not follow a demand to vacate land
i. Easy to Remove Infringement: damages are an adequate remedy ($ for removal of trash)
ii. Hard to Remove Infringement: PI is an adequate remedy if difficult for ∏ to remove shit
 b) Repeating: trespasser arrives and leaves—∏ must show ∆ is likely to repeat the trespass in
knowing violation of ∏’s rights to receive an injunction
C. Irreparable Harm
1. Irreparable Harm: anticipated harm is not trivial / it is worthy of equitable intervention
2. $ damages are usually inadequate when: injuries to reputation, goodwill, or real estate interests
3. The harm must not be trivial—if the harm is slight the equitable remedy will not survive
D. Balance of Hardship
1. Balance of Hardship: judges weigh the relative hardships of the parties (∏’s benefits v. ∆’s burdens)
and consider any practicality problems in enforcing an order.
E. Public Interest
1. Public Interest: courts consider the impact of equitable relief on private rights & public interests
2. Courts are reluctant to issue permanent injunctions against businesses producing goods, employing
people, and paying taxes.
a) Alternatively, courts may force ∆ business to adopt procedures that minimize/eliminate harm

II. INTERLOCUTORY (NOT FINAL) INJUNCTIONS

A. General Information
1. Interlocutory Injunction (II) Defined: expedited short-term relief that a ct. may give before final
adjudication of a case on the merits
2. Two Forms of Interlocutory Relief:
a) Temporary Restraining Order (TRO): an unapealable, brief stop-gap measure for a truly urgent
situation that can be replaced with a permanent injunction
b) Preliminary Injunction (PI): an appealable injunction that lasts for the duration of the trial
B. Substantive Requirements
1. Four Traditional Injunction Factors:
a) Substantial likelihood of moving party’s success on the merits (most important)
b) Irreparable harm to moving party if the order is not granted
i. If not irreparable, injunction unavailable
ii. If compensatable with $, harm is not irreparable
iii. Sometimes loss of market share can be considered irreparable injury
iv. Irreparable Future Harm: there must be a clear showing that the future opportunity lost by the
∏ is truly unique opportunity and therefore warrants a TRO or Preliminary Injunction
c) Balance of hardships if the order is granted (benefits/burdens to both ∏ & ∆)
d) Public interest (difficult to determine!)
2. Alternative Sliding Scale Test:
a) First, meet certain thresholds:
i. Serious question of law
ii. Irreparable harm
b) Second, move to the sliding scale:
i. If probability of success on the merits is high, then the harm may be lower
ii. If the probability of success on the merits is low, then the harm must be high
c) Third, always consider the following:
i. Balance of hardships (benefits/burdens to both ∏ & ∆)
ii. Public interest
C. Procedural Requirements
1. Fed. Rule of Civ. Pro. 65: notice must be given, or an affidavit explaining the reasons for lack of
notice must be presented to the court, to issue a TRO ex parte —not appealable
a) There must be an attempt to notify the other party so they can have the opportunity to be heard
b) The TRO can last only 10 days w/ a 10 day extension (can last longer w/ party’s consent)
i. If a TRO lasts more than the 10 day period (or 20 days if extension is granted), it is considered
an illegally issued Preliminary Injunction.
c) A hearing must be given most of the time
 2. Fed. Rule of Civ. Pro 52(a): On a motion for PI, where “essential facts are in dispute, there must be a
hearing and appropriate findings of fact must be made” (but a TRO doesn’t have to have a hearing)
a) Rulings on PIs are appealable, unlike TROs.
b) PIs last until the trial concludes
D. Injunction Bonds & Appeals
1. Fed. Rule of Civ. Pro. 65(c): Courts can’t issue a TRO or PI w/o the applicant putting up a security
bond in an amount the court deems reasonable. This security bond is to be paid out to the opposing
party for costs and damages if the opposing party is found to have been wrongfully enjoined or
restrained.
2. Fed. Rule of Civ. Pro. 54(d): The prevailing party is entitled to recover its costs
3. Security Bond Limitation: The prevailing party is limited in their recovery to the bond amount. If the
future prevailing party thinks the bond amount is low, they must appeal for a higher bond amount!

