Remedies

This episode is an introduction to topics in Remedies. We discuss (1) the difference between equitable and legal relief; (2) the difference between preliminary and permanent relief; (3) the traditional 4-part test for preliminary relief; and (4) types of final relief. We also briefly mention pre-judgment attachments.

Transcript

Speaker 1: 0:14

Podcast. I am your host Thomas Mayne. And this episode is an introduction or an overview to the topics in remedies that we need for a civil procedure. Course. This episode is probably going to be just under an hour long. So we'll take a break somewhere short of the 30 minute mark. So that will help you plan accordingly and let's get started. It is common to describe the doctrines and rules of civil procedure as appearing in a chronological sequence has phases or stages of litigation. And if we think of those phases and stages as unfolding on a timeline or a vector final remedies are the destination of those lines where litigation heads, and ultimately that's what our clients care about is the remedy they care far less about what is the name of the cause of action or what kind of motions who's going to file when that's not their interest? Our clients care about things like, can you get my child who was just suspended from junior high school? Re-instated can you keep my niece from publishing a book that has salacious details about our family in it? Can you get my competitor to quit selling a product that infringes our patent, our intellectual property rights? Can you get a court to require the defendant to make a public apology? Can you get that for me? Can you get enough money to cover all of the unknown future expenses to care for our seriously injured daughter who might be having these medical expenses for 40, 50, 60 years into the future? There are doctrines that dictate and that constrain what remedies are available. It's not a free for all, and you've seen or will see some of these doctrines in a contracts course or a torts course or an environmental law course or insurance law course. There are substantive doctrines that constrain the applicable remedies. There's also a course called remedies that treats these matters systematically, but remedies are such an important part of litigation that we need to have some understanding of remedies in order to do our job as litigators in the context of a civil procedure course. And that's mainly because looking from that end point of the final remedy, there are all sorts of upstream consequences upstream on that timeline, but influence the way things happen in the procedural context, there are doctrinal upstream consequences. There are also very practical, upstream consequences. Like if I know what the final remedy is that could influence how or whether I'm going to be able to get paid by my client, what the ultimate remedy looks like is going to affect my strategic decisions as far as the risk and the reward of certain decisions that I would need to make. So remedies influences procedure. So we do need this basic understanding, and that's what you'll get here of all the topics and remedies. There are four that we really need to understand in a civil procedure course. And the first two are purely matters of terminology, including terminology that we'll use to address the letter two of the four points that I want you to master. The first point that I want you to master is the difference between legal relief and equitable relief. You'll see this everywhere in your courses, legal relief and equitable relief. As far as the difference between them is concerned. You'll have the right answer about 95% of the time. If you just remember, the legal relief is money and equitable relief is everything else. Now, when we opened this lecture, I talked about clients coming to us, wanting their child reinstated into the junior high school. The niece being prevented from publishing a book, the competitor being ordered not to sell some product that infringes our intellectual property, right? None of those clients were seeking monetary damages. And so if you want to sound fancy about it, you say they were not seeking legal relief. They were seeking equitable relief. Legal relief is money. Everything else, reinstatement order, not to publish order, not to sell everything else like that is a flavor of equitable relief. So imagine now the plaintiff has a breach of contract claim. The plaintiff paid the defendant a hundred thousand dollars to build a boat and halfway through the construction process, the defendant quits building the boat because of let's say rising costs. They just didn't finish the project. What plaintiff sues when the plaintiff sues, if the plaintiff seeks by way of a final remedy money, I want cash from the defendant. We call that legal relief. We also call it a remedy at law. Legal relief is the same as remedy at law in a contracts course or a remedies course. We could spend days thinking about the different kinds of damage awards that might appropriate for breach of that contract. But if we're talking about piles of cash, smaller piles of cash, larger piles of cash, those would be different measures of legal relief or put differently. Those would be different calculations for the available remedy at law. But sometimes the plaintiff doesn't want a pile, a cash in a situation like that. After all the whole reason the defendant is breaching. This contract is because the cost of construction was going up. Plaintiff says, I don't want to deal with that headache. I don't know how much money I'm going to need or proving how much money I'm going to need to get somebody else to build this boat. And I didn't want somebody else to build this boat. This is the expert boat builder that I hired, and I want them to finish the contract. As they promised to do that, plaintiff might be seeking as a remedy, an order from the court requiring the defendant to finish building the boat. That's not a legal remedy because the plaintiff isn't seeking a pile of cash. They're seeking an equitable remedy. I've promised that legal remedy equals cash. Everything else equals equity. That that will get you the right answer. 