CIVIL PRACTICE AND PROCEDURE (Part 2) BY MELVIN PEREZ TYPES OF DAMAGES. Two types of losses result in damages: those that can be fixed with money, and those that can be fixed with action. Some courts have the ability to award money damages. Some courts have the ability to make someone do something. Some courts can give both kinds of solution. Whatever solution the court comes up with, when the court makes its decision it is called "awarding relief". Whatever kind of relief you want, lawyers lump it all together and call it "damages", because it is the easiest way to understand what the court requires in order to consider your case. Ultimately, without some form of damages for which the court can give you a remedy, your case will be dismissed. MONETARY DAMAGES. Losses that can be fixed with money are called "monetary damages" The big issue with monetary damages is usually over just how much money it will take to fix the problem. Arguments over monetary damages are common. Even with what seems like a straightforward case, people start bringing up issues like original value versus replacement cost, and whether the replacement should be priced out for a brand-new one or one that is the same age as the one that was lost. On top of that, some things are not easily put into dollars and cents. For instance, how do you put a value on a broken leg? These are legitimate issues, and the courts are used to dealing with them. It is unusual for a case to proceed without significant discussion of what the correct amount of damages should be. NON MONETARY DAMAGES. The other kind of loss is fixed with action, and is called non-monetary damages. The solution for non-monetary damages is referred to as injunctive relief or equitable relief. Here you are not asking for a sum of money, you are asking that someone do (or not do) something she or he should or should not have in the first place. Your solution is a court order called "an injunction," which forces the other side to do the specific thing that will fix the problem. Injunctive relief can be used together with monetary damages so that the court can create a complete solution to a parties' problem. In order to get equitable relief, you have to come to the court with clean hands. This means that as far as this case is concerned, you have acted in good faith and behaved ethically throughout. If you have dirty hands, the court will not award you equitable relief. EXCEPTION. In law, there is always an exception to prove the rule. The rule here is that there has to be some harm before there is a lawsuit. The exception is in situations where there is not necessary harm in the classic sense of loss, but there certainly is a problem that needs a solution. In these cases, there is another kind of solution the courts can provide, one that is intended to prevent any damage to either side before it can start. The solution is called "declaratory relief." It works by asking the court to make a decision as to what your rights and the other side's rights are in a particular situation. The court then "declares" what your rights are and issues an order that makes that declaration clear. It is not really granting relief from damages or loss, because there were not any, it is one of the few times the court acts without real damages or loss. GETTING WHERE YOU WERE. one way to ask for damages is to ask to be taken back to where you were before the conflict started. These damages are called "compensatory damages." Compensatory damages literally compensate you, or make up for, what you lost. In order to get these kinds of damages, you have to show where you actually were before everything began. You also have to show how the other side took you away from that place. Of course, that does not compensate you for the time it took to sue, or your attorney fees, or anything else, you can ask for that as part of the consequential damages you suffered as a result of the injury. You can also ask to be reimbursed for the additional, secondary losses the original injury led to. These are called "consequential damages." Lawyers say that consequential damages "flow" from the injury, or say that "but for" the injury, these secondary losses would not have happened. MINIMIZE YOUR DAMAGES. The defendant is responsible for repairing or making good the injury that he or she caused, but only the injury that he caused. You, as the injured person, have a duty to make sure you do not make the injury worse. This is called a duty to "mitigate damages" There is an old saying in law, "one who seeks equity must do equity." That means if you want the court to act fairly to you, you have to act fairly to the other side. Mitigation of damages is part of the process. A practical reason to minimize or mitigate your damages is that it is going to take quite a while to get the money back from the person who injured you. The money is coming out of your pocket first. Do not spend more than you can afford to fix the problem if at all possible. DOCUMENTING DAMAGES. When you have been injured in any way, you need to track what the injury is and what it has cost you. This is called documenting your damages. Documenting your damages is an important part of proving that you have a case. Not only does documentation show that you have suffered a loss that can be remedied by the court, but it will help provide the evidence that is needed to prove the loss and the amount of damages. TAKE NOTES. Be as polite as possible in working with everyone you encounter as a result of the injury. The more polite and reasonable you are, the more cooperation you are likely to get out of them. It is a good idea to write down the names of the people you deal with, along with the date and time and what was said, every time. Good luck.
Melvin Perez #x11781