III. SPECIFIC PERFORMANCE OF CONTRACTS

A. General Information
1. Elements to Determine if SP is an Appropriate Remedy:
a) Suitable subject matter
i. Includes land interests, unique items/interests, & unavailability of substitutes
ii. If there is economic interchangeability, then the land/item is not unique
b) Inadequacy of remedy at law
c) Fairness btw parties
i. Adequacy of consideration
ii. Fairness and certainty of terms (balance of hardships)
iii. Mutuality of remedy (if SP wouldn’t be granted to ∆ in the case of a breach, then SP
shouldn’t be granted to ∏)
d) Practicality of an Order
i. Supervision & enforceability
ii. Ability to perform
e) Public Interest
B. Entitlement of Specific Performance
1. Restrictive Covenants (negative injunctions, usually used in personal performance Ks) will be
enforced if:
a) Service / land involved is unique
b) Area covered is related to the service / land involved, and
c) The time period of the restriction is limited
C. Fashioning Relief
1. Courts not only weigh the factors above to determine whether they should grant SP, but to determine
how to fashion the form and scope of the decree.
2. Usually, fashioning relief involves determining whether the court will be burdened w/ supervision
3. Example: SP of breached K to sell TV station b/c station was "unique”
D. Contracts for the Sale of Goods
1. Under the CL, a good/land must be virtually “one-of-a-kind” to warrant SP. But, the UCC expanded
the CL under UCC 2-716, which states that SP may be ordered if the goods are unique, or in “other
proper circumstances.”
2. UCC 2-716: expands SP remedy when the goods K-ed for are “unique” / “virtually one of a kind” or
for output / requirement K’s when alternative sources or markets are unavailable (other proper
circumstances).
IV. EQUITABLE DEFENSES
A. General Information
1. When ∏ seeks an equitable remedy, cts may apply any of the following doctrines, depending of ∏ &
∆’s actions: latches, estoppel, unclean hands, or unconscionability.
B. Latches & Estoppel
1. Latches: bars a ∏ who has not acted promptly in bringing the action
a) Requires proof that delay (time b/f ∏ initiated litigation) to ∆ was both:
i. Unreasonable, and
1. Not measured by a set time, but by reasonable action in each factual circumstance
ii. Prejudicial
1. Evidentiary prejudice: Evidence is lost / stale / degraded—or witnesses are dead / have no
memory of the events
2. Expectations-Based prejudice: ∆ took actions or suffered consequences that it would not
have had the ∏ brought his claim in a timely manner
3. Sliding Scale: No excuse for delay = ∆ needs to show little prejudice. Excuse for delay = ∆
needs to show more prejudice.
b) ∆ has the burden of proof
2. Estoppel: bars a ∏’s suit when ∏, by his own statements/conduct, led ∆ to do something he would
not have done but for ∏’s statements/conduct—∏ will then not be able to deny his
statements/conduct to the detriment of the ∆.
a) Estoppel requires proof of:
i. Inconsistency
1. ∏ must have known the material facts & falsely represented/concealed them
2. ∏ intended (or acted) to induce ∆’s reliance
3. ∆ did not know the material facts
ii. Prejudice
1. ∆ relied on ∏’s representation/concealment to his detriment
C. ∏’s Unclean Hands & Unconscionability
1. Unclean Hands: when a party seeking relief behaved inequitably with respect to rights being asserted
a) Two Elements:
i. Serious misconduct
ii. That is related to the right asserted (not collateral, like ∆ is a crack whore or drug addict)
b) Employment K & Unclean Hands
i. Non-compete agreements are enforceable if there are no unreasonable hardships incurred
ii. Non-compete agreements unenforceable if employer made employee commit wrongdoings
2. Unconscionability: when a K is so oppressive / one-sided that the judge cannot enforce it
a) No formal elements—up to the discretion of the court
b) Unconscionability: when a judge is so shocked by the oppressive nature of a K that the courts
simply will not enforce it.
i. Substantive Unconscionability: The K’s terms are oppressive / one-sided
