What are Legal Remedies?
Remedies explain how a loss is made whole in the eyes of the law. Remedies are fundamental to the justice system. Without remedies for wrongdoing, wrongdoers would face no consequences for their acts. Remedies are as varied as crimes and civil harms; there are almost as many remedies as elements of claims. Maybe that is too many. In the early days of jurisprudence, judges would make up punishments on the fly. Now days, statutes, precedents, and legal scholars publish entire treatises about remedies. This post is the first in a series outlining remedies and defenses in civil litigation .
Remedies are broken into two main categories: legal remedies (also known as "remedies at law") and equitable remedies (also known as "remedies in equity"). Legal remedies are the most straightforward: for example, money damages to pay for losses. Equitable remedies are less straight forwardly financial: injunctions telling parties what they must or must not do. In equitable remedies, courts have great flexibility in deciding what, if anything, to order. Although equitable remedies were the province of the Chancery Court in England, the ideas have not been retired. Judges today are still required to decide whether a remedy is equitable or legal, and if equitable, whether it is appropriate to provide the equity.
Categories of Legal Remedies
Legal remedies can be either preventive or reparative. Preventive remedies are typically injunctions, while reparative remedies most commonly come in the form of compensatory damages or punitive damages. Injunctions – An injunction "is a judicial remedy whereby a party is required to do or to refrain from doing a particular act." State ex rel. Johnson v. Derryberry, 13 Ohio St.2d 151, 152, 234 N.E.2d 122 (1968). There are two types of injunctions: prohibitory and mandatory. A prohibitory injunction commands a party to stop a particular action, while a mandatory injunction commands a party to do a specific action. Id. Courts will grant an injunction only in cases where there is no other adequate remedy at law. Continental W. Condominium Unit Owners Ass’n, Inc. v. Young, 121 Ohio St.3d 505, 2009-Ohio-1761, 905 N.E.2d 163, paragraph one of the syllabus. Therefore, injunctions are not a proper remedy if there is already a remedy at law that would sufficiently compensate the injured party. Compensatory Damages – In Ohio, a jury can grant compensatory damages that are intended to make the injured party "whole." This is done by returning the injured party to a position that is as nearly as possible the same as the position held prior to the wrongdoing of the other party. Hurt v. Lewis, 165 Ohio St. 105, 112 N.E.2d 35 (1953). Punitive Damages – Punitive damages may be awarded in addition to compensatory damages in order to punish wrongdoing. Plaintiff may only recover punitive damages "if he or she proves that the defendant acted with malice or aggravated or egregious fraud." Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 634 N.E.2d 326, paragraphs three and five of the syllabus. Moreover, punitive damages may not be awarded in excess of twice compensatory damages. Id. at paragraph four of the syllabus.
Compensatory vs Punitive Damages
Compensatory damages are exactly what they sound like: compensation to the plaintiff for the harm done. Put another way, compensatory damages are meant to help put the plaintiff in the position they would have been in had the defendant not engaged in the wrongdoing. A jury’s calculation of compensatory damages may involve carefully determining the extent of economic losses or using other, softer evidentiary factors to help them arrive at an amount.
Punitive damages, on the other hand, are intended to punish the defendant for egregious behavior or wrongdoing. Their purpose is to deter others from carrying out the same action by showing that the consequences will be severe. Defendants, unsurprisingly, seldom react well to punitive damages.
It’s important to note that there is an element of vagueness in the process of determining punitive damages. While there are limits to how much a jury can award, the judge will consider the case on its merits and, as such, the award may need to be tweaked.
While it may seem that large punitive damages awards would be a cause for celebration on the plaintiff’s side, this isn’t necessarily the case. While $10 million seems like a lot, if the jury is awarding compensatory damages of $100 million, it may seem less consequential to the court, which will then reduce or throw out the award. In other words, the compensatory damages award is the thing you want to really be big, to compensate for the harm done, while punitive damages should be relegated to a secondary role.
Types of Equitable Remedies
While money damages may be the most common form of compensation, judges and courts do have the authority to award remedies such as injunctions and specific performance.
Equitable remedies are an order to the person who is causing a problem to "treat others fairly and justly". It is meant to bring about fairness and justice for all parties involved. A court with equity powers may grant injunctions, specific performance of a contract, or other relief in order to fairly resolve the dispute between the parties.
Injunctions and specific performance are awarded in a case when money damages will not work. Their purpose is to force the defendant to either do a certain act or to stop doing so. Injunctions and specific performance allows courts to order that an act be done or not done. Courts like to put the defendants under an injunction so that they may be required to refrain from something. In contrast, specific performance is awarded to require someone to fulfill a promise – they must do something.
A specific performance is an order of the court that requires a person or business to fulfill the terms of a contract that they originally made with another. Specific performance is used when money damages will be inadequate because unique goods are involved or a piece of property is involved.
An injunction is an order that requires a party to do or cease from doing a specific act. Courts may award an injunction to prohibit someone from committing certain action. Ex: a party may be enjoined from using physical force against another party. An injunction also prohibits a party from making threats or defamatory remarks. Ex: if someone witnesses a crime they may be enjoined from threatening a witness from testifying against them.
One injury that cannot be properly compensated by money is the personal dignity of a person. If the actions of another are effectively taking a human being’s dignity away, courts will enjoin them from doing so.
Determination of Remedies
Determinants for Remedies
The settlement of a dispute or the remedy awarded in litigation is largely determined by the facts and circumstances of each case and it is not always possible to provide an exhaustive outline of what type of remedy a court will award in every situation. Some guidance, however, can be derived from the jurisprudence and statutory guidelines.
