Nailing The Bar Remedies

NAILING THE BAR
TM
HOW TO WRITE ESSAYS FOR
REMEDIES
LAW SCHOOL AND BAR EXAMS
WHAT to Say and HOW to Say It!
Tim Tyler Ph.D.

Attorney at Law
NAILING THE BAR
HOW TO WRITE ESSAYS FOR
REMEDIES
LAW SCHOOL AND BAR EXAMS
What to Say and How to Say It.
Tim Tyler, Ph.D., J.D.

Attorney at Law
Published by Practical Step Press
--www.PracticalStepPress.com--
NAILING THE BAR – How to Write Essays for Remedies Law School and Bar Exams
Copyright © 2014 by Practical Step Press. All rights reserved. No part of this publication
may be reproduced or transmitted in any form or by any means, electronic or mechanical,
including photocopy, recording or any information storage or retrieval system, without permission
in writing from the publisher. Printed in the United States of America.
ISBN 978-1-936160-19-8
ii
Forward
What to Say and How to Say It

This book is a "How To" guide of practical information needed to succeed on LAW SCHOOL
EXAMS and BAR EXAMS on Remedies.
This is a "cook book" approach focused on the mechanics and substance needed to write passing
law school essays; WHAT TO SAY and HOW TO SAY IT.
The issues and rules presented are based on common law principles and Articles 1 & 2 of the
UCC and applicable to almost all law school and Bar examination essays.
EVERYTHING you NEED to SUCCEED is provided without unnecessary baggage.
Brilliance is not needed nor even enough to succeed in law school, to pass the Bar Exam, or to be
a lawyer. Many attorneys are not brilliant, but they succeeded in law school. And there is nothing
as common as brilliant people that have failed law school. The REASON is THEY LEARNED
EVERYTHING EXCEPT the one important thing -- HOW TO PASS THE EXAMS.
This book uses a methodical, practical, step-by-step approach to create issue analysis that works. It
may seem mechanical, but it produces passing essay answers. This method is called "NAILING
THE ELEMENTS" (Chapter 9). Whether you are preparing for law school exams or Bar Exams
this simple approach will help you succeed.
This book tells you how to outline your essay answer (Chapter 2), how to spot issues (Chapter 3),
how to avoid wasting time (Chapter 4) and budgeting time on your essay (Chapter 7).
This book gives you EVERY IMPORTANT DEFINITION you need to know for exams on
Remedies (Appendix A) with EXAMPLES of good and bad essay approaches, PRACTICE
QUESTIONS and SAMPLE ANSWERS with EXPLANATIONS.
This book deliberately and necessarily omits discussion of some intricate details of the law that are
explained in detail in Nailing the Bar’s “Simple Outlines”. But EVERYTHING YOU REALLY
NEED TO KNOW to write essays on Remedies is in this ONE book.
iii
Table of Contents
CHAPTER 1: THE IRAC APPROACH ..................................................................................................................... 1
CHAPTER 2: SPOT AND OUTLINE THE ISSUES!................................................................................................ 2
CHAPTER 3: ISSUE SPOTTING ............................................................................................................................... 5
CHAPTER 4: AVOID NON-ISSUES, RED HERRINGS AND SPLITS.................................................................. 8
CHAPTER 5: ORGANIZING THE ANSWER .......................................................................................................... 9
CHAPTER 6: ISSUE STATEMENT STRUCTURE................................................................................................ 10
CHAPTER 7: BUDGETING TIME........................................................................................................................... 11
CHAPTER 8: PREFACE RULES WITH CITATION OF AUTHORITY ............................................................ 13
CHAPTER 9: NAILING THE ELEMENTS – THE HEART OF THE ESSAY ................................................... 14
CHAPTER 10: DON'T GIVE "CONCLUSIONARY" ANALYSIS....................................................................... 18
CHAPTER 11: DON'T "RESTATE FACTS".......................................................................................................... 19
CHAPTER 12: AVOID “PADDLING” ..................................................................................................................... 21
CHAPTER 13: TEST TAKING MECHANICS........................................................................................................ 22
CHAPTER 14: ESSAY ANSWER FORMATS – WHAT TO SAY AND HOW TO SAY IT............................... 24
FOUR PLOYS TO SAVE YOU ON AN EXAM: .............................................................................................................. 25
CHAPTER 15: ANSWERING REMEDIES QUESTIONS ..................................................................................... 26
Practice Question 15-1 ......................................................................................................................................... 37
CHAPTER 16: CONCLUSION.................................................................................................................................. 42
APPENDIX A: RULES AND DEFINITIONS .......................................................................................................... 43
APPENDIX B: SAMPLE ANSWERS ....................................................................................................................... 47

Sample Answer 15-1: Specific Performance, Consequential Damages, Substantial Performance ...................... 47
Sample Answer 15-2: TRO Appeal, Overbroad Injunctions, Unclean Hands, Laches ........................................ 50
Sample Answer 15-3: Unclean Hands, Estoppel, Laches, Constructive Trust, Equitable Lien ........................... 53
Sample Answer 15-4: Injunction, Collateral Attack, Defenses to Contempt ....................................................... 55
Sample Answer 15-5: Implied Contracts, Lodestar, Constructive Trust, Equitable Lien .................................... 57
INDEX .......................................................................................................................................................................... 59
iv
Chapter 1: The IRAC Approach
Chapter 1: The IRAC Approach

This book stresses the IRAC approach. That stands for ISSUE-RULE-ANALYSIS-
CONCLUSION. Alternatively, the “analysis” can be called “application” and in many ways that
makes more sense. The “application” portion of the essay consists of applying the “GIVEN
FACTS” (in the “fact pattern”) to prove the LEGAL ELEMENTS of the RULE.
Although most law schools talk about the IRAC approach, they often do not actually teach it or
even require it. You may find that your law school emphasizes the IRAC approach for the first
year students only. After that the law school emphasis on IRAC often fades until it is seldom
mentioned.
While your law school professor may not demand an IRAC approach, the Bar is not so forgiving.
The Bar grader will expect to see an IRAC approach. And the IRAC approach remains the
simplest way for you to structure and present a clear and correct answer to any essay question.
It is so easy to get lost in your study of the historical development of the law that both your
professors and you forget about IRAC. This declining emphasis on the IRAC format in the latter
years of law school is a major reason students that succeed in those law school classes often fail
the Bar Exam later.
While your law school professor may not demand an IRAC approach, the Bar examiners are not
so forgiving. The Bar grader will expect to see an IRAC approach. And the IRAC approach
remains the simplest and best way for you to present a clear and correct answer to any essay
question.
The IRAC approach advocated and stressed in this book has the following components:
1) A clearly identified ISSUE statement phrased as a question.

2) An indication of the AUTHORITY that determines the rule of law (or equity).
3) The RULE of law (or equity) with its required elements.
4) ANALYSIS (or “application” if you prefer) proving each and every element of the given
rule with one or more FACTS given in the question statement (the “fact pattern”).
5) A CONCLUSION as to the determination of the issue.
Viewed from a reverse perspective, the logic of the IRAC approach is to decide an issue by
analysis of facts as follows:
1) Analysis (or application) of FACTS proves each and every necessary ELEMENT required
by law (or equity),
2) Proof of the necessary ELEMENTS of law (or equity) proves the RULE, and
3) Proof of the legal RULE of law (or equity) determines the legal ISSUE.
1
Chapter 2: Spot and OUTLINE the ISSUES!