ii. Procedural Unconscionability: The K had unfair terms in legalese or small print, unequal
bargaining power, illiterate ∏’s, etc.
c) Unconscionability is a defense—it provides no relief except to excuse a party’s continued
performance under the oppressive K.
d) The defense arose in equity, but now is under UCC 2-302 as well
V. CONTEMPT
A. General Information
1. Contempt: the method by which courts enforce equitable orders
a) Contempt orders must be specific and unequivocal
b) ∆ must have the ability to obey the order
2. Defenses to contempt orders:
a) Impossibility: ∆ does not have the ability to obey the order
b) Substantial Compliance: ∆ took all reasonable steps to ensure compliance w/ the court order
3. Test Analysis Steps:
a) Is the contempt criminal or civil?
b) If criminal, is the contempt direct or indirect?
c) If civil, is the contempt coercive or compensatory?
d) Does ∆ have an applicable defense?
4. Contempt is not simply an interference w/ the process of justice, it must be an “obstruction” of the
process of justice.
5. Procedural requirements for contempt rise if the punishment is “serious” and/or the fact-finding or
injunction is “complex.”
a) Serious = $26 million contempt order
b) Not Serious = $10,000 contempt order for a union of 12,000 members
B. Criminal Contempt (punishes past acts)
1. Brought by: Federal or state prosecutor to vindicate the integrity of the court
2. Requirements & Rights
a) ∆ must willfully violate a court order
b) ∆ has an immediate right to appeal the criminal contempt order and cannot resort to self-help
c) ∆ has a duty to obey the criminal contempt order, even if it is erroneously issued
d) Criminal contempt punishments must be definite in $ amount or prison time
3. Two Types of Criminal Contempt:
a) Direct Criminal Contempt: a disrespectful act w/in the court’s presence, where the court has
direct knowledge of the facts that constitute contempt (Fed. cts. are more liberal when it comes to
“in the presence” of the court)
i. No notice is required, no hearing is required, no right to counsel…the judge holds a summary
proceeding and imposes the contempt order!
ii. Right to a jury trial when a “serious” penalty is imposed (high $ fine or > 6 mo. in prison)
b) Indirect Criminal Contempt: a disrespectful act outside the court’s presence that requires
testimony or the production of evidence to establish their existence.
i. ∆ afforded Constitutional and procedural protections (burden of proof, right to counsel, jury
trial, 5th Amend. protection, notice, right to put on a defense, etc)
C. Civil Contempt (encourages future compliance)
1. Brought by: a party, as a part of an underlying action, to compensate ∏ for ∆’s violation of a court
order (compensatory) or to compel present and future compliance (coercive).
2. Requirements & Rights
a) ∆ must prove compliance by a preponderance of the evidence
b) No right to a jury trial and no immediate right to appeal civil contempt orders
c) A contempt order will not stand independently from the underlying action (if the action fails or
fails on appeal, the contempt order and punishment fails as well)
3. Two Types of Civil Contempt:
a) Coercive Civil Contempt: compels ∆’s present & future compliance with a court order
i. ∆ has the “keys in his pocket”—∆ is able to free himself from contempt by complying
ii. Punishment includes prison time or fines until compliance
iii. If the civil fines are too high and more analogous to fixed & retrospective punishment, with a
punishment that is beyond justifiable to coerce ∆ into future compliance, then the civil
contempt order should be considered “criminal contempt,” giving the ∆ Constitutional rights
 & protections (i.e., a jury trial, right to appeal, etc.).
b) Compensatory Civil Contempt: compensates ∏ for ∆’s violation of a court order
i. ∏ must prove, by reasonable certainty, actual losses that arose from ∆’s disobedience of the
court order.
ii. ∏ may then recover the $ damages (atty fees, out of pocket expenses, loss of business profits)

