Stetson University College of Law
	REMEDIES Professor Tim Reilly

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Hypothetical to Introduce Remedies Possibilities

Course Description

An Ad-hoc Non Exclusive Listing of Remedies

A Draft Overview of Remedies

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Hypothetical to Introduce Remedies Possibilities

Usually law courses start with answers and end with questions, woven into hypotheticals. Let's reverse that and see what are some of the questions dealt with in this course. What questions do you ask yourself or of legal research about this?

On January 3, 1993, Mr. Painter, a world renowned artist and owner of an acre lot at 3711 Woodlane Avenue in Tampa Palms subdivision, made a contract with Mr. Builder, a famous architect, to custom design and individually build him a home as indicated in specifications and blueprints therein incorporated by reference, at a total and complete cost of three hundred thousand dollars. Painter paid Builder in advance with two hundred thousand in cash and one of his paintings appraised at one hundred thousand. The contract provided that if the house was not completely finished and ready for occupancy on July 1, 1999, the liquidated damages would be a hundred and fifty thousand dollars.

Mr. Builder loaned the painting to the Tampa Art Museum for a temporary display. The painting display and the architectural design of the house engendered publicity likely to increase the value of both.

A few days later Mr. Painter and his wife had to fly to the Mayo Clinic in Rochester, Minnesota, for unexpected medical treatment for him. On January 10th Builder sent his foreman to set the corners of the house. The foreman did so on the lot at 3711 Woodline Avenue, after which Builder's crews continued during the next six weeks constructing the foundation, slab, outer block walls and roof.

As construction proceeded the heavy trucks on the lot caused erosion and pollution of the river flowing past the lot and the adjoining one of Mr. Neighbor, also threatening the flooding of Neighbor's swimming pool.

On March 1st, Mr. Seller, a retired accountant, the actual owner of the lot at 3711 Woodline Avenue happened to discover that a house was being built on his lot, but anxious to sell, it he said nothing hoping to either get the house as a windfall or a better price for the underlying lot when the house was finished. On March 15th while walking around the construction, Mr. Seller fell into a pit covered by scrap plywood, breaking his leg, which resulted in his hospitalization for a week, unable to drive for two months and taking him out of the competition for the 1999 Florida Stock Car Derby for which the prize was $10,000.

Soon after Builder learned of Mr. Seller's injury and the house being built on the wrong lot, he requested the Museum to return the painting as soon as convenient, and made airline reservations for Switzerland.

On April 1st, Mr. Painter died. In his will he left his Tampa Palms property to his niece, Polly, an architectural student, who was delighted to have the new home as designed and constructed by Mr. Builder, which could advance her own career. However, when she went to see it there was no house on her lot.

Assume you are any of the following and argue accordingly.

What does Polly Painter want? What are her rights and remedies?

What does Builder want? What are his rights and remedies?

What does Seller want? What are his rights and remedies?

What does Neighbor want? What are his rights and remedies?

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I. Catalog Course Description: "A general examination of traditional, legal and equitable remedies in a variety of contexts of declaratory relief and of current remedies developments in the public law area."

II. Text: Cases and Materials on Remedies by Re and Re, 1996, The Foundation Press, Third Edition by Re and Krauss also usable.

Recommended References:

Dobbs, D.B. Law of Remedies, 2nd Ed., Reserve Desk

Newman, R.A., Equity and Law: A Comparative Study, Reserve Desk

III. Course Content: Modern Remedies courses are a blend of principles and practices from many legal disciplines including:

Torts Contracts Property

Damages History Equity

Jurisprudence Civil Procedure Administrative Law

Composed of a combination of legal subjects, the Remedies course deals with the questions and answers concerning what one expects a court to do after a plaintiff prevails on the merits. Several possible remedies may arise form the same set of facts or a claim. For example in a contract suit the possible remedies might include specific performance, injunction and/or damages.

Historically, the various Remedies were derived in England from either.

1)  The Common Law Courts which acted in rem on the property (or debt) of the defendant and used trial by jury to determine damages.

or

2) The Equity Courts, which developed from the authority of the King's Chancellor to mandate action in personam from a defendant such as by Injunction or Specific Performance. Equity decision (decrees) are made by the Chancellor/judge alone.

Eventually the two systems were merged with the major remaining distinction being that damage claims carry the right to jury determination.

Generally there are four basic types of Remedies:

1) Money Damages, to compensate for losses sustained by tort or breach of contract, which may include: General, Special, Punitive/Exemplary, usually determined by a jury; and Liquidated where provided by contract.

2) Coercive, such as Specific Performance and Injunction, backed by the court's contempt powers and mostly from Equity.