The first critical step in answering any essay question is to read the question, focus on the CALL
of the question, and note and COUNT THE ISSUES to be discussed.
Read some of the question, skip to the CALL, and then go back to read the question again
from the beginning. Do not read all of the facts first and the CALL last because you will
anticipate the CALL, leap to a conclusion about it, and have your brain twisted before you even
get to it. Often students never read the CALL at all because they get lost in the facts, assume the
question is about a different issue, make their mind up too soon and fail to read the CALL at all.
FIRST read SOME of the facts, about ONE-THIRD of the fact pattern;
SECOND jump to the bottom of the question and determine the CALL;
THEN go back to the beginning and reread ALL of the facts.
As you read the question, draw lines to the margin and place symbols there designating the issues
that might need to be discussed. For example, if a party delays a considerable period of time
before seeking relief you might draw a line to the margin and note, "Laches?" Double-check the
facts to make sure you are not missing an issue. Especially don't get so busy looking for hidden
issues that you miss one that is big and obvious.
Follow the CALL. On a one-hour question you should usually spend between 10 and 15 minutes
deciding what to discuss and the order of discussion. But if the call of the question gives you a
STRUCTURE for discussion, your answer MUST reflect that structure. DO NOT DISCUSS
issues that the CALL specifically omits. Be responsive to the CALL!
Outline the Issues. Regardless of the area of law involved, always make a list of the issues you
intend to discuss, in the order you will discuss them. Make it "skeletal" in your own "shorthand,"
and don't waste time writing out the issue statements in full. Jot down a few facts you don't want
to forget, but don't write out every fact because that WASTES TIME.
Consider the Issues the Reader Wants Discussed. Spend some time THINKING about what
issues the Reader (professor, Bar Reader) wants you to discuss! If there are some odd facts
presented, THINK about the reason for that. Sometimes questions are written with extraneous
facts, but usually the given facts are there to prompt you into discussing some legal issue you have
studied. If the Reader intends for you to discuss an issue SOME FACTS WILL BE GIVEN. Don’t
discuss issues that are totally unsupported by the given facts; those are “non-issues”. If you think
some issue should be mentioned, but there are not enough facts given to discuss the issue in detail,
just mention it in passing without wasting time on it.
Rewrite the outline as necessary, eliminating issues, or rearranging issues. Try to list the issues in
the same order they arise in the fact pattern.
COUNT the issues! Then read the CALL again and make sure your outline addresses the call.
Plan on spending about 15 minutes outlining and 40 minutes writing. If you have too many issues
to discuss properly delete some of the less obvious ones. And reserve a few minutes at the end of
the hour to double check your answer.
2
Chapter 2: Spot and Outline the Issues!
Example: The example below shows a question that raises REMEDIES issues. It is marked with
notations about possible issues raised. The CALL of the question does not define the issues
because it is simply says, "Discuss."
Following this mark-up on the question itself, create a skeletal outline as shown below:
EXAMPLE QUESTION OUTLINE
Suckers v. Frank
1. Contract remedy? Implied in fact contract to give easement? Implied warranty? Frank
knowingly acceptance benefits - $5,000. Specific performance to give easement?
2. Contract voidable for unilateral mistake? Rescission and restitution?
3. Intentional tort of deceit? Duty of good faith and fair dealing to reveal? "planned to gouge"
Punitive damages?
4. Estoppel: Representation? Concealment? Reasonable reliance? Injustice?
5. Equitable remedy? Unjust enrichment? "$85,000" property for "$3,000".
6. Constructive trust/equitable lien?
Your outline should not be much more than is shown here. Spend more time THINKING and less
time WRITING down facts. Those facts are already in the fact pattern in front of you so what
good does it do to copy them to your outline? All you have to do is read them and quote them in
your answer.
But the ISSUES are NOT on the question sheet sitting in front of you. They are an important
missing element. The question sheet doesn't list the issues (usually). So, on your outline you
should list the ISSUES in the order you will discuss them, and get the facts from the question
sheet when you write your answer.
The point of the outline is to organize your answer, not waste your time. It is where you list the
order in which issues will be discussed. It indicates the amount of time to spend on each issue.
Only cite facts as a reminder to yourself.
3
Remedy Issues. Remedy questions almost always involve whether a party can (or must) plead for
an equitable remedy or not. In almost every case the first ISSUE is whether or not the party has
an adequate legal remedy or not, and if not, why not.
The most common issue tested is whether the party can obtain injunctive relief or specific
performance because legal remedies (i.e. award of a money judgment) are an inadequate remedy.
However, some other issues that might arise are implied-in-law contracts, estoppel, constructive
trusts and equitable liens.
Common Remedies Issues –
Adequacy of legal remedies

Injunctive Relief
Specific Performance
Constructive Trusts
Equitable Liens
Unjust Enrichment
Public Interest
Estoppel
4
Chapter 3: Issue Spotting

Since you lose points for every “required” issue you fail to discuss, it is CRITICAL TO SPOT all
of the “required” issues. BUT DON'T waste time discussing issues that do not really exist. This is
easier said than done and introduces a certain level of sadism peculiar to law school.
The Reader (the person who will grade your essay) always expects you to discuss certain required
issues. But Readers (and question writers) fall into two basic schools. The first, rational school,
simply states the issues to be discussed in certain terms. The second, less rational and often
sadistic school of Readers uses only hints about the intended issues. Sometimes the "hints" are
obvious. Other times they are so subtle the student has to be a psychic. At this extreme this
approach is called HIDING THE BALL, and it is the stuff of law school horror stories.
The HIDE THE BALL question utilizes words and fact patterns that only vaguely suggest issues.
This is like a code language known only to law school professors. The following is a list of "code"
words and facts that are often used to indicate intended issues.
Issue Spotting Hints
REMEDIES:
Issue Area and Coded Hint: Intended Issue:
CONTRACTS
1. "profit": Consequential damages? Certain in amount?
2. Failure to minimize losses: Unavoidable losses?
3. Goods: Cover? Non-conforming? Time to cure?
4. Previous shipments: Course of dealing? Implied terms? Gap fillers?
5. Partial performance before breach: Restitution?
6. Commencement of performance: Reasonable expectation of compensation?
7. Unconscious party helped: Volunteer plaintiff? Implied-in-law contract?
8. Unjust enrichment: Did defendant knowingly accept benefit?
Implied in fact contract?
9. Violation of the Statute of Frauds: Equitable restitution?
10. Illegal contracts: In pare delicto? Rescission and reimbursement?
11. Lack of capacity/minors: Contract for necessities? Ratification?
12. Mutual mistake: Rescission and reimbursement?
SPECIFIC PERFORMANCE
13. Antiques, rare paintings: Unique so specific performance per UCC?
14. Land: Unique so specific performance appropriate?
15. Services of actors/Sports figures: Unique but no specific performance because of
13th Amendment?
16. One sided contract: Sufficient "mutuality" for specific performance?
17. Complex transactions: Feasible for court to supervise?
TORTS
18. Intentional torts: Punitive damages appropriate?
19. Indigent tortfeasor: Basis for injunction because legal damages
would never be paid by defendant or collectable by
plaintiff?
5
20. Determined tortfeasor: Basis for injunction because legal damages

inadequate to deter further wrongs?
21. Nuisance and repeated trespass: Basis for injunction because otherwise repeated
legal actions would be necessary?
22. Lost profits caused by negligence: Privity between parties? Foreseeable result?
23. Keepsakes, trophies, mementos: Objective sentimental value? Repair costs?
RECOVERY OF TITLE
24. Title obtained by false pretenses: Equitable replevin to recover title?
25. Title transferred by tortfeasor: Is current party good faith purchaser for value?
26. Property taken by false pretenses: Constructive trust? Equitable lien?
27. Improvements to another’s property: Equitable lien?
ENCROACHMENT, EJECTMENT, ZONING

28. "Knew": Did defendant knowingly act to encroach?
ESTOPPEL
29. Party to be bound is silent while Did silence imply a representation of
movant acts to own detriment: fact? Implied in fact contract?
INJUNCTIONS
30. Immediate needs: TRO and preliminary injunction?
31. Violence, stalking, threats: TRO?
32. Restraint on speech: TRO appealable?
33. Defamation, trade slander: Inadequacy of legal remedies?
34. Removal of person/property: Legal remedy of Unlawful Detainer inadequate?
35. Complex transactions: Feasible for court to supervise?
36. Ecology, health, safety: Balance of public interest?
37. Poor people: Balance of interests?
38. Trivial claims: Balance of interests? Likelihood of success?
39. Political issues: Public interest? Likelihood of success?
EQUITABLE DEFENSES
40. Illegal/wrongful acts by movant: Defense of unclean hands?
41. Delay, passage of time: Defense of laches? Resulting prejudice?
42. Subsequent transfer of title: Bone fide purchaser for value without notice?
43. "without knowing": Bone fide purchaser for value without notice?
44. Commingled funds: Defense to claim of constructive trust?
DEFENSES TO CONTEMPT ORDER

45. "Unknowingly": Lack of notice? Court lack personal jurisdiction?
No willful violation?
46. "Next day": Lack of time to appeal order?
47. Vague terms of order: Impermissibly vague court order?
ATTORNEY FEES
48. Fee claims: American rule? English rule? Loadstar?
49. Matter of public interest: Private Attorney General rule?
50. Civil rights claims: Statutory fee provisions?
51. Specific federal statutes: Statutory fee provisions?
6
ISSUE SPOTTING EXAMPLE:

.
Example:. Art agreed to sell Coll a painting by Picasso for $1 million. Then Art changed
his mind and sold the Picasso to Bob for $2 million. Bob had no idea that Art had agreed
to sell the painting to Coll. What are Coll's rights and remedies?
Issues: 1) What law applies? [The UCC.]

2) Can Coll "cover"? [No, because this is a unique good.]
3) Can Coll get specific performance as a legal remedy provided by the
UCC if Art no longer owns the painting? [No.]
4) Can Bob raise the defense he was a bone fide purchaser for value without
notice? [Yes.]
5) Can Coll demand $1 million from Art as the excess of "market" price ($2
million) over contract price? [Probably.]
6) Can Coll demand $1 million from Art to prevent "unjust enrichment"? [Probably
not. Is the breach "unjust"?]
7
Chapter 4: Avoid Non-Issues, Red Herrings and Splits