DAMAGES
I. CONTRACT DAMAGES
A. General Information
1. General Damages: losses associated with any K claim, based upon ∆’s wrongful actions
2. Special Damages: losses suffered by a particular ∏ which need to be pled & proved w/ specificity—
the losses are caused by the ∆ or stem from the ∆’s actions
3. UCC refers to special damages as “consequential damages”
4. Breach of K Action
a) Purpose: to give the benefit of the bargain and put ∏ in as good as position as if K was performed
b) Rule: if full performance of a K would have caused a loss to ∏, that loss must be subtracted from
the overall recovery.
c) Three Types of Monetary Remedies for Breach of K:
i. Expectancy
1. Measured by expected profit—puts ∏ in same position he would have been in if K was
performed
2. Preferably b/c ∏ gets the “benefit of the bargain”
3. Ex: ∏ sells $10 watch to ∆ for $100. ∆ reneges  $90 ∏ recovery for expected profit loss
4. Construction K’s—2 ways to measure expectancy:
* Cost of Completion or Repair
- This is the favored approach, unless cost is disproportionately large
- Cts. give diminution in value to avoid economic waste
* Value Rule
- The less-favored approach b/c the amount is usually less than the alternative above
- Cts. give the difference in value btw what was promised and what was received
- Value calculation: FMV = what a reasonable & willing buyer, and a reasonable &
willing seller, would be willing to pay/sell, when negotiating at arm’s length.
ii. Reliance
1. Essential Reliance: damages cover expenses incurred preparing to perform the K or
actually performing the K (presumptively foreseeable).
2. Incidental Reliance: damages cover expenses incurred preparing to perform the K or
actually performing collateral transactions apart from the K (Must prove foreseeability).
iii. Restitution (though not technically considered a type of “damages”)
1. Gets rid of unjust enrichment by creating a quasi-K
2. Damages calculated as FMV of the benefit ∆ received
3. Restitution damages may be used if (1) ∏ can’t prove expectancy damages, or (2) the K is
a loosing K for the ∏, so seeking reliance damages would be more profitable
B. Sale of Goods Contracts
1. Buyer’s Remedies When Seller Fails to Deliver or Repudiates
a) Overview:
i. Buyer may cancel K, recover what he already paid (2-711), choose either [Cover (UCC 2-712)
OR Damages for Non-Delivery (UCC 2-713)], plus Incident & consequential Damages, minus
Expenses Saved.
b) Cover—UCC 2-712
i. After seller’s breach, buyer may cover by good faith, without delay, the purchase of substitute
goods
 ii. Formula: (cover price – K price)
iii. Failure to cover doesn’t bar other remedies
iv. Party’s are not required to cover, but their consequential damages will be limited to losses
which could not reasonably be prevented by cover, or otherwise.
c) Damages for Non-Delivery or Repudiation—UCC 2-713
i. Formula: (market price @ time/place of tender – K price) + incidental & consequential –
expenses saved
d) Incidental & Consequential Damages [2-715(1) & 2-715(2)]
i. Incidental Damages [2-715(1)]: expenses reasonably incurred in the inspection, receipt,
transportation, and care & custody of rightfully rejected goods
ii. Consequential Damages [2-715(2)]: any loss resulting from breach which seller had reason to
know, and which couldn’t have been avoided by cover
iii. Incidental v. Consequential: incidental damages usually flow from the K itself, or the breach
of the K. Consequential damages usually involve a 3rd party where foreseeability is an issue.
e) Down-n-Dirty Overview
i. (2-711) Buyer gets back what he paid + (2-712) Cover (cover price – K price), OR (2-713)
Market Damages (market price @ time/place of tender – K price) + (2-715) Incidental &
Consequential Damages – expenses saved.
2. Buyer’s Remedies After Buyer Accepts Goods
a) UCC 2-714: Buyer may recover damages resulting from the non-conformity as determined in any
reasonable manner.
i. Formula: (Value of goods as warranted – FMV of goods as/when/where accepted + incidental
& consequential damages)
3. Seller’s Remedies When Buyer Fails to Deliver $, wrongfully rejects goods, or Repudiates
a) UCC 2-703 gives sellers an array of options, including:
i. Resale of goods (UCC 2-706)
ii. Damages for non-acceptance of goods (UCC 2-708)
iii. Action on the price (UCC 2-709)
iv. Incidental damages (UCC 2-710)
b) Resale of goods (UCC 2-706)
i. Formula: (K price – resale price) + incidental damages – expenses saved
c) Damages for non-acceptance of goods (UCC 2-708(1))
i. Formula: (K price – market price @ time/place of sale) + incidental damages – expenses saved
d) Alternative Non-Acceptance of Goods—Lost Volume Seller (UCC 2-208(2))
i. Lost Volume Seller Test (is ∏ a “lost volume seller” so this provision applies?):
1. ∏ possessed the capacity to make an additional sale,
2. It would have been profitable for ∏ to make the additional sale, and
3. ∏ probably would have made an additional sale had ∆ not breached
ii. Formula: Profit + incidental damages
e) Action on the price (UCC 2-709)
i. Seller may claim this remedy when a buyer fails to pay for the goods, and the buyer looses or
damages the goods after acceptance, and even if the goods remain in seller’s possession—but
only if efforts to resell are fruitless.
ii. Formula: K price + incidental damages
f) Incidental Damages (UCC 2-710)
i. Defined: Commercially reasonable charges or expenses incurred when stopping delivery, in
the transportation, care, and custody of goods after buyer’s breach, in connection with return
or resale of the goods.
ii. Note: Seller’s remedies do not include the recovery of consequential damages—they cannot
recover consequential damages!
 C. Liquidated Damages
1. Purpose: remove uncertainty and difficulty when proving actual damages in the event of a breach.
2. CL Validity Test: liquidated damages provisions are valid only if, when parties entered into the K:
a) Damages resulting from a breach would be difficult to determine
b) The stipulated amount is a reasonable anticipation of potential damages (objective test).
3. UCC 2-718(1) and Restatement Test: reasonableness of a liq. damages clause can be shown based on
either the anticipated or actual harm from the breach. “Reasonableness” is determined by looking at
either proof of loss or inconvenience / infeasibility of obtaining an adequate remedy.
4. Liquidated damages clauses don’t preclude other remedies at law or in equity.
5. If liq. damages are too high, it will be considered a penalty and the clause will be unenforceable—
even if the language of the K is specific and states it is enforceable.
6. If the liq. damages are too low, ask “is the amount unconscionable?”