95% of the time. It's not a hundred percent of the time because of some historical anomalies. There is a separate episode called a history of Anglo-American civil procedure. And you would hear more about those historical anomalies. In that episode, the super short version is that there used to be, as we go back centuries into Anglo-American procedure, there used to be two different court systems. There were law courts and there were equity courts. And generally speaking, the law courts could only award monetary relief, but the equity courts as derivative of the divine right of Kings had much more wide ranging discretion and could order people to do things, not just pay money to the plaintiff. And so that idea that the equity courts had this discretion to order people to do things or to refrain from doing things that was a unique feature of the equity courts. But over time, the law courts did develop the capacity to order a few things that looked like equitable remedies. And so, for example, when somebody was wrongfully possessing land, the law courts could award money for the wrongful detention and could order ejectment and notice that the EG[inaudible] ejecting somebody from the land. Well, that order looks equitable and the law courts could do that, even though it looked equitable. And similarly, the equity courts, in addition to ordering people to do things or to refrain from doing things with sometimes add on monetary awards. And so then you would see something that was coming out of the equity courts that looked like a monetary payment, but the idea is generally speaking, law equals cash equity equals everything else. The most salient consequence of the label of whether something is legal or equitable is the availability of a jury trial. And so that is one of those upstream consequences. But I described at the outset of this lecture where depending on what the remedy is at the destination, well, there are consequences to that, including things like, well, what do we need to plan for? In equity cases, all issues were resolved by the judge. There was no jury in law cases, fact questions were resolved by a jury and we still have the legacy of that. So an upstream consequence of the remedy that the plaintiff seeks is the availability of the jury trial. That's one of the upstream duct Trinal consequences, and certainly the most salient one in a civil procedure course, but just so you know, there are other consequences that we can't cover their issues about appeal, ability when something is appealable, arbitrary ability, insurance coverage, there are all sorts of consequences that flow from this label of whether something is legal or equitable. And so that's why one of our four points that I want to make in this remedies lecture is just making sure that you're comfortable with that terminology remedies at law also called legal remedies. And they're in contrast to equitable remedies. The second point that we get to cover is more terminology. And here we need to make sure that you're really comfortable with the difference between preliminary injunctive relief and permanent injunctive relief preliminary versus permanent. Neither of these words means exactly what a lay person probably thinks they would mean. Let's talk about preliminary first, the mistake here would be thinking that preliminary means tentative or contingent. Instead, what we mean is a preliminary injunction means an injunction that applies during the litigation. It's preliminary to a final judgment. It's preliminary to a final disposition of the case. So during the course of litigation, a preliminary injunction is fully binding on the parties and it will last or could last as long as the litigation itself lasts, there are two main types of preliminary relief. And those two types are temporary. Restraining orders often referred to as TROs, temporary restraining orders and also preliminary injunctions. And it's easiest to think of a temporary restraining order as a bridge to a preliminary injunction. And then a preliminary injunction in turn is a bridge to the final judgment. So the idea is a plaintiff who needs emergency relief to restrain the defendant from releasing that product into the marketplace or starting construction on the development project. They might get a temporary restraining order restraining the defendant from starting that construction and that lasts well, there are all sorts of rules about this, but generally speaking, 14 days. So a temporary restraining order is a bridge that restrains the defendant for 14 days. And during that 14 day period, you would get a preliminary injunction, which in turn would be the bridge to restrain the defendant until there is a final judgment in the case. So their preliminary to a final judgment with the temporary restraining order being something of a preliminary preliminary injunction can also think of it that way. These two forms of preliminary relief are in contrast to permanent injunctive relief. And again, the idea of the word permanent can be misleading. The mistake here would be thinking that permanent injunctions have to last forever or in perpetuity since thereafter OIC permanent well, permanent injunctive relief might last forever, but probably not. What makes relief permanent in the sense of this term is that it's part of the court's final judgment. That's all. So permanent relief might be an order requiring the defendant to build that boat or to deliver the source code. Permanent relief could also be more enduring. It could be an order to desegregate the schools. So not just something that can be finished in the next couple of months, but something that might go on for years or even decades, if you want to latch some meaning to the word permanent, the court's supervision