It is almost as disastrous to waste time discussing a non-issue as it is to fail to discuss an intended
issue. It wastes time and irritates the Reader. Remember, you usually get ZERO POINTS for
discussing any issue that is not on the Grading Key. The grader often does not have the authority
to give you points for your imagination and inventiveness.
Also remember that while you discuss the non-issue, everyone around you is discussing the
intended issues. They are making points and you are wasting time.
How to recognize non-issues. A non-issue is an “issue” you see, but it is not on the Grading Key.
For every issue the grader wants you to discuss there will be specific facts intended to be “signs”
or “hints”. If you see "really subtle" issues that "most people" will not recognize, and there are no
supporting facts to prove the issue one way or the other it is a non-issue.
Hints. If the grader does not want you to discuss an issue, they may add HINTING WORDS to
show that issue is irrelevant.
Example: If the question says a defendant "has no assets", don't waste time discussing the
legal remedies because any judgment would be worthless anyway. The point of these
"hinting words" is to prod you to discuss the equitable remedies.
The CALL. Another way the grader will direct you is by the CALL OF THE QUESTION. If the
CALL asks for discussion of specific issues, do not waste time discussing other issues that might
have been raised, but were not.
Red Herrings. Although the grader will give you hints about the issues you are intended to
discuss, she may also deliberately throw out a few RED HERRINGS to mislead the careless. A
RED HERRING is a fact that hints at a totally different AREA OF LAW from the CALL of the
question. The purpose of the Red Herring is to test your ability to focus on the CALL of the
question without being distracted to irrelevant issues.
Example of a Red Herring. Suppose the question states:
"Art agreed to sell Coll a painting by Picasso for $1 million. Then Art changed his mind
and sold the Picasso to Bob for $2 million. Bob had no idea that Art had agreed to sell the
painting to Coll. Coll comes to you seeking compensation or the painting. What defense
might Bob raise?
Here the call of the question is "Bob's possible defense." The fact that Coll is seeking
compensation and has a cause of action against Art is irrelevant because it is not asked about in the
call of the question. Since the question doesn't ask about it, don't talk about it.
Avoid Detailed Split Discussions Unless Called For. A split is a conflict of rules. Some law
school professors obsess on them, and some law students get obsessed about learning all of their
intricate little nuances. Get a life. This is a waste of time and very distracting. If your professor
dotes on a split of law, then discuss that split in detail. Otherwise do not spend a lot of time on it.
8
Chapter 5: Organizing the Answer
Chapter 5: Organizing the Answer

ORGANIZE the essay answer based on the CALL of the question and the AREA of law.
Organized by CALL. If the CALL indicates the organization of the answer, you must
STRUCTURE your answer that way.
For example, if the question asks,
"Discuss:
a. Did the Court have equitable jurisdiction?
b. Was a bond required for the injunction?
c. Did the defendant receive proper notice?"
Then, this is the exact STRUCTURE for your answer. Present your ISSUES within this structural
format. These headings are not necessarily the “issues”; they are a framework for the answer.
Organization of a REMEDIES Answer. If a REMEDIES question does not otherwise specify a

structure, the answer should be structured separately for each PLAINTIFF v. DEFENDANT
following considering the possible remedies in this order:
PLAINTIFF v. DEFENDANT
1. Legal cause of action? Does the plaintiff have a cause of action based on either a valid,
enforceable contract (including an implied-in-fact contract perhaps) or a tort cause of
action? If not, the only remedy at equity.
2. Adequate legal remedy? Would award of a money judgment be an adequate remedy?
Is the plaintiff seeking possession and/or title to unique property? Is the plaintiff at risk of
continued deprivation of fundamental rights? Is an equitable remedy necessary?
3. Implied-in-law contract? Did parties act to bestow benefits on the other parties with a
reasonable belief they would be compensated but have no legal right to compensation?
4. Promissory estoppel? If no implied-in-law contract, did a party act in reasonable
reliance on a promise from the other party (a gift promise)?
5. Detrimental reliance? If no implied-in-law contract, and no “promise”, did parties
deliberately act or fail to act for the purpose of causing the other parties to rely on that
behavior to their detriment?
6. Unjust result otherwise? Is equitable restitution necessary to prevent unjust enrichment
or unjust detriment?
7. Injunctive relief? Is injunctive relief necessary to prevent injustice? TRO? Preliminary
injunction? Permanent injunction?
9
Chapter 6: Issue Statement Structure

Issues Structured by Call. If the call of the question indicates the structure of the issue
statements, follow that structure EXACTLY because the Grading Key will be in that precise form.
For example, if the question asks,
"Discuss:
a. Did the Court have equitable jurisdiction?
b. Was a bond required for the injunction?
c. Did the defendant receive proper notice?"
Then, your answer should expressly reflect this structure. These are not always the exact “issues”
for discussion but this is the structure within which you should present and discuss the issues.
You should always put an ARABIC number in the left margin for each issue statement to match
your answer with your outline. UNDERLINE your “issue” statement and end it with a question
mark (?). Consider putting the main “legal term” in UPPER CASE letters.
Don’t use Roman numerals or letters. They waste your time and you can’t easily match them
against your outline or use them to budget your time.
Match your issue numbers to your outline. The numbers on the issues should match the
numbers on your outline, and the numbers help you budget time.
Phrase the issue for an EASY ANSWER. The issue should be a disputed (or determinative)
legal issue that will be determined by a single rule of law. Don’t combine issues. Set up your issue
as a "straw man" so that you can easily "knock it down" by identifying the elements, showing the
facts support the elements, and thereby go on to consider other issues. The issue should usually be
something you can answer "Yes!" or "No!" Avoid phrasing an issue in a manner that forces you to
a conclusion that necessarily precludes discussion of other necessary issues.
Remedies Issues. The first issue is whether legal remedies are available and adequate. Remedy
issues in a contract question are significantly different from remedy issues in a tort question. And
if there are no contract or tort causes of action it is purely an “equity” type of question.
REMEDIES Issue Examples:

1) Can the plaintiff recover LOST PROFITS?
2) Can SPECIFIC PERFORMANCE be obtained?
3) Can builder claim IMPLIED-IN-FACT CONTRACT?
4) Does the Court have EQUITABLE JURISDICTION?
5) Can plaintiff plead EQUITABLE TRUST of the house?
6) Can plaintiff plead for an EQUITABLE LIEN on the farm?
7) Can defendant raise the defense of LACHES?
10
Chapter 7: Budgeting Time
Chapter 7: Budgeting Time

Doing a proper essay is like doing comedy. Timing is as important as the material.
IT IS ABSOLUTELY ESSENTIAL to keep on schedule while writing essays. You must

establish and stick to a time schedule. Do not go overtime on one essay thinking you will catch up
later on another -- you won't.
YOU MUST HAVE A WATCH OR CLOCK with you. Set the watch or clock to the hour (e.g.
9:00 a.m.) When the proctor says, "You may begin," you start that watch or clock at the starting
hour.
Do not depend on the clock on the wall when taking an exam because it will not be set to the hour
at the beginning of the test, it may not be easily visible, and it might stop working. One time I was
taking an exam and the clock fell off the wall and smashed on the floor!
The key to keeping your essay on schedule is to number the issues on your outline, COUNT
THE ISSUES and MARK YOUR OUTLINE with the time each issue should be finished. Every
time you finish an issue look at the clock to see how you are doing time-wise.
RESERVE A FEW MINUTES at the end of each essay to underline issue statements and key
words and to check for omissions. Therefore, if you spend 15 minutes outlining, and save 3
minutes at the end, you really have only 42 minutes to write.
Example. Suppose it takes 15 minutes to read the question and create the outline that was
created above in Chapter 2. There are 45 minutes left and 6 issues to write about. If you
reserve 3 minutes to underline and check your work at the end of your writing, you have to
write the 6 issues in 42 minutes. This gives you 7 minutes to write about each issue. If you
use 7 minutes per issue, you will finish the issues in 42 minutes with 3 minutes to spare.
FOLLOW THE PLAN -- MARK THE START/FINISH TIMES for each issue on the outline
by adding 6 minutes to the outline. Suppose the question shown in Chapter 2 is the first essay of
the morning, at 9:00 a.m. Marking the times for each issue on the outline, giving 6 or 7 minutes
for each, produces the following schedule:
QUESTION OUTLINE WITH TIME SCHEDULE
Suckers v. Frank
Start
[9:15] 1. Contract: Implied in fact contract? Implied warranty? Frank knowingly acceptance
benefits -- $5,000. Specific performance to give easement?
[9:22] 2. Contract: Mistake -- rescission and reimbursement? quantum meruit?
[9:29] 3. Intentional Tort: Deceit? duty of good faith and fair dealing to reveal? "planned to
gouge" Punitive damages?
[9:36] 4. Estoppel: Representation? Concealment? Reasonable reliance? Injustice?
[9:43] 5. Equity: Unjust enrichment? "$85,000" property for "$3,000"
[9:50] 6. Equitable remedy? Constructive trust/equitable lien?
[9:57] Finish last issue with 3 minutes for review.
11
STICK TO SCHEDULE. It does absolutely no good to develop a time schedule if it is not

followed.
Check the schedule against the clock as you finish each issue of the essay. If you are behind
schedule, shorten the analysis of the next issues to get back on schedule. If you are ahead of
schedule, give more extensive rule statements, analysis and citation of facts in the remaining
issues to use the extra time you have.
PRACTICE CHECKING THE CLOCK at the end of each issue in practice exams. This has to
be practiced until it becomes a regular habit.
MODIFY to meet your personal needs AFTER you are proficient in this approach. You can relax
your approach and may be able to eliminate the timing from the outline altogether eventually. But
start out with a timed approach first.
12
Chapter 8: Preface Rules with Citation of Authority
Chapter 8: Preface Rules with Citation of Authority

After clearly stating the ISSUE to be discussed start your essay answer by citing the
AUTHORITY upon which your answer will be based. Use the word "UNDER" as an introductory
phrase as you cite the authority and rule.
In the Bar Examination you must determine THE PROPER AREA OF LAW that applies to the
question and TELL THE GRADER because your proper determination of the applicable law is an
essential part of the examination.
By stating the applicable law upon which your answer is based, your answer will be more
professional and affirm to both yourself and the grader that you know what you are doing. Citing
the correct case law makes your answer sound good, even if you never read or understood the
case. Stating the legal authority helps you get your head straight so you don't use the wrong
terminology in your answer.
If you cannot think of any better authority to cite, simply say, "Under the law of REMEDIES…" or
perhaps, "Under the theory of IMPLIED-IN-LAW CONTRACT… "
Rules for REMEDIES are based on common law principals and the UCC. This is NOT tested on
the MBE.
Your answers should reference the authorities you are using as follows --
Remedies:
"Under the Law of Remedies… "
"Under the UCC… "
"Under Tort Law rules… "
"Under the Doctrine of Laches… "
"Under the Doctrine of Estoppel…"
"Under the BONE FIDE PURCHASER FOR VALUE defense…"
13
Chapter 9: Nailing the Elements –