II. TORT DAMAGES

A. General Information
1. Tort Damages Goal: compensate the ∏, but also economic efficiency, avoidance of waste, and
promotion of out-of-court settlement by using a predictable & objective measure of damages
B. Harm to Personal Property
1. Destruction of Personal Property
a) Formula: FMV @ time of destruction – retained value (scrap) + interest
b) Value of Destroyed Item
i. Generally, the value of a destroyed item is FMV
ii. Sometimes the value can be the replacement value
iii. If there is no market for the item, then the item’s value to the owner (what the owner would
have sold the item for, had he the opportunity)
iv. Sometimes the value can be determined by sentimental value of the item to the owner
c) FMV v. Consumer Model
i. FMV: what a reasonable & willing buyer, and a reasonable & willing seller, would be willing
to pay/sell, when negotiating at arm’s length.
ii. Consumer Value: the actual or intrinsic value of the property to the owner, excluding fanciful
or sentimental value
d) Destroyed Automobile Damages
i. Formula: FMV @ time of destruction + loss of use for the time reasonably required to
obtain a replacement
2. Reparable Personal Property
a) Formula: Cost of repair, provided that the repairs are economically feasible, + loss of use
i. Repairs are feasible: ∏ can recover the cost of repair, subject to the recovery ceiling
ii. Repairs not feasible: ∏ can recover the diminution in value only (FMV b/f – FMV after)
b) Recovery Ceiling: split of authority on whether it should be FMV or diminution in value
c) Repairable Automobile Damages
i. Repairable and able to restore to pre-accident condition: ∏ may recover reasonable cost of
repair + value for loss of use for the time reasonably required to complete the repair, not
exceeding the FMV of the car before the accident
ii. Repairable but not able to be restored to pre-accident condition: ∏ may recover diminution in
value (FMV before accident - value after), + reasonable value for the loss of use for the time
reasonably required to repair or replace it.
3. Converted Personal Property
a) General Rule: ∏ may recover FMV of property @ the time of conversion
i. Split of authority: some cts hold ∏ may recover (1) the highest market price for the property
btw conversion & trial, or (2) the highest market price btw conversion and a “reasonable time
after learning thereof”
b) NY Rule: ∏ may recover the greater of these two:
 i. FMV of property @ the time of conversion, OR
ii. Highest market value btw the date ∏ learns of the conversion and the expiration of a
reasonable period of the time thereafter (length of time necessary for a reasonable investor to
purchase a replacement)
4. ∏s always have a duty to mitigate their damages—therefore, ∏s can always recover the costs for
mitigating their damages.
C. Harm to Real Property
1. Permanent injury to real property
a) Damages: diminution in FMV of land (FMV before damage – value of land after damage)
b) Cap: FMV of land value b/f harm
2. Temporary injury to real property
a) Damages: cost of repair
b) Cap: FMV of land value b/f harm
3. Election of remedy: ∏ may choose $ to repair the property or $ for diminution in FMV land value.
However, if the cost of restoring the property to original condition is economically
unreasonable/wasteful, damages are measured by diminution in value (unless the ∏ has a special
reason to restore the property and there is reason to believe ∏ will use the $ to restore).
4. Damage to Trees
a) Trees have special purpose (shade, windbreakers, etc): ∏ may recover the diminution in the FMV
of the land (aesthetic value may be considered in unique cases).
b) Trees with no special value: ∏ may recover the FMV of the trees @ the time of destruction
c) Trees that can be replaced (small ornamental trees): ∏ may recover the reasonable cost of
replacements
5. Removal of Minerals
a) Removal by Unknowing/Non-Willful Trespasser
i. Formula: Landowner ∏ can recover the value of the minerals in place (the ground, unmined)
ii. Formula: Landowner ∏ can recover the value of the minerals in place – extraction costs
b) Removal by Knowing/Willful Trespasser
i. Formula: Landowner ∏ can recover the value of the minerals in place (the ground, unmined)
D. Personal Injury Damages
1. PI damages include:
a) Economic: medical expenses, loss of earning capacity, loss of future earnings, lost wages, and
punitive damages.
b) Non-Economic: pain & suffering, loss of consortium, and loss of enjoyment of l.ife
2. General Damages v. Special Damages
a) General: anyone with X claim will suffer X injury, like pain & suffering
b) Special: unique damages to ∏--they must all be plead and proven w/ specificity
i. Medical bills, lost income, special expenses, etc.
3. Per Diem Arguments
a) Defined: a tool of persuasion used by counsel to suggest to the jury how it can quantify damages
based on the evidence of pain & suffering (ex: “how much is missing a leg worth to you jury?
$100 per day? $1,000 per day? Let’s assume it is $500 per day—adding that up for the rest of ∏’s
life would equal ____.”)
b) Per Diem damage arguments to the jury are allowed and are not overly prejudicial if they are
made under the ordinary supervision and control of the trial court.
c) Positives of Per Diem Arguments: judge can explain argument v. evidence, jury instructions can
clarify the point, ∆ can anticipate & counter the argument
d) Negatives of Per Diem Arguments: attorney is giving testimony, illusion of certainty, no
evidentiary basis, juries are misled & confused by the math, ∆ counsel is put in difficult position
4. Loss of Consortium
a) A loss of consortium action is a derivative action
b) Tangible recoverable losses (have $ value): support & services
 c) Intangible recoverable losses (no $ value): companionship, love, affection, solace, sex
5. All $ awards must be reduced to present value, adjusted for inflation, and non-medical items should
not involve income taxation calculations.
E. Damages for Injuries Resulting in Death
1. Typical wrongful death acts, passed by statute, name specific beneficiaries with some relationship to
the decedent who may sue, giving limits to the types of recoverable damages.
2. Wrongful Death Action v. Survival Action
a) Wrongful Death Action: claims of the decedent’s beneficiary—Wrongful Death Acts provide for
distribution of damages to an enumerated group of beneficiaries. These suits focus on the loss to
the beneficiaries, not on decedent’s damages if still alive.
b) Survival Action: claims the decedent would have prosecuted in a PI action had the decedent
survived. These suits focus on the decedent’s damages if he was still alive, not on the loss to the
beneficiaries.
3. Expenses saved by death of person should be subtracted from overall recovery (ie, gym membership)