is permanent in the sense of enduring authority. If the defendant fails to comply with the order, the judge forever could continue to try to enforce its order requiring the defendant to do or to not do whatever it was that was in that final judgment. So now with that terminology intact, let's go to the third of our four main points of this lecture. And that is to make sure that you have a sense of the four traditional requirements for preliminary relief. Preliminary relief would typically issue at the outset of litigation. A plaintiff would file a complaint and with their complaint would be a motion for a temporary restraining order or a motion for a preliminary injunction and what the court would order. If they grant that motion is some order requiring the defendant to do something or to refrain from doing something while the parties litigate preliminary relief is sometimes absolutely essential to the plaintiffs. It's essential because the litigation without the preliminary relief could be completely few tile. And similarly, sometimes really the whole case is as a practical matter, only about the preliminary relief, there's conceptually a case, but really the fight is about the preliminary relief. Let's sort out those circumstances let's figure out why that happens. The average civil case in federal court is terminated about nine months from the date of its filing. That's the average case cases that reach trial are on average, about two years in duration. So two years from the date of filing to the termination of the case two years, if it goes to trial of all cases, the average lifespan is about nine months. So with that in mind, imagine that your client, the plaintiff is trying to preserve the, let's say the last survivors of some endangered species that is threatened by a development project. We can file a complaint and nine months from now, more or less, we'll have a resolution of the case or two years from now in a trial, we'll win this case, but here's the problem without preliminary relief while we're litigating, the case could become moot or winning two years from now and getting a piece of paper that tells the defendant that they can't continue with this development project because of some endangered species. Well, the project is completed. The endangered species is gone. These situations aren't at all rare. Imagine that you're litigating to prevent the secretary of state from using some particular voting procedure mail-in ballots or some kind of computerized machine. Well, litigation takes a while and less, we're going to complete this litigation before the decision needs to be made. We've got a problem or you're trying to get that child reinstated into the eighth grade. Well, if you're trying to get them reinstated in the eighth grade, and litigation's going to take one year, two years, three years, well, if we don't have that preliminary relief, while we litigate, then the litigation is pointless. This last example also illustrates how frequently the preliminary injunction fight is really the whole fight because when a plaintiff sues to get their child reinstated into the eighth grade, well, if they win the preliminary injunction and the child is reinstated into the eighth grade while they litigate whether or not he should be reinstated into the eighth grade, whether or not what the school did was appropriate under the applicable law. Well, it almost doesn't matter to the plaintiff, whether they can win the ultimate case, they just need to win the preliminary injunction to get the child reinstated and noticed that that would be true from the defendant's perspective as well. But once they've lost a preliminary injunction and the court has required them to allow that student to return to their school, well then what are they even fighting about when the preliminary injunction and you're in lose the preliminary injunction? Well, then what happens if you're the parent of that child, you need to move on to plan B. The kid has to go to school somewhere. So you move on to plan B. Well, in theory, yeah, you're still litigating whether or not he should be reinstated into your plan a school, but once they've moved on to plan B, even if we win the litigation six months from now, nine months from now two years, we probably won't return to that original school. The point of that hypothetical is to illustrate all of the attention that is on that preliminary injunction. That's really all that matters in the lawsuit. Indeed. There's also a formal recognition of that where sometimes courts will consolidate the whole case into the preliminary injunction, recognizing that the preliminary part is really the whole thing. Sometimes the harm might be irreversible during the course of litigation, but even without a preliminary injunction, the litigation is still worthwhile. That wouldn't be our circumstance with our kid being reinstated in the eighth grade, probably, but it might be the situation where, for example, your litigating against a factory farm to stop cruelty to animals, and you're invoking some right to prevent that particular action on the part of the factory farm, a bunch of animals will suffer, cruelty without a preliminary injunction during the course of the litigation. But yet even if the plaintiff can't get preliminary injunctive relief to prevent harm to those animals, it would not be futile to get an order from the court nine months, two years, whatever three years later that prevented cruelty to future animals. Another example of a plaintiff who would like to get some preliminary relief would be a company who is trying to prevent some competitor from using their intellectual property. Imagine a new social media company is about to release a new product and your client. The plaintiff says that company is using our patented technology. We'd love to prevent them from releasing that product. It could take awhile to litigate the issue of whether they are using our patented technology and