The HEART of the Essay
The heart of every law school or Bar essay is the ANALYSIS, and the key to analysis is
NAILING THE ELEMENTS. This means to
1) State an ISSUE raised or suggested by the given facts,

2) Cite LEGAL AUTHORITY for a rule,
3) State the LEGAL RULE and its highlight its ELEMENTS, and then
4) PROVE that HERE EACH and EVERY ELEMENT of the rule can be proven
BECAUSE a relevant SUPPORTING FACT exists in the fact pattern.
A heart of NAILING THE ELEMENTS consists of 2 parts:
1) State the RULE with clearly stated ELEMENTS to be proven, and

2) NAIL (prove) each ELEMENT of the rule in the analysis with a QUOTED FACT.
NAILING THE ELEMENTS is the easiest thing to do, and it produces the greatest benefit. Yet
some students simply refuse to do it. Those students are usually referred to by other students in the
past tense.
Underlining. You MUST UNDERLINE only two things in an actual exam answer: The
PARTIES (when there are parties to be stated) and the ISSUES:
Paul v. Don
1. Does Paul have a cause of action for BREACH OF CONTRACT?
Other than that, no other underlining is necessary on actual exam answers, and too much
underlining is very distracting to the Reader. HOWEVER, as you PRACTICE for exams, it is a
very good idea to underline the elements that need to be proven in the RULE statement and
underline them again as you prove them in the ANALYSIS so you will focus on the elements and
learn to prove each and every required element without accidentally skipping any.
There is nothing wrong with underlining ELEMENTS in actual exam answers, but don’t underline
any thing else besides the PARTIES the ISSUES and the ELEMENTS. Anything else underlined
will just distract the Reader and reduce your scores.
Follow this order:
1) Cite the AUTHORITY. This is mandatory on a Bar Exam and it is a good habit to start in law
school. Show the grader that you know the area of law that applies. This is a good approach to
citing a CASE, a STATUTORY SCHEME, a LEGAL CONCEPT or an EQUITABLE
CONCEPT. Tell the grader the LEGAL (or equitable) AUTHORITY your answer is based upon.
To do this, start your answer with the word "Under…" and cite the authority for your rule of law
(or equity) as discussed in the prior chapter.
14
Chapter 9: Nailing the Elements -- The HEART of the Essay
2) State the RULE. Generally you should state together all rules that apply to the issue. As
explained above, underline the elements that must be proven in practice answers to help you focus
on the elements you must prove and to prevent you from failing to prove all the elements that need
to be proven. If you underline the elements in your RULE and then underline them again in your
ANALYSIS you are far less likely to skip one.
If you underline ELEMENTS of proof in the RULE and ANALYSIS on actual exams, it won’t
hurt you. But in practicing for exams it is a very beneficial training tool.
The grader is looking for the RULE to follow the ISSUE. You must put the rule where the grader
expects to find it. Follow the IRAC approach -- put the RULE right after the ISSUE.
Examples of Legal Rules with Elements Underlined:
1) Under the law of remedies EQUITABLE JURISDICTION requires a showing of

inadequate legal remedy, threat of irreparable harm, a favorable balance of interests or
public interest and likelihood of success in the underlying action.
2) Under the doctrine of ESTOPPEL an agreement may be enforced or a defense denied if the
person to be estopped 1) made express or implied representations or concealed material
facts, 2) with an intent to cause reliance by the other party, 3) and their behavior caused
reasonable reliance, and 4) an injustice will result if the court allows assertion of a
position contrary to the party's prior representations.
3) NAIL EACH ELEMENT OF THE RULE WITH A FACT. This is the single MOST
COMMON REASON PEOPLE FAIL THE BAR.
Remember, NAIL OR FAIL!
You must show that each ELEMENT is PROVEN BECAUSE there is a FACT provided to prove
it. "Nail" each element with a fact from the question by using the following form:
"Here [the ELEMENT of law is PROVEN] BECAUSE "[some FACT is given]".
Try to Use One "Because" for Each Element. Use the word "because" and give a "quoted fact"
for each and every element in the rule. If the rule has four elements, there should be four
"because"s and four "quoted facts".
You can combine two or more elements into a statement and otherwise modify this approach. But
this general approach MUST be used.
If you follow this "Here … because … "quote"" approach, you will AUTOMATICALLY focus on
each element of your rule and to the facts that prove that element.
4) Give a SIMPLE CONCLUSION. This is the least common problem area. All students are
too quick to cite conclusions. The simplest approach is to state, "Therefore…"
About the only error one can make in citing a conclusion is to be WIMPY or WISHY-WASHY.
Do NOT give a conclusion like this:
15
WRONG: "Maybe the plaintiff could obtain specific performance because Picasso
paintings are very hard to find and they are all different."
Instead, just say,
RIGHT: "Therefore, the plaintiff would be able to obtain specific performance."
If necessary, give a “conditional” conclusion:
RIGHT: " Therefore, the plaintiff would be able to obtain specific performance unless if
the Court finds a money judgment to be an adequate remedy."
Skeleton of NAILING Approach Structure.
Your essay should have this skeletal form:
Explanation : Written Structure :

[Numbered, underlined issue statement] 1. [ISSUE stated as an easy question]?
[Cite Authority] Under [Authority],
[State Rule with each Element.] [What you are proving (promissory estoppel,
etc.) is … Element 1, Element 2, etc.]
[Address the first Element by saying "Here…" Here [Element 1, underlined] is proven/shown
and cite the first Element to be proven, to be true because ["Fact 1", Quoted].
“because” and quote a given fact that proves
that element (or perhaps disproves it).
[Repeat for each additional Element, but vary And [Element 2, underlined] is proven/shown to
the introductory word. Don’t say be true because ["Fact 2", Quoted].
“Here…Here…Here…]
[Give a terse and definite Conclusion] Therefore, [ISSUE is true/false.].
---o0o---
16
Chapter 9: Nailing the Elements -- The HEART of the Essay
Example of Proper Analysis:
Tom promised to sell Dick a painting by Picasso for $1 million, but then Tom changed his mind.
What is Dick's remedy?
Analyze as follows:
"1. Can Dick obtain the painting by SPECIFIC PERFORMANCE?

"Under the UCC a Court has discretion to grant a buyer of unique goods title and
possession by SPECIFIC PERFORMANCE. Goods are movable property identifiable to
the contract at the time of execution.
Here the agreement involved goods because the painting was movable and identifiable to
the contract at the time of execution. And Dick is a buyer because Tom was going to "sell"
the painting. And the goods are unique because all paintings by Picasso are rare and
different.
Therefore, Dick may obtain the painting by specific performance."
17
Chapter 10: Don't Give "Conclusionary" Analysis

Law students are often told their answer is "conclusionary" but that term is seldom explained.
Sometimes the student is told to "use the facts." That also is seldom explained.
A "conclusionary" analysis is one that jumps to a conclusion regarding an issue without any
analysis of the facts needed to prove the elements of the legal rule. The conclusion is unsupported
by evidence.
The identifying characteristic of a conclusionary analysis is that the word "because" never
appears BECAUSE no FACTS are referred to.
Example: Suppose the question says,
"Loony, a disgruntled and irrational former client, stands outside Larry the lawyer's office
every day holding a sign that says, "Don't Use Larry the Crooked Lawyer". There is
absolutely no truth to Loony's accusation. Loony lives on a disability pension and has no
assets. What will Larry have to show to get a restraining order?"
A CONCLUSIONARY answer is --
"1. ISSUE -- Can Larry show the Court has EQUITABLE JURISDICTION?
Under the law of remedies EQUITABLE JURISDICTION requires a showing of
Here Larry has inadequate legal remedies and he is going to suffer irreparable harm.
While there is a public interest in protecting free speech, the balance of interests favors
Larry because it is likely he would succeed if he brought a defamation action.
Therefore, Larry can establish equitable jurisdiction."
The conclusionary analysis jumps to a conclusion that the issue is proven by reference to the rule
without stating any supporting facts. Facts are "alluded to" but not stated.
The “elements” to be proven are underlined above in both the RULE and the ANALYSIS so you
can see the analysis does cite the elements that need to be proven. But there are NO QUOTED
FACTS given in the analysis.
Here there is absolutely no reference to the facts, just a claim that facts exist. There is no
explanation why Larry has inadequate legal remedies or why he is threatened by harm. Nothing
explains why he would be able to succeed in the underlying action. The word "because" is
missing.
In an essay there should be one "because" and at least one reference to the facts for every element
of every rule. This rule can be relaxed, but if there are few or no "because"s at all, and few
references to the facts, the essay will become conclusionary and totally unacceptable.
18
Chapter 11: Don't "Restate Facts”
Chapter 11: Don't "Restate Facts"