III. LIMITATIONS ON COMPENSATORY DAMAGES

A. Foreseeability
1. Foreseeability in Breach of K Actions: ∏ can always get general damages, but consequential or
special damages are only recoverable if the injury was foreseeable
a) Objective Test: what did the breaching party have reason to foresee at time of K-ing
b) K-ing is a consensual relationship—both parties should account for a possible future breach
2. Foreseeability in Tort Actions: Foreseeability is a threshold question—w/ no foreseeability may
come no tort action at all!
a) Tort actions focus on proximate causation, using the modified foreseeability doctrine.
B. Certainty
1. Prospective profits don’t need to be proven w/ mathematical certainty—they must, however, be
proven with reasonable certainty to be recoverable.
2. Calculating Lost Profits
a) Determine lost profits w/ the “Before & After” rule
i. Not good for new businesses b/c there is no “before”
ii. Not good for businesses forced quickly into bankruptcy b/c there is no “after”
b) Determining lost profits w/ the “Yardstick” rule
i. ∏ will find a comparable business that is as close to identical as possible, using that business
as a yardstick to determine what profits might have been
3. Presumption Against the Wrongdoer
a) Wrongdoers bear the risk of uncertainty
b) Exception to the burden:
i. ∏ need not prove the amount of damages with certainty if the acts of the wrongdoer have
made it impossible to determine them with certainty (∏ must still prove injury)
C. Avoidable Consequences
1. Rule of avoidable consequences has 2 components, 1 negative & 1 affirmative:
a) Affirmative: allows for damages reasonably incurred to mitigate damages (ex: mitigation)
b) Negative: precludes an injured party from recovering damages that could have been averted by
taking reasonable steps following accrual of the harm (ex: build bridge after knowing K canceled)
2. Factors to consider when evaluating mitigations:
a) Good faith
b) Reasonable skill, prudence, and efficiency
c) Reasonably proportioned to the injury and consequences to be averted
d) Reasonably justified belief that it will avoid or reduce otherwise expected
D. Collateral Source Rule
1. What it does: bars the introduction of evidence pertaining to proof of benefits or compensation that
the plaintiff received for the injury from a third party (i.e., insurance, gifts, etc.)
IV. PUNITIVE DAMAGES
A. General Information
1. Entitlement to punitive damages is dependent on the success of the underlying claim (derivative)
2. Basis for punitive damages
a) CL basis v. Statutory basis
b) Punitive damages are always discretionary and never a matter of right
3. Purpose for punitive damages
a) Deterrence, punishment, or retribution
4. Synonyms for punitive damages
a) Exemplary or vindictive damages
b) “Smart” Money
B. Standards and Awards
1. Standards to award punitive damages
a) Malice, Fraud, or Oppression
b) Willful, Wanton, Reckless Conduct/Indifference, or Gross Negligence (often products liability)
c) Evidentiary Standard: clear & convincing evidence
2. How much punitive damages should be levied against ∆? Consider:
a) ∆’s financial worth
b) Nature or Seriousness of (potential) harm to ∏
c) Duration of harm & ∆’s response when learning of the harm
d) ∆’s profit for the activity that caused the harm
e) Degree of ∆’s reprehensibility
f) Deterrent effect w/ or w/o the punitive damages—are any other deterrents available?
g) Evidence of past punitive damages levied against ∆ for same conduct in the past
C. Punitive Damages Applied to Vicarious Liability
1. There are 2 schools of thought:
a) Complicity Liability (majority view)—punitive damages available if:
i. Principle authorized, consented, participated, or ratified agent’s actions, OR
ii. Principle deliberately retained an unfit agent, OR
iii. Agent was in a managerial capacity acting w/in the scope of employment
b) Vicarious Liability (liberal approach)—punitive damages available if:
i. Agent is acting w/in the scope of employment
D. Bifurcation (Split) of Trials
1. Defined: Trials are split into 2 phases: (1) jury reaches determination on liability and whether
punitive damages are required (if answer is yes to both), (2) ∏ introduces evidence to support
punitive damages amount (look above @ #2)
2. Why bifurcate the trial: jury may become prejudiced with evidence relevant to determining punitive
damages amount.