3) Restitution, against unjust enrichment which may involve money or other property and includes constructive trusts, equitable liens, subrogation etc. Restitution is sometimes considered to include Rescission of Contract for mistake or misrepresentation.

4) Declaratory such as the construction of contracts or constitutionality of a statute.

Some Ancillary Remedies to assist enforcement of Remedies include:

a) Contempt, both civil (coercive) and criminal (punitive).
b) Writ of Execution for money damages.
c) Equitable Receivership.
d) Appointment of Masters, Commissioners, Accountants.

Remedies also include the use of Writs which are usually named for the first phase of the writ in its original Latin form, sought by Petition for Writ of:

a) Habeas Corpus b) Certiorari c) Quo Warranto

d) Prohibition e) Assistance f) Sequestration

 

IV. Class Responsibility: You are in preparation to become "Counsel" for clients, courts and agencies. Therefore, your practice in helping this class present and analyze the readings, references, cases and materials is expected as a routine part of your professional development. In order to have comfortable, confident, well prepared leadership, all students will be assigned cases or topics in advance, individually or in partnership.

V. Classmates and Colleagues: Consider yourself introduced to your classmates. As soon as seating stabilizes, you'll be provided with a copy of the seating chart. Similarly, when you join a firm or agency you'll have to learn who's who and who's where as quickly as possible. We will function as a cooperative team, as a law firm does. So, in this course, as in the active practice of law, it is NOT considered unethical to give a colleague a quiet prompt or assist when helpful. While all students are expected to "think on your feet" (even when sitting down) and will be challenged to do so, no one will ever be deliberately embarrassed. You are not expected to merely recite the case or text, but to lead our thinking about it. Don't be concerned or embarrassed about making mistakes; we often learn more from mistakes than incidentally being right the first time. For that purpose some "mistakes" are programmed into the course, so yours - and mine - will just enrich it.

VI. Attendance: Attendance records will be maintained consistent with the Law School's general policy, as required by the American Bar Association to assure adequate professional preparation. Observation and preliminary research indicate that absences coordinate closely with final course grades. Regardless of the reason for the absence, missing a class naturally results in missing some knowledge, understanding, insight or implication available to the students attending that class. That gap usually causes the lessening of your potential course grade by about one-third letter per class absence.

Although absences count for any reason, including school sponsored moot court competition and employment interviews, as a matter of professional courtesy, if there is a legitimate reason for an absence, please let me know in writing, so you are not considered unreliable, as some former students unfortunately remain. If you know you will have a miss a class, arrange with a classmate for notes, a briefing or tape recording.

If you will miss your assigned recitation, never leave your co-counsel, case, or the court (class) stranded without alternate coverage. That is the beginning of potential malpractice, and in order to assure that it will not happen again in real practice, you will be assigned several additional recitations to impress you with the importance of a lawyer being highly reliable.

VII. Grading: Final grades will be determined by a 3-hour explanatory and hypothetical case type exam.

VIII. Active Listening: In earlier times you could "learn the law" and become a lawyer by self-study and apprenticeship in a law office. Lincoln (about 1850) and Miranda’s first attorney (about 1960) prepared this way. Today the American Bar Association required graduation from an accredited law school. So regardless of how self-teaching you may be, you still have to attend law school classes.

Law school classes are usually by dialog with progressive questions and tentative answers. This is known as a "dialectical" method of learning, for encouraging the gather, analysis and clarification of thought. So for the most efficient learning in class focus on active listening to the ongoing dialog. As other students respond, compare your understanding with theirs. As the professor questions, draft tentative answers you would give and see which seems most enlightening. When you don’t understand a point, preferably ask about it right then, or if you are holding on to your shyness until you pass the bar, jot down the questions and ask it immediately after class. Since questions reflect active minds, it is usually possible for professors to recognize and predict the general final exam standings of the class as a whole by the quantity and questions of the class during the term.

IX. Questioning: Some students refrain from questioning for fear of appearing dumb, but there is no such thing as a dumb question because the natural function of a question is to assist a mind to learn. For a variety of reasons (including the professor’s own need for further thought or research on the question) some questions may be postponed until a later class or for individual discussion after class. An unasked question is a lost opportunity to learn.

Questioning is an essential skill and art of a lawyer. Become aware and skillful in your own skill and art of questioning. Practice questioning and practicing analyzing responses, which are not necessarily answers to the questions. Notice some general forms of questions, such as:

1. Closed question — seeking to obtain a particular answer;
   e.g. "What?, When?, Where?, How?

2. Open question — seeking to obtain a general response with context;
   e.g. "What happened?"

3. Leading question — seeking confirmation of a contention;
   e.g. "Are you telling the jury you did not see the other car?"