After law students are admonished to "use the facts" they are then chastised for "restating the
facts". How can you "use the facts" without "restating the facts"? What does this mean?
The bad habit of "restating the facts" simply means that the student simply repeats the facts like a
parrot without providing any analysis or explanation relating those facts to the elements of the rule
that needs to be proven.
The identifying characteristic of an answer that simply restates facts is that the word
"because" never appears BECAUSE no ELEMENTS are referred to.
An analysis which "simply restates facts" jumps to a conclusion that the issue is proven by
reference to the facts without reference to the legal elements of the rule.
An answer with UNNECESSARY RESTATING OF FACTS would be --
Here Loony is an irrational and disgruntled "former client." He has no assets, and there is
absolutely no truth to his accusations. He is saying that Larry is "crooked" and he is
standing outside Larry's office where, no doubt, potential clients will see him. This would
be defamation or "trade slander." Defamation is not protected speech. If Larry cannot stop
Loony he might go out of business.
The problem with this answer is that it jumps to a conclusion by simply repeating all the facts, but
it does not state any particular ELEMENT of law relevant to any particular fact. Elements are
"hinted at" but never actually stated.
Here you might argue there is some reference to the elements because the student says that
Loony's statement is "defamation" and that Larry might "go out of business." But these are not
elements of the rule. They are facts and there is no reference to the specific elements in the rule
that make those facts important. The explanation that these facts are important because they prove
Larry is likely to succeed in a defamation action but would suffer irreparable harm for which there
is no adequate legal remedy is absent from the answer.
If an answer refers to a lot of "facts" but never uses the word "because" then it is unacceptable.
19
The above examples illustrate how underlining elements and quoting facts in your analysis will
automatically cause you to say “because” a lot, and your analysis (and scores) will automatically
increase. After this becomes an ingrained habit, you can stop underlining if you want. But while
you are learning proper technique underlining elements in both the RULE and the ANALYSIS is a
good training approach.
You can GRADE YOUR OWN ANSWERS very easily.
• Simply do a “word search” on the word because, see how many times you say it. If you
don’t say it much, you are going to fail your exams.
• The number of underlined elements in the RULE should equal the number of underlined
elements in the ANALYSIS. If the numbers don’t match, you are failing to prove elements.
• Count your quote marks. If you are not quoting facts, you might not be citing facts. And
that is a bad fact.
Students that fail to prove the elements in exams don’t become lawyers, and lawyers that fail to
prove the elements in the courtroom don’t win trials.
The Yellow Brick Road. The simple, mechanical way to improve essay analysis is to remember
what Dorothy said when she went down the Yellow Brick Road in the Wizard of Oz --
"BECAUSE, BECAUSE, BECAUSE, BECAUSE, BECAUSE."
If you put one "because" in your analysis for each element in your rule, it will simply force you to
cite BOTH FACTS AND ELEMENTS. This approach automatically, methodically, mechanically
and simply forces you to write a better essay. It works for law school, it works for the Bar exams,
and it works in the courtroom.
20
Chapter 12: Avoid “Paddling”
Chapter 12: Avoid “Paddling”

Some law students adopt a pattern of analysis that alternately presents the arguments of each side
in the dispute. I call this "sing-song" approach "paddling" because it is like paddling a canoe, first
arguing the position of one party, then switching to argue the position of the other side. This can
be effective at times, but it is usually inferior to nailing the elements.
An answer with a PADDLING approach would be --
Here Loony would argue that Larry has an adequate legal remedy because he could bring
an action for defamation. Larry would argue that he does not have an adequate legal
remedy because Loony has "no assets."
Loony might also say that Larry is unlikely to succeed in a defamation action because he is
trying to violate Loony's a right to free speech, against the public interest. Larry would
argue that Loony's statement is defamation, and defamation is not protected speech.
Loony might argue that Larry cannot prove he will suffer irreparable harm. Larry would
argue that Loony's act is "trade slander," a slander per se so damages would be presumed.
This "Paddling" approach is not totally worthless, because it does focus on the facts and the
elements of the rule. In fact, it is a good approach to follow when there is an element that is not
well supported by the facts. In that situation it provides a framework for explaining the strength
and weakness of the supporting facts as viewed from each side. But it is simply overdone and
often used where it is unnecessary.
Probably the worst thing about this approach is that it gets really irritating to the grader. It is like
listening to two children argue. And some students make the fatal error of trying to “argue the
law” instead of the facts. NEVER try ‘arguing’ the LAW. Only FACTS are arguable. That means
that when facts are ambiguous each side can ‘argue’ how those facts should be interpreted. The
law is never arguable. YOU tell the Reader what the law is, and then you can have the “parties” in
the fact pattern “argue” over how the facts should be interpreted.
21
Chapter 13: Test Taking Mechanics

It is incredible the weird and stupid things law students do at examinations. The following
comments cover the simple mechanics of preparing for and writing an exam. These points seem
obvious but they are the reasons a lot of people fail law school and the Bar Exams.
If you work, take time off for law school exams! For strange unknown reasons law students are
the most overconfident people in the world. Take some days off to study for each law school
exam.
Look at old exams. Your professor may include extensive discussion of other issues of personal
interest to her in her lectures. Often the professor will not ask you anything about these
ruminations on the exams because they have little or nothing to do with the subject being taught.
They are for the professor's entertainment, and your "enlightenment."
Your professor may recite detailed facts such as the specific number of days proscribed by a
statute. Although this may truly be within the subject area of the class, the professor often does not
expect or care that you memorize all of this detailed information. It may never be asked about or
expected on an exam.
Your professor will never admit that a significant portion of her lecture is a waste of your time. To
the professor, all of this blather is elucidating. (I am no different. My blather is exciting stuff.)
Therefore, you need to GET THE OLD EXAMS given by your particular professor and determine
which part of the lecture is just time-wasting blather. You have limited time. Do not waste your
limited time studying something that is never going to show up on an exam.
Memorize and cite a few case names for effect. It makes your answer look sharp if you cite a
few case names on your essay answer (one or two). This is like putting a little parsley on the plate,
an empty gesture that adds to presentation. Be sure to use the case name appropriately, but it does
not matter if you ever actually read the case. In fact, reading cases is usually a royal waste of time.
It can even be counterproductive. Just be sure you refer to the case in the correct context.
Aces Don't Read Cases. Many successful law students never read a single case in law school, and
many students that dutifully read every case fail as a direct result. Reading the original case takes a
lot of time, it is confusing, and it is not very productive. This DOES NOT mean the case law is
unimportant. It means you will obtain a better understanding of the case law if you read a synopsis
of it in a commercial outline.
Your time is limited. The best use of your time is to 1) learn the law from a commercial outline, 2)
listen to the professor and read her old exams to determine her interests and biases, 3) memorize
definitions and rules for quick response and 4) practice writing essay answers using the IRAC
format presented in this book.
Write at least eight timed exams. That means you should spend at least 8 hours just writing
essay answers. You can only physically write for about 4 hours a day, so this means you need to
spend about TWO DAYS writing exams, getting your timing down and memorizing what to say.
Learn mnemonics. Without some mnemonics you are up the creek without a paddle.
22
Chapter 13: Test Taking Mechanics
Outline your answer and follow your outline! It does you no good to outline an essay answer if
you are not going to use it.
Bring decent pens. Whether you handwrite the essay or type it, buy a small box of good, smooth
writing black ink pens. DO NOT write an essay exam with colored pens or gummy old ink pens
that give you writer's cramp and leak all over. [I chided one student for using a crummy pen. He
said he liked that pen. He just flunked the Bar for the fourth time.]
Bring a watch or clock. Bring one (or more) watch or clock that you can adjust to the hour so
you can time your work. Start it when they say, "begin".
Use paragraphs, and lots of them. The "stream of consciousness" approach to writing does not
thrill the grader. I don't think e e cummings was an attorney. Break your answer up into
paragraphs of between one and four sentences.
Leave lots of blank space. Leave extra space between paragraphs, at the bottom of the page, and
between issues. Leave space so that if you forget to mention an issue you will have room to go
back and insert it.
Never start a new issue at the bottom of a page. Go to the top of the next page to begin a new
issue. Don't be afraid to ask for and use a lot of paper.
Typewriter ribbons. Bring plenty of typewriter ribbons if you type.
Do the essays in order. If you are given three essays, do them in the order given. DO NOT think
that you will improve your score by doing them out of order. It will NOT improve your score and
it can cause a major disaster. For example, there can be a problem with the third question. If
everyone but you is doing Question 1 the proctors might find an ambiguity on Question 3 and
make a timely announcement. That would save the day for everyone -- but you!
Further, if you are working on the same question as everyone else, you can feel their anxiety and
the pace of their work. You can feel when a question is easy or hard. You can feel yourself getting
behind on the time.
Print out each page of the essay as it is completed! If you type on a word processor, DO NOT
wait to the end of the essay to print it out. If you have a power failure, you will be screwed. Print
each page as it is finished!
Do not underline with the typewriter. Most typewriters underline too slowly. Use ALL CAPS
to identify words you feel are important and underline them manually with a pen after the page is
finished. This gives you a timely chance to review your answer too.
Get some sleep. It is absolutely counter-productive to study all night before the exam.
Don't get wired. It is a bad strategy.
23
Chapter 14: Essay Answer Formats –

