Civil Litigation Information

What are the typical types of lawsuits?

The most typical are:

Tort (typically “Negligence”) Actions:

A “tort” is a civil wrong. Say you were injured crossing a street by a driver speeding through the red light. You have incurred pain and suffering, medical and physical therapy expenses, and you missed work, using 20 days of sick leave. The driver’s insurance company offered to pay only the doctor bills and you are unsatisfied with the proposed settlement offer. You can file a tort action against the negligent driver in an effort to recover for both the out-of pocket costs and the physical or emotional injuries you suffered. Tort-based lawsuits are frequently brought for injuries sustained as a result of negligence, defective products, medical malpractice, unsafe premises, and unsafe products.

Contract Actions:

You paid a supplier to deliver merchandise. The goods were defective. You want your money back. Or you paid a contractor to repair your leaky roof and after constantly badgering him to finish the job, hired someone else to do it. You want to “sue the tar out of him” but at least recover what it cost you to have someone else do the job. You can file a civil action claiming breach-of-contract.

Private Nuisances

The proverbial “neighbor’s dog incessantly howling day and night and the neighbor does nothing” story. You file a lawsuit to force your neighbor to do something about his/her howling mutt.

What are Nominal Damages?

Nominal Damages are awarded in certain cases where, although the plaintiff has not sustained actual loss or injury, nominal damages are intended as a statement that the type of conduct the defendant engaged in should not be permitted. For example, if you own a large lot and a neighbor continually cuts across your property line, you may not have sustained damage, but an award of “nominal” damages will vindicate your right to exclusively occupy your land. In some cases, an award of nominal damages may even trigger the ability to collect punitive damages, legal fees, and costs.

What are liquidated damages?

Sometimes business contracts contain a “liquidated damages” provision, providing for payment of a certain fixed amount in the event of a breach. These provisions typically are upheld if the actual damages would have been extremely difficult to ascertain and the amount of the liquidated damages is reasonable. Courts generally do not enforce liquidated damages that are intended to serve as a penalty or are far in excess of the amount of damages the parties may reasonably forecast.

What are punitive damages?

Where the defendant’s conduct is found to be intentional or willful or wanton or malicious, the courts may permit an award of punitive damages in addition to compensatory damages. Punitive damages are intended to punish the defendant and to discourage the type of conduct that the defendant engaged in. For example, in the O.J. Simpson civil case, the jury awarded relatively modest compensatory damages, but awarded the Brown and Goldman families tens of millions of dollars in punitive damages against Simpson, because the jury found, that Simpson murdered Brown and Goldman.

If I win a case, am I entitled to attorney’s fees?

The general rule in American courts is that each side bears its own attorney’s fees and expenses, unless attorney’s fees are provided for in a contract you have signed or in a special statue providing for attorney’s fees. In contrast, in England the victorious party typically recovers its attorney’s fees from the loser, who thus must bear the other side’s fees and its own. A major drawback to English approach is that people of average mean cannot afford the risk of initiating litigation, even though they have a very strong claim, because of the possibility that they would be wiped out if for any reason they were not victorious. Attorney’s fees are provided by statue, in some circumstances, For example, in cases involving copyright violations, discrimination matters, and environmental matters, there are specific statues providing for attorney’s fees.

What is an injunction?

An injunction is an order of a court requiring a person, corporation, or government entity to stop doing something and refrain from doing that thing in the future. In relatively rare cases, the court may issue a “mandatory injunction”, compelling a person, company or government unit to take affirmative action to do something. Injunctions historically are issued only “when the remedy at law is inadequate”. For example, suppose you owned a home surrounded by 100 year old trees and your neighbor claims the trees are on his property and is planning on cutting them down. While the dispute is pending, the court might well issue an injunction preventing the neighbor from cutting down the trees until the matter is heard and completely resolved. Otherwise there could be irreparable harm to the land, money damages could not replace the trees, and the damages you would be entitled to could be speculative.
Another example of when an injunction may be issued is in the case of an ongoing course of conduct that violates your rights. For example, assume you own a website and another firm keeps on coming back and copying the material on your website in violation of copyright notices, no trespass notices, and contractual provisions. A court will issue an injunction to prevent that conduct from recurring.

What is the difference between a temporary restraining order, preliminary injunction, and permanent injunction?

A temporary restraining order is typically issued in circumstances where immediate action is called for. Courts often issue “TRO’s” based on affidavits from a person whose interests are about to be harmed. For example, if people with chainsaws are about to cut down your trees, the court could be in a hurry to act, sometimes before giving the other side a chance to reply. A preliminary injunction is usually issued only after the other side has been given an opportunity to reply and be heard, and has either consented to maintain the status quo or not made a sufficient showing to defeat the plaintiff’s claims. A permanent injunction is typically issued after a full trial on the merits, or with the consent or default of the other side.

When might a court refuse injunctive relief?

Persons seeking injunctive relief typically have to show some sense of urgency in order for the court to act. If you were aware of circumstances for a while and did nothing about it, the court will be inclined to deny your request for injunctive relief. In another words, if you unreasonably delay in asserting your claim, particularly where the delay has prejudiced the other party, the defense of “laches” is applicable. The period of laches may be much shorter than the legal statute of limitations. The court in each case will determine whether the delay was sufficiently long and sufficiently unreasonable for laches to be operable. “Unclean hands” is another defense to injunctive and other equitable relief. If you yourself have been guilty of inequitable or wrongful conduct with respect to the particular matter at issue, the court will likely not issue an injunction. The “unclean hands” arises out of the particular matter you are suing on and courts are not supposed to examine your conduct in other matters or question your general character in dealing fairly, but judges are human.

What is a release?

A release is a type of contract in which you agree that you have no claims of any type against the party named in the release. Releases are often in connection with a settlement of legal claims. For example, if you were involved in a car accident and the other driver’s insurance company offers to fix your car, the insurance company will probably demand that you sign a release, agreeing that in exchange for the cost of your repairs, you will not sue the other driver under any circumstances. Be very cautious about signing any release. If you sign a “General Release”, you would be giving up your rights to sue should you have any physical injuries that you are unaware of or if a passenger in your car later sues you for her injuries in the accident. Signing any form of release without advice from a lawyer is like signing a blank check and giving it to a stranger. Our advice is to never do it. What is ejectment? Ejectment is a legal remedy that can sometimes be used to remove a person from wrongfully occupying your real estate.

What is replevin?

Replevin, sometimes known as “claim and delivery”, is an old-fashioned legal remedy in which a court requires a defendant to return specific goods to the plaintiff at the outset of the action. Although rarely used, replevin can be a very powerful weapon in a case where somebody is wrongly holding your property, because it deprives the defendant of the use of your property while the case is awaiting trial, which increases the likelihood of a quick settlement.

What are constructive trusts and equitable liens?

A constructive trust and an equitable lien can be used to prevent unjust enrichment. Although there are technical differences, both can be very powerful remedies where a person has wrongfully taken your property, since you can prevent the wrongdoer, and the wrongdoer’s creditors, from keeping your property in the event of an insolvency. In some cases, it is also possible to “trace” property and claim the fruits of the wrongdoer’s conduct. For example, if the wrongdoer misappropriates your 100 shares of IBM stock, then worth $5,000, and quickly sells the stock and uses the $5,000 to buy shares of a “high-flyer” that are now worth $25,000, using the remedies of constructive trust or equitable lien might enable you to recover the $25,000 in stock, instead of the ordinary compensatory damages of $5,000 (the value of the property at the time it was taken), plus interest.