a preliminary injunction would enjoin the defendant from releasing that product while we litigate, whether or not they should be able to use that technology preliminary injunction is how we would get there. And from that plaintiff's perspective, they might say, it's going to be few tile. We're going to be completely out of business. By the time we win some lawsuit against this defendant will have lost all of our customers. Our brand will be tainted. So they would argue that litigation would be futile that's from their perspective. In all of these examples, we've been looking at it from the plaintiff's perspective where poor plaintiff is going to suffer. If they don't receive preliminary relief, they'll suffer because during the course of litigation, the consequences will be so catastrophic that even winning will be pointless. But don't forget to view preliminary relief. Also from the perspective of defendants, when a court is thinking about preliminary relief for the plaintiffs, the plaintiff has not proven their case yet. And if the court gives them preliminary relief, it's kind of pretending that they have proven their case. It's giving the plaintiff what they want. And defendant says they haven't proven their case. And yet they're getting what they want, keeping us from releasing that product into the marketplace, or requiring us to reinstate that kid into the eighth grade. This hurts us notice that it also encourages the plaintiff to delay litigation because they now have what they want. Defendant says, don't give the plaintiff preliminary relief. If they get that they will have received it without proving their case. And they're going to then delay the litigation because they have everything that they want. We're almost ready then to address the four traditional requirements for preliminary relief. But before we do, I want to address one more species or flavor of preliminary relief. And that's called pre-judgment attachments. Not exactly the same thing as a temporary restraining order. Not exactly the same thing as a preliminary injunction. It's sort of a cousin pre-judgment attachments involved cases where plaintiff ultimately hopes to recover money. So in the typical scenario, this is a plaintiff seeking a legal remedy, not an equitable remedy, but what the plaintiff wants to do is to seize or attach or freeze certain property that the defendant has and that attachment or seizure or freezing of that property is necessary because when the plaintiff ultimately gets their monetary award in nine months or 18 months or three years, or however long, it takes them, the plaintiff wants to make sure that there is an ability on the part of the defendant to pay that award. So they're looking ahead saying we're going to win$1.5 million in X period of time. But when we win, it would be nice if the defendant had money to be able to pay that particular award. So let's see is the property that can be used to pay that award let's freeze, that particular asset let's attach that property. Think of those as just synonyms attachment, freeze, seizure, garnishing. There are many different terms, but in these pre-judgment attachments, it's the plaintiff seeking a monetary award, ultimately when using the prejudgment attachment procedure, to make sure that the defendant actually will be able to pay that money when the time comes. So in that sense, the prejudgment attachment looks a lot like preliminary relief, but on the other hand, the inability to pay money is not the same thing as being unable to recreate the eighth grade experience for that student two years later, and being unable to pay a monetary award is not the same thing as trying to resurrect a species that is now extinct. One reason we say those situations are different, is that even if the defendant is unable to pay a final judgment at the time of the final judgment, they might someday be able to pay, or they might be able to borrow money at some point in the future and pay. It's not literally impossible. And moreover being unable to pay a judgment is something that's sort of always in the cards. That's sort of a known risk of litigation. Allowing prejudgment attachments in the ordinary course would also just be an administrative burden. Judges would have to figure out at the outset of litigation, what the plaintiff's likely damages would be, but who knows what that number is yet, they would need a sense of that in order to then also figure out whether the plaintiff would likely be able to recover those damages from this defendant restricting the defendant's use of property during litigation is also a big burden. Imagine litigation against you, preventing you from selling your car, preventing you from selling jewelry or preventing you from liquidating an account to pay your tuition or to buy books or defendant corporations preventing them from selling inventory. Well, this is a tremendous burden. It's also a mix and match of legal and equitable relief, which makes us a little suspicious. It's a mix and match because the plaintiff is ultimately seeking damages legal relief. Yet they're using the devices of equity, which would be an order requiring the defendant not to sell a certain asset while the parties litigate attachments are a species. Like I said, a cousin of preliminary relief and they generally follow what we're about to discuss, but there is specialized terminology that applies in the prejudgment attachment context. And what we're going to focus on now is more applicable. The terms are more applicable to requests for temporary restraining orders or preliminary injunctions. And so of course, these are those plaintiffs coming, looking for an order to reinstate the child or to stop the construction project while the parties litigate their respective rights and responsibilities. Before we tackle the traditional four part test for preliminary relief, let's take that promised 32nd break. So rest your head, or just skip ahead for 30 seconds.