WHAT to Say and HOW to Say It
Before you walk into a law school or Bar exam, you MUST be able to recite, verbatim, prepared
responses to a wide variety of potential questions. You do not have enough time to think up a good
response on the spot. You will get "brain lock", run out of time on your essay answers, panic and
your goose will be cooked.
You MUST be able to recite, from memory, the definitions, rules and elements of
• Equitable Jurisdiction
• Constructive Trust/Equitable Liens
• Doctrine of Laches
• Injunctive relief
• Estoppel
• Defenses to Contempt
Am I kidding? NO.
Will any of the other students learn all this? YES. Will they tell you? NO, they will act like they
don't know any more than you do.
How? You must develop this ability by repetition and practice. You must memorize and be
prepared to recite a significant portion of the material presented in the following Issues and
Answers if you are to succeed in passing your exams.
The following chapters provide you with the ISSUES, AUTHORITIES, DEFINITIONS and
RULES of law you need to be prepared for most questions. You can fake anything else.
Important Stuff. As you read through the following issue and answer formats, you may be
overwhelmed with the feeling that, "There ain't no way in Hell I can memorize all of this." This is
a natural reaction. But some of the following is more important than the rest, and the important
portions will be identified and marked for you like this Æ Important! As for the rest, you should
at least be able to fake it.
How to Memorize. The way to memorize the important portions of the following is like
memorizing the Gettysburg Address -- read it, recite into a tape recorder, and play it back against
the text. Do it naked if you have to. Sing it if you have to. Just do it.
The Text Format Used Here. In the following issue and answer formats, the text you should
know and be prepared to produce is presented in italics. Additional information, comments and
notes are presented in plain text.
Fake the Rest. You can't memorize everything. You can't know everything. You are human. So
just listen in class, read a course outline and fake anything that is not in this book. But KNOW the
definitions and rules that this book says are Important!
24
Chapter 14: Essay Answer Formats - WHAT to Say and HOW to Say It
Four Ploys to Save You on an Exam:

When you are taking law exams you will invariably find yourself in perplexing and difficult
situations. Here are four ploys you can use to get yourself out of a tight spot.
1. “Actions Imply Intentions.” If no facts expressly state what the parties’ intentions were
at the time they acted, their actions (or lack thereof) imply their intentions.
For Example: You are presented with facts that don’t expressly say what a
defendant’s intentions were at some point in time. You can say, “The defendant
impliedly did not intend to steal at the time of the breaking because she did not take
the TV until the next morning.”
2. “The Courts Have Often Been Split.” If you are presented with an issue that you have
either never seen before or else you recall reading something about it but can’t remember
which way the Courts decided the issue, you can always say, “The Courts have been split
on this issue…” It sounds very “lawyer-like” and it is always true. Then you should
probably discuss the “balance rule” and “reasonableness” standards presented below.
3. “The Court Would Balance.” For almost every issue in every area of law there is some
sort of “balance test”. In these “balance tests” the Court considers the interests of the
parties, the plaintiff and defendant, the interests of the Court itself, the interests of third
parties, and the public interest. So if you don’t know what the law is or what to say
consider saying, “The Court would balance the interests of the parties in light of the public
interest and the Court’s own interest considering the impact on the efficient administration
of justice.” This sounds good, and you can make it up on the spur of the moment.
4. “Reasonable expectations…reasonable behavior…reasonable person…” For virtually

every issue in every area of law the rule of law is based on what is “reasonable”.
Sometimes it is “reasonable expectations”, sometimes “reasonable behavior”, sometimes
“reasonably foreseeable”, and sometimes “reasonable person”. But it is always
“reasonable”. So if you use the word “reasonable” liberally in describing the rule of law
and the considerations of all concerned, you usually cannot go wrong.
For Example: Putting this all together, suppose you are presented with some dispute that raises an
issue that you have never seen before and don’t know the law at all. You have to fake it. A good
approach is to say, “The Courts have been split on this issue. The Court would balance the
interests of the parties in light of the public interest and the Court’s own interest considering the
impact on the efficient administration of justice. The decision would depend on the reasonable
expectations of each party in light of the reasonable needs of third parties and the impact on the
Court. Here the reasonable expectation of …. And a reasonable person would believe… And it
was reasonably foreseeable that… Therefore…”
25
Chapter 15: Answering Remedies Questions

Applicable Law. Every law-school or Bar essay that asks for discussion of "rights and remedies"
raises the issue of remedies. But a typical "Remedies" essay question (the subject of classes on
“Remedies”) focuses on whether equitable relief is possible. Usually, but not always, the focus is
on whether the plaintiff can obtain an INJUNCTION. But in order to determine if any equitable
relief is available, you must first consider the legal remedies provided by law. Usually that means
by CONTRACT, TORT and (occasionally) REAL PROPERTY law.
In general a "Remedies" question does not call for discussion of the specific remedies that might
be established by statute under state and federal laws such as corporation law, community property
law, etc. And the concept of “remedy” is completely foreign to criminal law concepts.
Why revisit CONTRACTS, TORT AND REAL PROPERTY? Before discussing equitable
remedies on an exam you must first analyze whether an adequate legal remedy is available. A
court only has EQUITABLE JURISDICTION if no adequate legal remedy is possible. A court
cannot provide equitable relief if an adequate legal remedy is available because the court lacks
equitable jurisdiction in that case. Therefore, you must first discuss whether an adequate legal
remedy is available before equitable relief is possible. That usually requires review of remedies
available under Contract, Tort and (possibly) Real Property law.
Focus on Movants and Respondents. In law school the terms “plaintiff” and “defendant” are
grossly overused and the terms “movant” and “respondent” are sadly underused and under
explained. When discussing “Remedies” your focus should be on “Who is pleading for the Court
to grant them a remedy?” (the movant) and “Who is opposing that effort?” (the respondent). The
movant always has the burden of proof. If defendants plead affirmative defenses or plead for
equitable relief, they are the movants and they have the burden of proving their claim. The only
defenses respondents can raise are passive defenses, arguments the movants have not met their
burden of proof.
Issue Presentation Order. The issues and answers presented below first address which legal
remedies are available. Those legal remedies are usually restricted to the award of a money
judgment, and the facts presented in an exam question often make it unclear whether a money
judgment would be an adequate remedy. While other legal remedies besides a money judgment
are common in the real world (e.g. eviction, rescission, replevin, divorce - a form of declaratory
relief, etc.) they are of no interest when addressing a “Remedies” exam question.
For example, suppose the question is, "Tom agreed to sell Dick a picture by Vinnie called
"Sunflowers." Then Tom breaches. Does Dick have the right to make Tom sell him the
picture?"
The clear answer is NO! Why? Because specific performance is an “equitable” remedy,
and there is no “right” to an equitable remedy, ever. If you thought the answer is “yes” you
have no clue that equitable remedies are at the DISCRETION of the judge.
But if the CALL asked whether Dick “could make” Tom sell him the picture the answer is
much foggier. If you think the answer is "yes" you are wrong, and if you think the answer
is "no" you are also wrong. (Don't you love it?) The JUDGE has DISCRETION to award
specific performance, but the movant has no “right” to it.
26
In order for Dick to make Tom sell him the picture (specific performance under UCC)
Dick must prove (convince the judge) that the goods are so unique award of a money
judgment would not be an adequate remedy. So if this is a rare painting by Vincent Van
Gogh Dick might prove this and get specific performance. But if it is a cheap print by
some unknown artist named Vinnie there is nothing unique about it. In this case award of a
money judgment would allow Dick to buy another print of the same picture, or some
similar print. So in that case Dick would not get specific performance.
Essay Order. In your "Remedies" essay consider the availability and adequacy of legal remedies
in the following order:
A. ARE LEGAL REMEDIES POSSIBLE? Could LEGAL REMEDIES be obtained? If the

movant has no legal cause of action (no enforceable contract, no tort cause of action and no
covenant running with the land) there is no legal remedy, and the only possible remedy is in
EQUITY. You may ignore all other areas of law such as wills, trusts, community property, and
civil procedure. “Remedies” exam questions are never based on those areas of law.
B. ARE LEGAL REMEDIES ADEQUATE? If there is a legal cause of action, is the standard
legal remedy in contract law, tort law and real property law adequate? The standard legal
remedy is the award of a money judgment, and in these areas of law a money judgment may
be awarded for either damages or restitution. In tort law a money judgment may also be
awarded as a punitive measure. If a money judgment is inadequate, the only adequate remedy
is in EQUITY.
A party granted a money judgment is a judgment creditor and the party against whom the
judgment is granted is a judgment debtor. The award of a money judgment is always
considered to be an adequate remedy whether the judgment creditor can ever collect on it or
not EXCEPT in certain narrow situations described below!
DAMAGES —
DAMAGES means award of a money judgment measured by the losses suffered

by the innocent party.
Contracts and Covenants. Damages for a breach of contract or covenant running

with the land are generally the sum of expectation damages (loss of the expected
benefits from the contract or covenant), reliance damages (out of pocket
expenditures incurred in the belief a contract or covenant would be performed),
consequential damages (lost profits on collateral contracts), and incidental
damages (minor expenses caused by the breach of a contract or covenant such as
storage charges). But the UCC essentially abandons the concepts of “expectation”
and “reliance” damages and replaces them with excess of market price (or cost of
“cover”) over contract price.
Torts. Damages for a tort are the sum of the economic losses caused by the tort
(special damages) such as medical expenses, property damage and lost wages, and
the emotional injuries caused by the tort (general damages) such as compensation
for pain and suffering.
27
RESTITUTION —
Legal restitution is a money judgment awarded to a non-breaching contract party

by right based on the terms of the agreement (e.g. a “money back guarantee”) or in
lieu of damages when the breach benefits the breaching party more than it injures
the non-breaching party, or to a tort plaintiff by right in lieu of damages (called
“waiving the tort”) when the tort benefits the tortfeasor more than it injures the
plaintiff.
PUNITIVES —
In some areas of law (not Contract law) a money judgment may be awarded to an
injured party as a punitive measure to punish the defendant and deter them and
others from similar wrongful acts in the future.
C. EQUITABLE RELIEF — If there is no legal basis to demand a remedy, or if a money

