Litigation - Civil - F.A.Q's

1 -  What are the legal definitions of damage and damages? Do they mean different things?

In the legal world, damage is defined as a loss or harm resulting from injury to a person, property or reputation.

Damages refers to compensation - such as a money judgment - provided to a person who has suffered a loss or harm due to the unlawful act or omission of another. The person at fault - the one who caused the loss or harm - must compensate (or pay) the injured party for his or her losses.

 2 -  I am contemplating taking legal action. What types of remedies can courts grant?

The remedy you will be able to ask for depends on the type of claim you have, the harm you have suffered or may suffer, the nature of the defendant’s conduct, and the authority of the court itself. The remedy you receive frequently depends on the relative strengths of your case and your opponent’s case, your resourcefulness and ability to get all the facts, the ability of both sides’ attorneys to spend the time and effort necessary to do the job that is required is.

The usual and standard remedy is money damages, which can consist of compensatory damages, punitive damages, nominal damages, interest, and attorney’s fees

Courts may award injunctive relief, such as a temporary restraining order, preliminary injunction, and permanent injunction to stop certain conduct. Courts also may provide certain restitutional remedies to prevent the other side’s unjust enrichment, such as replevin, ejectment, imposition of a constructive trust, and imposition of an equitable lien.

  3 -  How is arbitration, mediation, or a lawsuit started?

The first step in most controversies is to inform the other party that the controversy exists. Attorneys would refer to this as presenting a demand. In the demand, the aggrieved party tells the other party why s/he is responsible for the harm suffered. Some demand letters threaten a lawsuit. Other demand letters set forth the controversy, a proposed resolution, and an offer to submit the controversy to an arbitrator or mediator.

If informal negotiation between the parties fails to yield resolution, the aggrieved party may request that the other parties participate in either arbitration or mediation. Each party can then investigate for him/herself whether arbitration or mediation will satisfy his/her own objectives. If all parties agree, arbitration or mediation will be conducted.

The initial step in alternative dispute resolution is the selection of the arbitrator or mediator. Many professionals now offer their services as arbitrators or mediators and there are companies (such as American Arbitration Association, End Dispute, Judicial Arbitration and Mediation Service) organized specifically to assist people resolve controversies. Once the arbitrator or mediator is selected, s/he tells all parties how the matter will proceed.

A lawsuit is started by filing a complaint in a court of law. Rules of civil procedure, whether established by federal, state or local law, and strict court formalities must be followed. Even in filing the complaint, there are strict rules, such as prior presentation of a demand letter, selecting the right court, exhaustion of all potential administrative remedies, and even the type of paper used, the margins and spacing of words on the paper, and the size of type that must be used. An attorney will assist you in adhering to the proper.

  4 -  How is the value of property damage determined?

Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages (or the amount you will get for your property damage) can be set at the fair market value of the property immediately before its loss. Generally, an injured party may recover for the loss or harm - both present and prospective (in the future) - which are the natural, necessary or reasonable result of the damage.

If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property, plus the loss of its use by the owner. If the cost to repair the property turns out to be more than the fair market value of the property before the loss, the damages may be limited to the fair market value. In addition to the cost to repair or replace, plus loss of use, interest and loss of profits may also be considered when determining the total value of property damage.

With respect to punitive damages (damages awarded for the purpose of punishing the wrongdoer and preventing similar abuses in the future), the amount is often determined after an inquiry reveals the wealth of the wrong-doer. For example, punitive damages in the amount of $10,000 is typically sufficient to deter similar acts or omissions for most people - but if the wrong-doer is a multi-millionaire, a $10,000 punitive damage award may be an insufficient deterrent. An award of damages that is the result of passion or prejudice on the part of a jury - meaning that the award is not supported by the evidence or that it does not bear any correlation to the amount of actual damages suffered - can be set aside by a judge upon review.

If you are seeking recovery for property damage from an insurance company, you should seek the advice of an experienced insurance attorney. If the property damage was due to a car accident, see a car accident lawyer right away.