Speaker 2: 29:28

[inaudible]

Speaker 1: 29:29

So we're ready then for this third of the four major topics I want to cover in this lecture, and that is the four traditional requirements for getting preliminary relief. The first of these requirements is the irreparable injury requirement also called the no adequate remedy at law. What we're looking for here in this first requirement is whether this plaintiff who is seeking this preliminary relief will suffer some irreparable injury. If we don't give them this preliminary relief that they seek. So in the litigation against the school, by the parent of the eighth grader, the plaintiff seeks a preliminary injunction, ordering the defendant school to reinstate this child. While the parties litigate the propriety of the suspension or expulsion of this student, will the plaintiff suffer some irreparable injury. If we don't give the plaintiff the relief that they seek. So this requires a hypothetical on your part where you have to imagine, well, if we don't give the plaintiff this reinstatement into the eighth grade, and if let's say a year and a half from now, we find out that the plaintiff is right. Can we do something to make this all right, can the final judgment at the court enters really give the plaintiff what they need here? Or if you look at that scenario and you say, no, that's not. There's nothing the court can do at the end of the year and a half that's because you're imagining the irreparable injury let's tackle that other hypo. If we don't prevent the competitor social media company from releasing the product, what we're considering here on this first requirement for preliminary relief is let's hypothesize plaintiff wants this injunction, okay. If we don't give the plaintiff this injunction, and if we find out a year from now or two years from now that the plaintiff is right, that the defendant's product does infringe the plaintiff's intellectual property rights. Can we fix the problem then? So our hypothesizing about the harm to the plaintiff, if they don't get this preliminary relief has two dimensions to it. One is the idea of imagining how bad will it be? What will happen to this poor eight grade kid? What will happen to this poor company that now has an unfair competitor. We have to imagine the harm. That's one dimension that requires you to think that through and imagine what it would look like. And the second dimension is then to make sure that whatever your harm is that you just described is the kind of harm that can't be undone. When this litigation is complete. If a pilot cash can make the plaintiff whole, well, then that's not irreparable injury. It might be enormous substantial injury, but it wouldn't be irreparable injury, unless it's the of injury that can't be undone that can't be compensated for. And this notion of compensation or dealing with it in the final judgment is also why this first requirement is sometimes referred to rather than irreparable injury is instead cast as whether the plaintiff has a adequate remedy at law. Remember law means generally damages. What that characterization of this first requirement means then is, well, if the plaintiff can be made whole with a damage award, when they finally win this suit, well, then they have an adequate remedy at law, or they haven't suffered an irreparable injury. When they received the suitcases full of cash, they will be made whole, before we turn to the second requirement, I want to make a quick reference to pre-judgment attachments. Again, remember that prejudgment attachments are sort of the cousin of preliminary relief. And I said that the requirements for a prejudgment attachment plaintiffs who want to get the court to freeze or seize certain property to satisfy a monetary award, that they anticipate they seek pre-judgment attachments rather than preliminary relief in the spirit that we're describing now. But I said that the requirements are similar. They sort of track. And so the analog in the prejudgment attachment world to this first requirement is that the plaintiff needs to establish that the property that I'm trying to get the court to attach is going to disappear. The defendant is going to sell their house for a dollar to their sister. So if that property is the only way that the defendant would be able to satisfy a judgment 18 months from now or two years from now, the plaintiff says, if we don't preserve this asset, then a future win would be futile since any judgment would be essentially unrecoverable. Let's look at the second requirement. Now, the second requirement is sometimes referred to as the balance of harms, but I've always found that to be a little misleading, but we use the courts terminology when we're talking to the court. And when it's just us, we can recharacterize the requirement just so that we make sure that we do the analysis properly. And then we'll translate it back into their language when we're presenting the argument to them. But it's not a balance of harms that we're looking for here in this second requirement. What we're looking for in this is really just the mirror analysis that we just did for the first requirement. In the first requirement we asked, will the plaintiff suffer irreparable harm if they don't get the preliminary relief, but do win the case in this second requirement, we flip that. We say, what harm will the defendant suffer? If the plaintiff does get the preliminary relief, but the plaintiff doesn't win the suit. So we're asking here in this second requirement, how much have we hurt the defendant? If we give the plaintiff the preliminary relief that they seek, but it turns out that the plaintiff didn't have a case after all. So with our example of the school, defending that action brought by the parent of the eighth grader, our inquiry here