A remedy may be determined by the following:
The correct approach is first to determine the nature and scope of the rights in issue, second, to determine whether there is a breach, third, to determine whether a court should make an order and finally, if an order is appropriate, to consider what form of order ought to be granted . Discretion must be exercised in a principled manner, based on facts which are relevant to the issues. It must be exercised judicially on a proper consideration of the facts.
The court is required to exercise its discretion and does not have an unfettered and arbitrary choice of remedy. One may not jump to a conclusion as to the remedy without determining the nature of the breach and the rights which have been infringed. The approach is not, however, to move from the nature of the right, through the nature of the breach, to the appropriateness of a particular remedy, to the nature of the harm and finally, to the measure of the award to be granted in respect of the harm.
The South African courts will grant an appropriate remedy within their jurisdiction when it determines a matter.
Getting Remedies
Another hurdle for a plaintiff hoping to obtain a remedy is the inability to establish harm to his legally protected interest. Even if a plaintiff has standing, courts may still be reluctant to grant equitable relief when an injunction or other prior restraint on the defendant’s conduct will essentially order the defendant to sit idly by while someone else, with comparable or even greater rights, proceeds with their own course of action. Thus, a court may find that the legally protected interest of the plaintiff, even if established, is not sufficient to warrant issuance of a remedy. An applicant for equitable relief who shows a valid claim to such a right of action, but fails to demonstrate real damage or inadequacy of legal remedies is not entitled to injunctive relief.
Procedural hurdles also exist. For injunctive relief, a plaintiff must demonstrate not only that there is a wrongful act or default which should be restrained, but also that he has no compensation or relief by the ordinary proceedings of law due to the nature of the act and injury caused, and that efforts to restrain the act or obtain relief by such ordinary proceedings would not be adequate to prevent future injury to the aggrieved party.
The burden of proving an adequate explanation for not proceeding by ordinance proceedings to obtain damages is on the party seeking injunction pending suit. Where the evidence is conflicting as to whether or not damages as are recoverable in an action of trover and conversion were ample to compensate for the alleged injury, and as to whether it was possible to do equity in the cases by means of a suit at law, the question must be decided by the jury.
In some limited (but often critical) factual situations, a plaintiff who has been injured beyond monetary damages, but not factually "entitled" to a legal remedy, may be left without in a court of law and a practical remedy, if not for a select few exceptions where a court of equity may do broad justice. But the weight of authority is to the effect that a plaintiff in equity must seek satisfaction in damages if he has a full and adequate remedy at law, i.e., all of the features, rights, and remedies which the contract gives him can be presented in the action.
Trends in Remedies
The field of remedies law, though often overshadowed by the substantive issues to which it is an adjunct, is poised for a vanguard of change based on the inexorable advances in technology and the way the legal industry addresses the concept of damages.
While there is still an appreciable death knell rung for the so-called paperless office (the stacks of paper are still multiplying and commingling in rainbow hues throughout our profession, and buildings still exist which store records in boxes), legal practice and court procedure solicits technological solutions to the inundation of documents, volumes of case law in advanced search queries, and requests for production and disclosure of electronically stored information. These practices are clear in New York, where the eDiscovery Pilot Project and amendments including CPRL 3045 have been implemented.
These technological evolutions are also collaborative in nature, with a cornucopia of experts, databases, algorithms and programs ranging from conflicts searches to expert evaluation costs to data mining analysis of prior discovery disputes readily available in the marketplace. Coupled with increasingly elaborate and complex case law addressing the appropriate contours of discovery demands, these solutions create an environment where an increasing reliance on a comprehensive understanding of a damages universe is critical to a successful prosecution or defense of a claim.
For example, as available remedies grow and evolve, new pleas are entered, including "never heard of before" arguments as to the nature and ability to survive various motions to dismiss. The resulting divisions of cases, however solid their arguments, creates a ripe forum for the exacting study of available damages in a strategic culling of potential remedies. Case law itself is rarely finally settled. As the Court of Appeals observed in Yahoo! Inc . v. Liberty Mut. Ins. Co., "courts in this district approved fee applications sent on spreadsheets . . . but a different district court in the Second Circuit found that the use of spreadsheets in fee applications was contrary to the proper use of fee application." (2008 WL 6201987, at *1).
Courts are also taking an increasingly expansive view of what constitutes a proper subject, the determination of which requires a precise knowledge of complicated and often arcane areas of the law. In its opinion in City of New York v. Lead Industries Ass’n, the Appellate Division notes, "there are no cases in New York direct on point which discuss the broad scope of the term ‘identical injury’. And the rule of partial summary judgment set forth in City of New York . . . is solely based on interpretation of the court rule, requiring that the parties "shall submit copies of all rulings" where the court may cite such authority." (2010 WL 9964572, at *1).
As part of this unraveling of narrowly tailored and previously foreshadowed discussions of remedies law, the states also experience the reverberations of developments in other jurisdictions. For example, the classic restatement of punitive damages under the principle of reprehensibility is now several decades removed from the Supreme Court’s guidance in Pacific Mutual Life Insurance Co. v. Haslip. District Courts in the Southern and Eastern Districts have also directly addressed the threshold requirements for imposition of punitive damages in New York under the New York standard of conduct insufficient to merit the most minimal penalties for moral outrage. Given these disparate approaches, the question now remains whether those standards are irreversible or will continue to transform. (See, e.g., JPMorgan Chase Bank, N.A. v. IDA, Inc., 2005 WL 1653180 (S.D.N.Y.)).