4. Rhetorical question — seeking acquiescence of one’s own statement;
   e.g. "Isn’t it a shame?"

Learn to realize:

A. When the questioner has a right to the answer. As a lawyer you often have a professional responsibility of confidentiality, which will require an evasive response.

B. When the question is or is not being answered at all, directly or indirectly. Is the answer somewhere within the response or is an answer being evaded?

X. Open Door Policy: All sessions of my classes are open to visitors, guests and tape recorders. You are welcome to phone, e-mail or stop by my office any time.

XI. Are You Heard? As a lawyer, to be effective or worth your fee, You have the responsibility to be heard. If you aren’t heard your efforts are useless and you are an annoyance. Your awareness and adaptability of your voice may be one of the first "tests" in an interview by a prospective employer, managing partner or client. With a jury, if you are not adaptable to their hearing, you are a liability to your client.

Below the age of 35, about 30% of male student voices and about 50% of female student voices do not happen to have the natural volume, pitch, timber, tone and articulation that make them easily heard and comprehended more than a few feet away. Therefore all lawyers need to be sure they are being heard by modulating and projecting their voices in proportion to the acoustics, distance and hearing of their listeners.

The hearing of acuity of your older professors, including this one, may not be as accurate as that of your age group, but is typical of the judges, juries, clients and older attorneys you will be addressing. Therefore, if I can not hear you clearly or believe you would not be clearly heard in a court room, it is YOUR responsibility to adjust accordingly, and you will be asked to do so, and referred back to this section of the syllabus. Be aware of all your listeners and project your voice accordingly. For practice, go into an empty classroom, preferably with a classmate as a testing listener, and practice projecting your voice loudly and clearly to all areas of the room, as you will be expected to do in any courtroom, conference room of public hearing room.

If during class you do not clearly hear the recitation, commentary or questions of your classmates or the professor, do them the favor of calling out, Louder, please." If you have to be asked more than once by the professor or classmates to repeat or speak up, YOU have a need to pay more attention to being heard as part of your preparation for the practice of law.

XII. Class Times: As required of instructors four centuries ago by the student-managed University of Bologna so they would get their tuition's worth of learning, I routinely begin and end class right on time. However, if you are delayed in traffic or detained in another class, don't be worried about coming in whenever you can.

XIII. Conferences: As in law practice, you are expected to work with those assigned to the same case or topic and to determine for yourselves how you will present them. Never leave your partner stranded. Small study groups are recommended to discuss and review the doctrines and principles of the course. I am available to meet with individuals and study groups after most classes and whenever mutually convenient almost every class day. For equality of (missed) opportunity, no ex-parte conferences after the last class.

XIV. Office: Crummer Hall next to Public Defender Clinic. Phone: 562-7875. Voicemail available. You are also welcome to phone me at home, 343-7093. Office hours: generally before and after classes and as mutually convenient.

XV. The Instructor: Tim Reilly was born and raised in Milwaukee, Wisconsin where he completed his bachelor's degree in Journalism and master's degree in Education before serving with the U.S. Army at Fort Bliss, Texas. After graduating from Stetson Law School, he was in private practice for several years before concentrating on teaching. He has taught History, Economics, Logic, Ethics, Criminal Justice and Legal Assistantship. As a visiting professor, he taught at Sophia University in Tokyo and at the Florida State University Center in London. He has participated in study-travel programs in Japan, China, Austria, Russia, Greece, Ethiopia and Ireland. At Stetson, he has taught Constitutional Criminal Procedure, Criminal Law, Seminar on Comparative Legal Systems and Remedies. For ten years, he was director of the Criminal Justice program on the St. Petersburg Campus of the University of South Florida, where last year he was named a professor emeritus. He is currently vice chairman for the International Programs Committee’s efforts for the summer session in Estonia and beginning of the LL.M. in International Business.