would be what harm to the school, if they are forced to accept the reinstatement of this student, since that's the preliminary relief that the plaintiff seeks, but as it turns out, the suspension or expulsion was entirely legitimate. So if we find that out later, well, what is the consequence to the defendant of being subject to that reinstatement preliminary injunction for the duration of the litigation, the more onerous the obligation to comply with that injunction, the greater the harm to the defendant here that we are measuring in this second requirement. And of course with our other hypothetical is if the defendant is forced to delay the release of that product, that the plaintiff says violates the plaintiff's intellectual property rights. Well, how big of a deal is it to the defendant to be ordered not to release that product into the marketplace while they litigate? Just like we said, with the first requirement, you've got to be a creative lawyer here and be able to imagine what things might look like when we're arguing a preliminary injunction, the case has just begun. So what you're imagining, whether it's the first requirement, and you're saying on behalf of plaintiff, this is the harm. They will suffer in the future. If they don't get the preliminary relief, or if you're the defendant arguing the second requirement here saying, look at how much harm we will suffer. If we do find ourselves subject to that preliminary relief, you are hypothesizing. You have to imagine those future circumstances. Now I referred to this second requirement is something of a mirror of the first, but appreciate that there is an important difference when we talked about the irreparable injury to the plaintiff, we said that we weren't going to include in that first requirement injury that could be compensated with piles of cash. The plaintiff, if they ultimately prevail, they'll get a judgment from the defendant. And the judgment of damages could include the damages that the plaintiff suffered during the course of the litigation. But that's not the exact same situation. Is it when we're talking about defendants, when we're talking about defendants, well, the defendants might suffer some injury during the course of the litigation. Let's imagine that it's that school district again. Well, if they had to reinstate that student, maybe they had to hire more security guards or teachers or additional cameras or do something to the school because the whole reason they suspended this person was because they thought they were a menace or a danger to the student body. Well, if the defendant school district is subject to a preliminary injunction, requiring them to reinstate that student, but that plaintiff doesn't ultimately win, appreciate that. It's not the same situation for a defendant when they get a defense verdict in the case two years later, because the defense verdict, isn't giving them a pile of cash for that injury that they suffered during the course of the litigation. So one way of dealing with that is just saying that here in the second requirement, the defendants harm doesn't need to be irreparable. We could just say here that even if money would compensate the defendant, well, that's not how it works. When defendants get defense verdicts, there isn't an award of damages that comes with the defense verdict. They just incurred all of that expense during the course of the litigation for those additional measures caused by the preliminary relief, but they won't be compensated for that. So one way of dealing with that is just to say that even monetary loss by the defendant should be included here in this second requirement, but courts have developed another way of dealing with that situation. And that is through the use of something called bonds. The current procedure requires plaintiffs when they're seeking preliminary relief to post a bond, which essentially is a pile of cash that can be used to compensate the defendant for monetary expenses associated with their complying, with the preliminary relief that the plaintiff seeks and that pile of cash is there. If, but of course only if the plaintiff doesn't ultimately win the suit, because if plaintiff gets the preliminary relief and the defendant then complies with the preliminary relief, but the plaintiff doesn't win the suit, the bond, the pile of cash can then be used to make the defendant whole, or at least to compensate them for the monetary loss up to the value of the bond. So then that allows us to treat this second requirement, the harm to the defendant as sort of a irreparable harm to the defendant where the idea is that reparable means that if the bond can compensate it well, then we can deal with that kind of injury at the backend. So the only harm that we'd be worried about then here on this second requirement is if the defendant is subject to the preliminary injunction, but the plaintiff doesn't ultimately win. What harm might the defendant suffer beyond the amount of the bond itself? Maybe it's because it's monetary harm in excess of the bond, or maybe it's the kind of harm that isn't monetarily compensable. Those are the first two requirements that a judge is required to consider on a motion for preliminary relief. The third is the likelihood of success on the merits, and this is referring to the merits in the ultimate litigation. So when the plaintiff is bringing the action for cause of action XYZ, and they're seeking preliminary relief, what we're asking here in this third requirement is what's the likelihood of plaintiff succeeding ultimately on this cause of action for XYZ. And this is a really important requirement. Indeed. It would probably be the only thing that a court would need to consider. If we knew whether or not the plaintiff was going to win, if the plaintiff