RESTITUTIONARY REMEDIES
I. UNJUST ENRICHMENT
A. Unjust Enrichment Concept
1. Background Information
a) Do not focus on ∏’s loss, focus on ∆’s benefit/unjust gain
2. Examples of UE:
a) Unenforceable K
i. Ex: services rendered expecting compensation
b) Mistakenly conferred benefit
i. Ex: monopoly bank error in your favor, collect $200
c) Profit from wrongdoing beyond ∏’s loss
 i. Ex: savings from expense or loss sufficient for restitution
ii. Ex: waiver of tort and suit in assumpsit
3. Unjust Enrichment Elements:
a) ∏ conferred a benefit to ∆ (benefit = any type of advantage)
b) ∆’s retention of the benefit would be unjust (define what is “unjust” in your essay)
B. Legal Restitution
1. Quasi-Contract: a judicially-created K btw parties to ensure against UE
a) Quantum Meruit Action: ∏ can sue for benefits conferred for services rendered
i. Quantum Meruit Elements:
1. ∏ provided valuable services or materials to ∆
2. ∆ accepted, used and enjoyed them
3. ∏ expected to receive compensation
4. ∆ had some notice of that expectation
5. Retention of the benefit would be unjust.
b) Assumpsit Action: ∏ can waive a tort action and sue “in assumpsit” (implied K action).
i. “Waivable” torts: conversion, trespass to chattel, court split on trespass, not conversion
ii. Tip: theory to use if you cannot use Constructive Trust as a remedy.
C. Equitable Restitution
1. Constructive Trust
a) Defined: ∆ serves as trustee of property and must return it to ∏.
b) Courts can apply a constructive trust when:
i. There is a breach of fiduciary relationship, OR
ii. There is fraud, duress, or undue influence, OR
iii. “Other appropriate circumstances”
c) Advantages:
i. ∏ has “preference” in ∆’s possible bankruptcy
ii. ∏ may “trace” ∆’s gains from ∏’s misappropriated item to an item purchased by ∆ that has
appreciated in value, and
iii. ∏ may “trace” ∏’s item from ∆ to a 3rd party.
2. Equitable Liens
a) Defined: a money judgment secured by a lien on specific property (which can then be foreclosed
upon for $!)
b) Can be used when: there is no severable interest (usually used in property disputes!)
3. Choice of Remedy: Constructive Trust or Equitable Lien?
a) If the property value subsequently goes up = Constructive Trust.
b) If the property value subsequently goes down = Equitable Lien.
c) If ∆’s property cannot be traced solely to ∏’s property = only Equitable Lien is available.
i. Ex: stolen proceeds used to remodel home.

