• Attorney James Noll

Damages vs. Remedies

Updated: Jul 3, 2019

Understanding Damages vs. Remedies in your legal case will help you make good decisions.

James Noll Law is an expert in criminal defense in Northern Kentucky.
Damages are very different than remedies within legal cases

Remedies are the cornerstone and basic focus in the field of law. The legal system is one set up where citizens bring a claim of injury or a “tort” and ask for redress. A tort is essentially a civil wrong, it is where one party commits a wrongful act that leads to civil legal liability (such as a breach in contract). Remedies allow the court to redress the injured parties claim and provide to them a means of compensation that will make them “whole”. The idea of making the plaintiff or injured party “whole” is a concept that has been developed and expanded upon over the years through jurisprudence. Making the plaintiff whole means to restore the plaintiff to the position they were in or would be in had not been for the defendant’s unlawful actions. An example would be Client A got hit on his bike by Defendant B’s car while walking the crosswalk. Due to the accident Client A received a broken leg and has to undergo physical therapy for 2 months. In this example, Client A would sue Defendant B for “damages” or the cost for medical expenses, new bike, and potentially even pain and suffering. Client A’s request for these damages would be their claim for what would make them “whole”, however ultimately it is up the court or the jury to make the determination of whether the amount requested would in fact restore the plaintiff to the position they were in before the tort.

The law categorizes remedies into different yet equally important categories:

· Compensatory

· Preventive

· Coercive

· Declaratory

· Restitutionary

· Punitive

· Ancillary

The most common type of remedy or damages sought are Compensatory damages. Compensatory damages are designed to compensate plaintiffs for harm they have suffered. This is usually a sum of money designed to make plaintiff as well off as he would have been had the incident or tort never happened. In contracts, it is putting the injured party back into the position they were in before the breach of contract took place. Both concepts are what would be considered as making the plaintiff whole. It is the burden of the plaintiff to show that the defendants actions caused the harm and that the suggested calculation of the damages have been accurately and reasonably determined.

Preventive remedies are remedies that don’t necessarily involve making the plaintiff whole, but rather prevent any harm from happening before it happens. This class of remedy comes in two forms, coercive and declaratory. One type of coercive remedy would be an injunction, which is a personal command from the court to litigants, ordering them to do or refrain from doing some specific thing. An example would a court ordering your neighbor from building that fence on your property line. In terms of contracts, a coercive remedy may be an order for specific performance, where the court will order a party of a contract to perform their duties as contractually promised.

Declaratory remedies are those that authoritatively resolve disputes about the parties’ rights, but they do not end in a personal command to the litigants, like a specific performance order or an injunction. Declaratory remedies essentially resolve uncertainties in cases, usually contracts, about the litigant’s rights and what they are entitled to before any harm can occur. An example would be a claim contesting one party’s rights under a will, maybe regarding property. A declaratory judgement from the court in this instance, would be an order stating that the title of the property definitively belonged to Party A instead of Party B.

Restitutionary damages are a form of damages almost identical to compensatory. It does involve restoring the plaintiff to where they were before the harm occurred, but the focus of that restoration is on how much the defendant gained at the plaintiff’s expense versus the plaintiff’s actual harm.

Punitive Damages are remedies awarded to the plaintiff that are designed to punish wrongdoers. This type of damages can be awarded in conjunction other forms of remedies such as Compensatory. The policy behind punitive damages is the concept of conduct deterrence. More often in criminal cases, but also present in some civil matters, the defendant is issued punishment for the harmed caused to the plaintiff and/or society. Requiring the defendant to make additional restitution on top of compensatory damages is a means of punishing the defendant and hopefully preventing him from committing future harm of the same type.

Ancillary remedies are damages designed to aid other remedies. These remedies essentially are providing financial relief to the plaintiff for costs that occur as a result of the litigation or ongoing litigation. These would include of course attorneys’ fees and court costs. There are other forms of ancillary remedies that could be awarded to plaintiff due to the defendant’s actions or inactions in court, otherwise known as contempt. A defendant being in contempt of court can add fees and additional remedies to the plaintiff’s damages calculation at the end of the proceedings.

Remedies are the most important aspect of our legal system. They provide us with assurance in our legal system that if we are wronged or injured, that we have a means of recourse and seeking justice, compensation, and closure. A plethora of remedies exist for varying situations and lawsuits, but there also exists some limitations. If you are ever in a position where you are harmed, or you just don’t know what your rights are with regards to a contract, property, ect… It is important that you get in contact with an experienced attorney that will help you find and seek out the remedies that you are entitled to!

Work Cited:

LAYCOCK, DOUGLAS. MODERN AMERICAN REMEDIES: Cases and Materials 2017 Case Supplement. 4th ed., WOLTERS KLUWER LAW & BUS, 2017

#criminaldefense #northernkentucky #jamesnolllaw #damages #remedies

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