was going to win the suit, well, then we should give them the relief that they're entitled to. As soon as possible, if the parent of the eighth grader is going to win this action, let's not deny them the relief any longer than we have to. And of course the reverse is true. If we knew with a hundred percent certainty that the plaintiff was not going to win this suit well, then there's no reason to give them preliminary relief. So likelihood of success is sort of the most important question, but the problem is, is that it's the question that's probably also hardest to answer. Presumably all of the stages of litigation mean something. We go through all of the stages of pleadings and motions and discovery and pretrial motions and trials. Those stages are meaningful. None of that has happened yet. And yet here we are at the outset of a lawsuit trying to get some highly speculative inquiry into well, is plaintiff likely to win this thing. We have no idea what we're going to find out in discovery or how the contours of this litigation are going to unfold, but we'll take a stab at it and get some sense of the plaintiff's likelihood of success. That's this third requirement that courts are supposed to consider and obviously the greater, the likelihood of success. Well then the more that preliminary relief is appropriate, because again, imagine if it was 100%, if we were a hundred percent likely, well then of course give the plaintiff the relief. Don't deny them another day. If you're a math fan, there's a famous formula here. If you're not a math band, skip ahead, 60 seconds. The formula reduces all three of these requirements into one formula that essentially compares the costs of two mistakes. And so the idea is you grant the preliminary injunction, if the harm of an erroneous denial to the plaintiff times, the risk of error. So that's usually referred to as a P where the P is the probability that plaintiff is ultimately going to win the suit. So harm of an erroneous denial harm to the plaintiff, H sub P times the risk of error, where P is that risk of error and P is the likelihood to plaintiff ultimately wins the suit. So that's the product that you put in front of the greater than sign we'll grant the preliminary relief when that product is greater than the harm of an erroneous grant, which would be the harm to the defendant times one minus P. So that's the risk of that error. So the risk that defendant ultimately wins, but suffered this harm during the course of the litigation itself. Okay. We're back from our foray into math. The fourth requirement that a judge must consider on a request for preliminary relief is the public interest requirement. And this is a placeholder for judges to make sure that they're including anything else that might be relevant to the grant or the denial of this request for preliminary relief. With the other requirements, we already will have considered harm to the plaintiff. If they don't get this preliminary relief arm to the defendant, if the plaintiff does get this preliminary relief, but what about non plaintiffs and non defendants? Does anybody else have a stake in this? That's why this fourth requirement is here. Sometimes the preliminary relief might invoke certain issues regarding health or safety or economic growth or business climate, or the environment as a practical matter. Usually the plaintiff or the defendant will have already included these things. So for example, in our hypothetical involving the school, facing the litigation by the parent of the eighth grader, the school will probably make arguments about the safety, their concerns with the other students or the cost to the school district, and therefore the taxpayers, if they're required to incur certain expenses to comply with the preliminary injunction. So we can expect in many circumstances to public interest requirement to not play an important role, but it officially is part of the traditional test. And it certainly is useful to us as advocates reminding us that there might be other constituencies or other issues at stake that could influence the appropriateness of preliminary relief in a particular instance. So it's really useful to us as just part of our mental checklist too. So those are our four requirements. Then a judge considering a request for preliminary relief must consider and balance all four of them in reaching their decision. Judges have very broad discretion upon consulting these four lines of inquiry, whether to actually grant or to deny the request for preliminary relief, the power to grant or to deny preliminary relief has often on the list when people are talking about the enormous power of a federal district judge, because that power to grant or to deny that preliminary relief can have profound consequences on parties and disputes and litigation, and even society generally notice that this is a power that appellate judges wouldn't have instead. This is the awesome power of a trial judge vested with the power of equity. I think that's enough of an introduction to preliminary relief, remembering those four traditional requirements. There are all sorts of other fun things about preliminary injunctions, and it's an important part of a remedies course. There are also alternative versions of that traditional test, but I just want to cover the basics in this lecture. And we need to move on to the fourth important concept of remedies. And that is issues about final relief. And with final relief, we're talking about the relief that courts grant at the end of the litigation. So when the plaintiff ultimately wins, what kind of relief do they get? And there are those two types that we've already identified in this lecture. There's equitable relief and there's legal relief. Generally speaking at the final relief stage, the