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An Ad-hoc Non Exclusive Listing of Remedies

A.    Basic, Primary Remedies - Claimant gets money or court action

1.    Monetary Damages, usually to compensate for tort losses

1. General
2. Special/Consequential
3. Punitive, for deterrence
4. Nominal to vindicate a right

2.    For Contract Claims

1. Specific Performance of contract as agreed
2. Liquidation Damages Provision, as stated in contract
3. Rescission - Cancellation
4. Reformation - Re-formed to match real agreement

3.    Injunction

1. Prohibitory
2. Mandatory
3. Sequential: temporary, preliminary, permanent

4.    Restitution - for Restoration of property or money to original position

5.    Declaratory Judgment - with presumption of compliance

B.    Ancillary,  Methods for Implementing Primary Remedies

1.    Contempt,  may involve immediate incarceration

1. Criminal contempt for vindication of court authority or punishment for failure to obey court order/injunction
2. Civil contempt for benefit of Plaintiff

2.    Attachment and Execution, sale of property, net proceeds to Plaintiff

3.    Appointment of Special Masters, Commissioners, Accountants

4.    Sequestration and Receivership

5.    Eviction

6.    Garnishment

7.    Bill of Quia Timet or Remove Cloud from Title

8.    Interpleader, deposit into court custody

9.    Bill of Peace, joinder to avoid multiple suits

10.   Ne Exeat, form of detaining within the jurisdiction

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A Draft Overview of Remedies

I.    Cooperative - Without use of judicial system via Negotiation, Mediation, Arbitration

II.    Administrative - Use of governmental action from Administrative agencies or criminal justice systems

III.   Preventive

A.    Declaratory Judgment - to authoritatively judicially resolve dispute about rights of the parties before either side harmed by reliance on its own contentions.  Does not result in direct order or punishment for past actions, although provides a basis for later coercive remedy if needed.

Examples:

Statutory Construction Constitutional Interpretation Bond Validation Quia Timet Action Bill to Quiet Title Cancellation of Instrument Nominal Damages - confirm and vindicates a right

B.    Prohibitory Injunction -- to stop an action or one clearly intended, enforced by contempt powers

civil -- criminal --

to coerce obedience to punish disobedience

IV.    Coercive

A.    Mandatory Injunction

B.    Writs:

Mandamus Prohibition

Quo Warranto Habeas Corpus

V.    Compensatory -- to pay for harm suffered by plaintiff

A.    Compensatory damages

1. General
2. Special

B.    Court Costs

C.    Attorney's Fees

VI.    Punitive Damages -- Incidentally to a plaintiff for his initiative in bringing about a correction, and essentially as a deterrent to defendant and others.

VII.    Restitutional -- To restore to the plaintiff all that defendant gained at the plaintiff's expense, (which may be more than the plaintiff originally lost, such as profits from defendant's use of plaintiff's property or rights).

via:  Rescission
        Quasi-Contract
        Constructive Trust
        Equitable Lien
        Accounting for Profits

VIII.   Ancillary -- To implement and enforce the primary remedies

Contempt Execution Special Masters Sequestration

Garnishment Receivership Ne exeat

 IX.    Merger of Law and Equity:

Law --	The usual remedy via Jury Determination of liability and amounts of general, special, nominal and punitive damages
Equity --	Discretionary Jurisdiction only where remedy at Law (Damages) is non-existent or inadequate

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Students ask me, "What is the Remedies course all about?" Granted that it sounds more like one in a medical or pharmacy school than a law school. Our course deals with what your client wants — or can get — after prevailing on the merits. Suppose your client suffers a breach of a contract. Does he or she want money damages?, specific performance?, an injunction?, recision?, restitution? or what other remedy? The course combines legal remedies, which may involve a jury determination, and equitable remedies as determined by a judge as a chancellor.

As the Syllabus indicates in III, it is something of a "Capstone Course," interweaving substantive and procedural matters. Thus it serves as a general review, incorporation and application of much of what you have been learning in other courses — and will soon be using in professional practice.

I hope you will enjoy the Remedies course as much as I do conducting it. I say "conducting" because we will be working together more like an orchestra. For the opening Prelude we’ll play with the hypothetical on the other side of this memo. It does not require that you know any of "the law" of Remedies, but helps to illustrate some of the issues, problems, principles and policies that are the recurring themes making up the symphony of Remedies.

Ordinarily I do not post assignments ahead of the first class. When I was a law student, that seemed intimidating to me when I did not know anything else about the course. However, with this memo you have some more advance information to provide insight into the course and its conductor. It will be more efficient if you will please be prepared as follows, which should take you no more than your usual class preparation time.

1. Toy with the hypothetical on the back of this memo. Select one client to represent and be prepared to argue his or her perspective, just for the fun of it. You do not need to know any of the course in advance; assume you are arguing to make the law in a case of first impression. How do you think and argue?

2. Read closely the portions of the attached syllabus that point out the major topics of the course content. Get those into your mental hard-drive for structure.

3. Scan for about 15 minutes the text Table of Contents to see how the author organized the text; paying attention to the heading, not the particular cases.

4. Read the narrative explanations on pages 1 to 7 of Chapter 1 and pages 19-30 of Chapter 2. Jot down any questions.

Realize that confusion and puzzlement are the beginning of learning.