More Key Concepts in Civil and Criminal Law

CHAPTER 16

Remedies

Once the trial is over, what can courts order to enforce rights or correct injuries?

Once all witnesses and jurors go home, what then?

A menu of remedies is summarized below. Remedies are divided into three categories, based on the type of action involved: criminal, civil, and equity.

IN A CRIMINAL CASE

. . . In a criminal case a court can order:

Punishment:

A fine, penalty, or confinement ordered against a defendant (∆) by a court. The order is called a sentence. 'I sentence you to '.

The Eighth Amendment of the Constitution assures us that punishment cannot be 'cruel and unusual.' That would be a punishment that ìshocks the moral sense of the communityî: e.g., torture, or a disproportionate sentenced - a punishment that is much too severe for the crime committed.

Confinement:

means loss of freedom; being held in lawful custody. Jail, prison, reformatory.

Fine:

A pecuniary (money) punishment.

Restitution:

An order for the ∆ to give back what was taken, fix what was broken, and so on. Restitution is sometimes ordered as a condition of a probationary sentence.

Community service:

An order that the ∆ perform a job that serves a community interest, such as helping the poor, cleaning an area of a city, et cetera.

IN A CIVIL CASE... In a civil case a court can order:

Damages:

Payment of money. The idea is to restore the parties to where they would have been if the injury or breach, et cetera, had not occurred.

For example, in a breach of K the plaintiff (Π) may be entitled to be put in as good a position as he would have enjoyed had there been no breach. The law speaks about 'making him whole.'

In torts, restitution is essentially the measure of damages. The law attempts to compensate the parties for the harm they have suffered. Of course, many cases cannot be ìmade wholeî with money, but this is the form of remedy available in civil actions. It is as close as the law can come.

These include payments for Pain and suffering:

1. The physical and mental/emotional trauma suffered by the Π; Loss of earning capacity:
   Attempts to measure someone's ability to earn wages in the future;
2. Loss of consortium:
   The loss of the company/love/ support, et cetera, of a spouse.
   

Over the years, courts have created the year's new forms of damages.

Damages may be compensatory/actual or punitive/exemplary.

1. Compensatory/actual damages:
   Compensate the injured party for his actual injury.
2. Punitive/exemplary damages:
   Awarded to a Π beyond what will compensate him, where his loss was caused by ∆ís outrageous conduct, such as by fraud, malicious or willful misconduct, or intentional torts such as defamation. The damages are designed to solace the Π for his mental anguish, hurt feelings, and shame, and to punish the wrongdoer.
3. Double (or treble) damages:
   Most often awarded in antitrust cases. The judge doubles (or triples) the jury award against a ∆, when authorized to do so by statute.
4. Nominal damages:
   A trivial amount of money to vindicate a right, where there is no real loss or injury.

Other forms of remedies:

Expectancy damages:
In a breach of K these may be awarded to the Π to put him back in the position he would have enjoyed if the K had been performed.

For example, you had a loan arrangement for eight percent, but the creditor breached the K. By the time you got another loan, interest rates had moved up to nine percent. You could sue for the difference, the amount of money you will lose because of the breach.

Restitution:
The act of making good, of restoring, so as to prevent ìunjust enrichmentî by either party.

Mitigation of damages:
Once there is a breach, both parties are obligated to minimize the damage. For example, if you lose a job due to a breach of K, you are obligated to seek a comparable one. You canít just sit at home waiting to collect damages. Damage awards are reduced by the amount of money that the injured party should have mitigated.

IN AN EQUITY CASE . . .

In equity cases courts have powers to grant remedies other than monetary ones.

These include the following:

Injunction:

A court order forbidding you from doing something you have been doing or threatening to do, or ordering you to do something. Also called a 'restraining order' or an 'order to cease and desist.'

Injunctions and restraining orders are granted to prevent irreparable harm (harm that canít be repaired; Humpty Dumpty canít be put back). They may be used when there is no other legal means to right the potential wrong, when money damages may not suffice. They are designed to prevent harm, not to compensate for a past injury.

For example, your neighbor is about to cut down your tree. A husband continues to physically abuse his wife. A chemical plant dumps pollutants into the lake. Someone is infringing on your copyrighted material.

Temporary restraining order (TRO):

An order forbidding someone from doing some threatened act until the matter can be heard in court. These are often issued on an emergency basis and can even be granted on an ex parte basis. That is, the court can grant a TRO to one party without prior notice to the other party. A court hearing is then scheduled to determine whether the injunction should be made permanent or lifted (ended).

Remember, these are equitable remedies-the rule of justice, safety, and necessity governs, not the rule of specific laws.

Cease and desist order:

Similar to the above; designed to order a party to stop doing a harmful/ forbidden act. For example, in a labor dispute one side may be ordered to stop the unfair labor practice. A union may be ordered to stop its strike and go back to work, pending mediation. These terms, injunction, TRO, and cease and desist order, are sometimes used interchangeably.

Specific performance:

In K cases. A court order to perform the K as specified. This remedy exists for cases in which monetary damages would not make the party 'whole.'

For example, in the sale of a house, if the seller breaches the K, the buyer may seek specific performance: that is, an order forcing the seller to sell the house. The thinking behind this remedy is that since there is no house anywhere exactly like this one, specific performance is the only way to make the buyer ìwhole.î This remedy can be ordered in the sale of goods, where the goods are unique: a specific painting, antique, car, and so on.

Reformation:

A remedy whereby the written K between parties may be revised. This may occur because both parties made mistakes when they wrote it; or because there has been fraud.

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