default is legal remedies. The default is damages. If you want equitable relief, if you want a court order requiring the defendant to build the fence, if you want a court order requiring the defendant to refrain from ever engaging in certain conduct, that request for equitable relief is exceptional. I mean, as a general proposition, the hurdle between legal relief and equitable relief in order to get over that hurdle to plaintiff must demonstrate that they have no adequate remedy at law. And there's that term again, that term, no adequate remedy at law that just stands for the proposition that money can't fix this. And upon proof of such circumstances as a general proposition courts will grant equitable relief. So that's about accessing equitable relief once you're over that hurdle. And you're in the world where courts are granting, crafting equitable relief. There's another whole field of jurisprudence. On the other side of that hurdle about limits on court's ability to craft equitable relief limits the outer limits on judicial discretion. And here are the cases where judges finding constitutional violations then need to reform prisons or reform school districts. And in trying to remedy those wrongs face, all sorts of opposition and issues about the scope of that authority. And it's not just constitutional violations. It could be statutory violations, finding a company like Facebook to be in violation of the antitrust statute. Well, if there aren't legal remedies that are adequate, the judge says, well, I need to break this company apart. What are the outer limits of the scope of that authority to decide to break it into three companies or two companies or where to divide it or how to divide it, enormous exercise of discretion. And so there's a whole interesting literature on the scope of that discretion on a much smaller scale. Just imagine a simple breach of contract. We talked earlier about the plaintiff who had that action against the boat builder. If the plaintiff brings an action and seeks equitable relief, the judge in structuring that equitable relief, well, that could take several forms. How soon does the defendant need to finish the construction of the boat? Which alternative product should the defendant be ordered to use? If something is no longer available, a judge in the exercise of her discretion is crafting that equitable order. So that's a little overview of equitable relief, but remember our default is legal relief or damages damages tends to be a more intuitive subject. So I don't want to spend time on it here. You'll cover it in contracts and towards, and in so many courses in law school. The one thing I do want to emphasize about ordinary compensatory damage awards is that the loss must be proven with reasonable certainty. That's something that I noticed some first year students failing to fully take into account. Proving damages is not a free for all. They need to be proven with reasonable certainty. The other issue about damages that I just want to flag briefly at the end of this lecture is about punitive damages. Punitive damages are limited to certain kinds of claims. Generally speaking, for example, you can't get punitive damages on a contract claim. That's one reason why people want to bring a tort claim rather than a contract claim. So you can at least threaten that we might recover punitive damages. Punitive damages are also limited to circumstances where there is intentional or malicious conduct. Again, not a free for all punitive damages constrained a pretty narrow categories. Generally speaking, you need to prove some element of intent or malice. Punitive damages are also limited in amount by the constitution, the us constitution and the clause that gets invoked is the due process clause. And there's all sorts of fun. Jurisprudence. One can study there, but the most important takeaway, or at least the most important as a practical matter in thinking about the issues that we encounter in this course regarding civil litigation is that the due process clause put some limit on the amount of punitive damages that is based upon the amount of the compensatory damages. And this is usually referred to as the single digit multiplier. And the notion is that the ratio of the punitive damage award to the compensatory damage award shouldn't exceed single digits. So a$100,000 compensatory damage award would have a nine to one ratio. If the punitive damage award on that hundred thousand dollars damage claim was a$900,000 punitive damage claim. And so the court has said, generally speaking, the ratio should be in the two or no more than the two or three, and certainly shouldn't exceed single digits. Again, there's a lot to learn about punitive damages. I'm just trying to flag here, the ones that most influence our strategic behavior and thinking about how we implement the tools of civil procedure as advocates for our clients. And to that end, another big fight in the land of punitive damages is about the scope of the relevant conduct. When we are considering a punitive damage award, how much of the defendant's conduct outside the state, or how much of the conduct that doesn't have anything to do with the plaintiff before the court should be considered in determining the amount of the punitive damage award. And as you'll learn in other courses, the story there is a ever narrowing of the scope and that's enough of an introduction of remedies for us to do our civil procedure magic. Those are the four points that we need. Those two terminology points, introduction to preliminary relief, introduction to permanent relief. We are all set. Thank you very much for listening to this episode of the civil procedure, be sure to consult your podcast list for other related episodes, or you can also find that[inaudible].