judgment based on a legal cause of action would be an inadequate remedy, can the party obtain
a court order granting equitable relief? The answer is NOT always “yes”.
Under CONTRACT law the Court (judge) a money judgment may not be an adequate
remedy for a buyer of unique goods so an order of specific performance may be issued to
assure title and possession of property (land, unique goods, unique services) are conveyed
to the buyer. Sellers have adequate legal remedies so they have no basis to plead equity!
Under TORT law the Court (judge) has discretion to issue an injunctive order to prevent a
continuing or repeated nuisance, trespass, violence, deprivation of civil rights, defamation,
or invasion of privacy.
Under REAL PROPERTY law money judgments may be awarded for breach of covenants
running with the land on the same principals as contract and tort law. Whether evictions
and ejectments are “legal rights” or more “equitable” in nature is arguable. The owner of
land generally has a legal right to evict holdover tenants and remove intrusions generally,
either by common law or statute, so that is a legal right and legal remedy. But the tenants
(or owners of property to be removed) generally plead equity as a DEFENSE. In that case
the final remedies are equitable, not legal.
The possible actions a Court may take in equity consist of issuance of a money judgment
(equitable relief when there is no legal cause of action), court orders (specific
performance, injunctions), a finding of constructive trust (a combination of declaratory
and injunctive relief), and issuance of an equitable lien (also a combination of declaratory
and injunctive relief). A party who raises an equitable plea (the movant as to that plea) has
the burden of proving the elements of the equitable cause of action (theory).
Awards of money judgments and specific performance in equity are equitable restitution.
D. EQUITABLE DEFENSES — The equitable defenses of LACHES and UNCLEAN HANDS

may be raised against a plaintiff’s action at law when the defendant has no recognized “legal
defense”, against a defendant’s legally effective defense, and against movants seeking
28
equitable relief. These are “affirmative defenses” because the party that raises the defense has
the burden of proving the elements. Often ESTOPPEL is also referred to as an equitable
defense, but it can be argued estoppel is just a form of “laches” when used in defense.
“Estoppel” can be used to refer to any effort by any party to “stop” any other party from doing
almost anything, while “laches” has a very clear meaning.
MNEMONICS — 1
A. DAMAGES under a contract: CCCC — Non-breaching parties must ALWAYS prove the
damages claimed were Caused by the breach, Couldn't be avoided, and prove them with
reasonable Certainty as to the amount. In addition, non-breaching parties claiming
CONSEQUENTIAL DAMAGES must also prove the damages were Contemplated by the
parties at the time of the contract.
B. For SPECIFIC PERFORMANCE: I’m Doing Fine Mom and Dad – Inadequate legal
remedy, Distinguished property (unique property), Feasible (for court), Mutuality and
Defenses (discuss defenses). Mutuality means that if the Court orders one party to perform
there must be some certainty the other party will perform in exchange.
C. For INJUNCTION: I Put Five Bucks Down – Inadequate legal remedy, Property rights are at
risk (a common law concept), Feasible (for court), Balance of interests (each side could
request) and Defenses (discuss defenses)
D. Does Court have EQUITABLE JURISDICTION?: In Ireland Baloney Succeeds --
Inadequate legal remedy, Irreparable harm, Balance of interests, likelihood of Success in
underlying cause of action.
REMEDIES ISSUES AND ANSWERS

FOLLOW THE CALL of the question. But if the call is general list the issues as follows as
appropriate:
1. Does a party have a right to a remedy based on IMPLIED-IN–FACT CONTRACT?

Under contract law, an IMPLIED-IN-FACT contract exists when a party acts to confer benefits on
another party with a reasonable belief they will be compensated in return, and the other party
knowingly allows them to act in order to receive the benefits. This creates a LEGAL CONTRACT
and the party acting to confer benefits has a LEGAL RIGHT to be awarded a money judgment in
the amount they reasonably believed they would be compensated. 2
[Implied-in-Fact Contract. Suppose Dick came to Tom's house and said, "I am here to
paint the house." Tom knows Dick is at the wrong house, but he silently lets Dick paint the
house. Since Tom knowingly received benefits Dick has a LEGAL RIGHT to award of a
money judgment in the amount he reasonably believed he would be paid.]
Here…because…Therefore…
[This issue is presented first here because sometimes if there is an implied-in-fact contract
there is no equitable jurisdiction and discussion of equitable remedies is a big waste of time.]
1
These mnemonics are not precise statements of the law, and should only be used to remind you of issues to consider.
Use them as a tool, but don’t let them use you!
2
You may call this “quantum meruit” and your professor may be very happy with that term. However, it is so misused
by different people to mean entirely different things that it hardly has any real meaning at all.
29
2. Can the Court provide a remedy based on IMPLIED-IN–LAW CONTRACT?

An IMPLIED-IN-LAW CONTRACT is an “equitable theory” or “equitable cause of action” that
may be pled when a party acts to confer benefits on another party with a reasonable belief they
will be compensated in return but has NO LEGAL CAUSE OF ACTION. 3 A Court of equity has
discretion to award the acting party a money judgment in the amount necessary to either prevent
unjust enrichment OR prevent frustration of commercially reasonable expectations. 4
[Implied-in-Law Contract. Suppose Ambulance Driver Dick saw Tom lying in the street
and rushed him to the hospital. If Dick reasonably believed he would be reimbursed, he
can plead for, and a Court of equity can award him a money judgment for reasonable
reimbursement from Tom (the normal cost of services). Dick has no “right” to be
reimbursed, but a Court of equity has discretion to award him the amount he reasonably
expected to receive. But if he acted as a “volunteer” without expectation of reimbursement
a Court of equity has no basis to award him anything at all.]
[The key importance of this issue is that if the moving party acted with reasonable
expectation of compensation but ends up with NO LEGAL RIGHT to a remedy, for any
reason, the proper equitable theory (cause of action) for them to plead is implied-in-law
contract, NOT promissory estoppel, detrimental reliance, or those warm, fuzzy feelings in
your heart about what your mommy told you is right and wrong.]
3. What damages are available for INTENTIONAL TORTS?

Under tort law, in addition to SPECIAL and GENERAL damages, PUNITIVE damages may be
awarded to punish and deter INTENTIONAL TORTS, and INJUNCTIVE RELIEF may be
available to prevent and deter continuing or repeated acts.
The constitutional limits on cruel and unusual punishment limit the level of punitive damages. The
reasonableness of punitive damage awards is assessed by comparison to special damages, the
defendant's wealth and the maliciousness of the tortious acts.
In assessing the need for injunctive relief the court would consider the likelihood the act sought to
be enjoined would be repeated, the nature and wrongfulness of the act to be enjoined, the injury to
the movant and the feasibility of continued court supervision.
[These questions often concern whether an injunction can be obtained to prevent

continuing or repeated trespass, encroachment, ejectment, deceptive sales practices,
repeated invasion of privacy ("stalking"), nuisance, repeated defamation or threats, etc.
The main issues would be whether an injunction is needed and whether the court could
feasibly enforce the injunction.
3
There are many possible reasons for this: One party may act without the knowledge and agreement of the other, a
party may have committed a major breach, an implied or express material condition of the contract may have failed,
the contract may have been legally rescinded, a unilateral contract offer may have been revoked, a contract may not
satisfy the Statute of Frauds, a party may lack contractual capacity, etc.
4
This may also be called “quantum meruit” but, again, that term has no consistent meaning.
30
Another possible question concerns the recovery of property transferred or payment for
services rendered based on false representations. This often raises the defense of the bone
fide purchaser.]
[Note there are NO PUNITIVE DAMAGES allowed in contract law OR for negligence
unless the tortfeasor’s acts constitute GROSS NEGLIGENCE or RECKLESSNESS. Most
law students (and many law professors) haven’t a clue what “gross negligence” and
“recklessness” are, how they vary from each other or how either of them differs from
“regular negligence”. If that mystifies you, see the following discussion of “damages for
negligence”.]
4. What damages are available for NEGLIGENCE?

Under tort law COMPENSATORY damages may be either special or general. SPECIAL damages
pay for out-of-pocket injury, and GENERAL damages pay for pain and suffering. PUNITIVE
DAMAGES cannot be awarded for negligence unless the acts of the tortfeasor constitute GROSS
NEGLIGENCE or RECKLESSNESS.
GROSS NEGLIGENCE is a deliberate breach of an existing duty to protect others from harm.
RECKLESSNESS is a deliberate creation of extreme and unreasonable risks to others. In
comparison, “regular” negligence is an inadvertent breach of a duty to protect others from harm,
regardless of why the duty exists.
Under the MAJORITY view, the tortfeasor has no liability for lost profits unless there was privity
between the parties based on contract or some other relationship. The MINORITY view is that
there is liability for foreseeable lost profits.
The value of lost property must be ascertainable by market value or objective sentimental value.
Repair costs normally are limited by the total value of the damaged item.
[A negligence situation would be a very unusual issue on a "Remedies" question and

should be discussed only if clearly called for.
No "injunction" can be issued to stop regular negligence, because regular negligence is an

unintentional act. So about the only remedy issue that could be raised concerns the proper
award for loss or damage of objects of sentimental value.
Injunctions can be issued to stop GROSS NEGLIGENCE or RECKLESS acts because

those concern deliberate acts or failures to act.]
5. Can the property be recovered through LEGAL REPLEVIN? [This is rarely if ever tested.]
Under the law of remedies LEGAL REPLEVIN may be used to recover possession of chattels
where title has not passed. The respondent [defendant] can prevent LEGAL REPLEVIN by posting
a bond.
31
6. Can RESTITUTION return the parties to STATUS QUO?