II. LIMITATIONS ON RESTITUTIONARY REMEDIES

A. Tracing
1. Tracing Defined: following misappropriated property into its substituted form.
2. When tracing may be used:
a) Use against the wrongdoer
b) Use against a 3rd party holding the exchanged property, only if they are not a bona fide purchaser
3. Advantages of Tracing:
a) ∏ may obtain specific restitution of property, through a constructive trust, when that property’s
value has subsequently increased!
b) If ∏ can trace, he then has priority over general creditors
c) ∏ is allowed to share proportionately in the proceeds ∏ makes of their stolen $!
B. Bona Fide Purchaser & Change in Position
1. Bona Fide Purchasers
 a) Bona Fide Purchaser Defined: A Bona fide purchaser is someone who purchases the property
without notice and for value
b) Policies protecting the legal title of bona fide purchasers:
i. Legal title is superior to equitable title and therefore defeats equitable title
ii. Between two innocent parties, a court of equity will not impose the loss on the party who has
innocently acquired title to the property for value.
2. Change in Position
a) The right of ∏ to restitution from ∆ (or 3rd party), because of a benefit received, is terminated or
diminished if, after receipt of the benefit, circumstances have so changed that it would be
inequitable to require ∆ (or 3rd party) to make full restitution
b) Ex: a fire destroys wrongfully delivered goods that were delivered to your house. You didn’t ask
for the good, you didn’t use the goods, but a fire destroyed them. You would then not need to pay
restitution on the goods, if the court thinks this is fire!
C. Volunteers
1. Volunteer defined: one who gives a gift to another
2. Rule: Recipients of gifts are not obliged to pay donors for them. Volunteers cannot force others to
become their debtors by providing them with unrequested goods or services and then suing them for
the value of the enrichment.

COMPLETING THE REMEDIAL PICTURE

I. ATTORNEY’S FEES
A. General Information
1. American Rule: attorney fees shall be born by each party independently
2. British Rule: the prevailing party is entitled to receive their litigation expenses
B. Exceptions to the General American Rule
1. Contractual Exception
a) Rule: parties to a contract are free to agree in advance that reasonable attorney fees can be
collected by the non-breaching party.
2. Bad Faith Exception
a) A court may assess attorney’s fees when a party has acted in bad faith in any of the following:
i. Bad faith in the course of litigation, or
ii. Bad faith in bringing or causing the action, or
iii. Bad faith in acts giving rise to the substantive claim
3. Statutory Exception (i.e., civil rights, environment, etc)
a) Congress passed several statutes that allow for recovery of attorney fees & costs in specific actions
4. Private Attorney General Exception
a) Applies only to actions in state court—doctrine is dead in the federal courts
b) Private Attorney General Defined: an attorney who pursues a cause for the public good.
II. DECLARATORY RELIEF
A. Nominal Damages
1. When recoverable: nominal damages are recoverable where ∏ proves he was wronged, whether or
not actual damages were proven
2. Rule: Absent proof of actual injury caused by ∆, only nominal damages may be awarded.
3. Important uses:
a) Establish rights (trespass cases)
b) Support atty fees (if available)
c) Support punitive damages (split of auth)
d) Support loss of due process rights even in the absence of injury (constitutional claims)
B. Declaratory Judgments
1. Defined: A binding adjudication that establishes the rights and other legal relations of the parties
w/o providing for or ordering enforcement.
 2. Was barred for many years because of Justiciability doctrine.
3. Uses today:
a) Vindicate constitutional rights that might otherwise be “chilled”
b) Speedy resolution of disputed patent claims
c) Interpretation of written instruments (wills, trusts, etc)

III. OTHER INFORMATION

C. Jury Trials
1. Mixed Claims of Law & Equity
a) State Courts: apply the “clean up doctrine.” No right to jury trial—judge decides both legal &
equitable issues.
b) Federal Courts: don’t apply the “clean up doctrine.” Jury trial is held for all legal issues and the
judge resolves remaining equitable issues in a manner not inconsistent with the jury’s decision.
c) Ex: 50 y/o guy gets fired for being old. He sues his company for reinstatement, back pay, and pain
& suffering. In federal court, you would get a jury trial for the back pay & pain & suffering, and a
bench trial for the reinstatement issue.
D. Pre-Judgment Interest
1. Rule: pre-judgment interest traditionally awarded only if the claim is liquidated ($ amount already
determined)
a) Usually available for property & contracts claims
b) This rule sometimes leads to ∆’s receiving an “interest free laon.”

IV. FINAL EXAM INFORMATION

A. ½ MC (btw 25 & 35 questions)
B. ½ Essay
1. One application essay (most of the points) applying principles to a fact scenario (normal essay).
2. One policy essay (a smaller %) asking “why should the law be this way?”