Under contract law, a contract may be RESCINDED and RESTITUTION may be used to recover
property or payments even if the contract is invalid. LEGAL RESCISSION means a contract party
declares the agreement void and EQUITABLE RESCISSION means a Court (judge) declares it
void. The goal of RESTITUTION is to restore the parties to status quo.
[This is also an issue of very little interest on exams. But in fact, this is one of the most
common legal scenarios; contracts often fail and a Court of equity (judge) has to devise an
equitable remedy to split property and return monies to rectify the situation to the extent
possible.]
7. What LEGAL DEFENSES can the respondent raise against an IMPLIED CONTRACT claim?
Implied-in-fact and implied-in-law contract claims can always be challenged [by respondents] on
the grounds the party that seeks to enforce the claim [the movant] acted as a volunteer with no
reasonable expectation of compensation.
[This is simply an argument that the movant gave the respondent a GIFT and seeks
compensation after the fact. It is, perhaps, the ONLY thing that implied-in-fact contracts
(legal contracts) have in common with implied-in-law contract (an equitable theory or
cause of action).]
8. Does the Court have EQUITABLE JURISDICTION?

Under the law of remedies a movant seeking EQUITABLE RELIEF must show that EQUITABLE
JURISDICTION exists. This requires showing that inadequate legal remedies exist, irreparable
harm is threatened, and the balance of hardship and/or public interest favors the movant and the
movant would probably be successful in the underlying action. The requested relief must be
feasible for the court. [Important!]
[Mnemonic = In Ireland Baloney Succeeds. If an INJUNCTION is being sought,

equitable jurisdiction should usually be addressed completely as a separate issue.]
[This is VERY IMPORTANT to consider and prove every time equitable remedies are to
be discussed. The burden is ALWAYS on the movant to prove the Court has equitable
jurisdiction.]
9. Can the movant obtain EQUITABLE RESTITUTION?

Under the law of remedies, if a movant proves EQUITABLE JURISDICTION exists the Court may
act to provide EQUITABLE RESTITUTION to either prevent frustration of reasonable
expectations OR prevent unjust enrichment.
32
[At law a plaintiff that has established a right to an award of a money judgment for
“damages” has a right to award of a HIGHER AMOUNT in “restitution” instead if it will
prevent the defendant from reaping an “unjust enrichment”. So “legal restitution” is always
a money judgment measured by the “unjust enrichment” the judgment debtor would
otherwise enjoy.
But in equity the Court (judge) has discretion to award a money judgment measured by
either the “unjust enrichment” the judgment debtor would otherwise enjoy OR by the
amount necessary to compensate the judgment creditor. So “equitable restitution is not
always measured by considerations of “unjust enrichment”.]
10. Can the movant obtain EQUITABLE REPLEVIN?

Under the law of remedies, if a movant proves EQUITABLE JURISDICTION exists the Court may
act to provide EQUITABLE REPLEVIN to return possession and title to chattels to the movant.
Equitable replevin is an order of SPECIFIC PERFORMANCE as to chattel. Unlike legal replevin,
respondents can not prevent EQUITABLE REPLEVIN by posting a bond.
[This is a very unlikely issue. The only thing to remember is that a movant seeking legal
replevin can be forced to post a bond but a movant seeking equitable replevin cannot.]
11. Can the movant obtain an order of CONSTRUCTIVE TRUST?

Under the law of remedies, if a movant proves EQUITABLE JURISDICTION exists, and that the
respondent holds or has held property that can be DIRECTLY TRACED to property wrongfully
taken from the movant, the Court has discretion to declare that property and all profits, rents and
issue it has produced for the respondent to be held in CONSTRUCTIVE TRUST for the movant.
[This is a commonly tested issue when property is taken from the movant but there is no
legal cause of action (e.g. no action for conversion is possible). The Court may award the
movant possession of all amounts that can be directly traced back to them, plus all rents,
profits and issue produced by the use of that property, plus all other amounts that were
taken but not recovered, even if the entire sum is greater than the amount originally taken.]
12. Can the movant obtain an order of EQUITABLE LIEN?

Under the law of remedies, if a movant proves EQUITABLE JURISDICTION exists, an
EQUITABLE LIEN can be awarded against property held by the tortfeasor that is superior to
other liens against the same property to secure the movant’s recovery rights against the property.
This would generally be because the respondent holds property that was ENHANCED OR
IMPROVED by goods, services or funds wrongfully taken from the movant.
[This is an issue that is often discussed by law students who have almost no understanding
of the actual concept. The situation only arises when a respondent has property interest that
has been increased in value because of money, goods, or services wrongfully taken from
the movant, and injustice would occur if the lien is not awarded.]
33
13. Can the respondent raise the EQUITABLE DEFENSE of LACHES?

Under the DOCTRINE OF LACHES, that the movant has unreasonably delayed seeking relief,
resulting in prejudice to the respondent. [Important!]
[Laches is an equitable defense, but it can be raised in response to a claim (cause of action) at
either law or equity. Laches is an affirmative defense meaning that the party raising the
defense has the burden of proving the elements (e.g. “unreasonable delay”). The party raising
the defense may not be “the defendant” in the overall action, but they typically are a
“respondent” as to the claim against which the defense is raised. For example, A sues B, so B
is “the defendant”. B raises a counterclaim against A based on events that occurred many years
earlier. A raises laches as a defense against the counter-claim of B. A is “the plaintiff” in the
overall action but a “respondent” as to B’s counter-claim.]
14. Can the party raise a claim of ESTOPPEL?

Under the doctrine of ESTOPPEL an agreement may be enforced or a defense denied if the person
to be estopped 1) made express or implied promises or representations or otherwise deliberately
concealed material facts, 2) with an intent to cause reliance by the other party, 3) and their
behavior caused reasonable reliance, and 4) an injustice will result if the court allows assertion of
a position contrary to the party's prior representations. [Important!]
15. Can the party raise a claim of DETRIMENTAL RELIANCE?

A claim of DETRIMENTAL RELIANCE may be pled by a movant when a respondent 1) made
representations or deliberately concealed material facts, 2) with intent to cause reliance by the
movant, 3) the movant did reasonably rely, and 4) injustice will result if the court does not act to
compensate the movant or allows respondents to act contrary to their prior representations.
[ESTOPPEL, PROMISSORY ESTOPPEL, and DETRIMENTAL RELIANCE are three

closely related equitable concepts, and the best term to use in your answer varies with the
given facts. Generally “estoppel” means a plea (by the movant) to “stop” the respondent from
doing something. If the movant is the plaintiff in a legal action (i.e. the movant has initiated
litigation) a plea of estoppel may ask to “stop” the respondent from raising a legal defense
such as the Statute of Frauds. If the respondent made some express promise (i.e. a gift
promise) the movant may plead promissory estoppel to prevent the respondent from revoking
the promise. If the movant is not asking the Court to “stop” the respondent from acting, and
instead wants the Court to order the respondent to do something the underlying equitable cause
of action (theory) is more often best called detrimental reliance because “stopping” the
respondent is not the plea.]
16. Can the defendant raise the EQUITABLE DEFENSE of UNCLEAN HANDS?
A Court of equity will deny equitable relief to a movant shown to have acted wrongfully on the
rationale that one who “seeks equity” must “do equity”. [Important!] However, the court will
recognize "self help" as a legal remedy if it is reasonable and necessary.
34
[The key concept of UNCLEAN HANDS is that movants that have elicited promises or
agreements from respondents by threats, deception and other wrongful means should not
helped by a Court of equity to profit from their wrongful acts.]
17. Can the defendant claim to be a BONE FIDE PURCHASER to defend against a claim of
RESTITUTION?
Under the law of remedies the title to property may not be recoverable from a BONE FIDE
PURCHASER FOR VALUE that purchased the property without knowledge that the seller of the
property had obtained it improperly. [Important!]
[Generally a bone fide purchaser of property is a total defense against all claims, legal or
equitable, but the purchaser must be without knowledge of claims against the property.
Often essay questions do not expressly state that is so. Instead they often just say the
purchaser “paid fair market value”. Be sure to discuss whether the buyer possibly knew or
should have been aware of possible claims.]
18. Can the respondent claim COMMINGLED FUNDS to defend against a claim of
CONSTRUCTIVE TRUST?
Under the law of remedies a claim of COMMINGLED FUNDS can be raised as a defense against
a claim of constructive trust.
[For a Court of equity to declare funds in the possession of the respondent to be held in
constructive trust for the movant they must be directly traceable to property taken from the
movant. If the funds have been commingled with other funds of the respondent there often is
no basis for a Court to declare a constructive trust in equity.]
19. Can an INJUNCTION be obtained?

Under the law of remedies a party that proves EQUITABLE JURISDICTION may request an
injunction. An injunction may be a TEMPORARY RESTRAINING ORDER (TRO), a
PRELIMINARY INJUNCTION or a PERMANENT INJUNCTION. [Important!]
A TRO and a PRELIMINARY INJUNCTION are provisional relief and normally require the
movant to post a BOND sufficient to compensate the enjoined respondent in case the injunction is
improperly obtained. However, a Court of equity may waive the requirement of a bond where the
party seeking the order is indigent or a public interest group or if one of the parties is a
government entity. A TRO can be obtained on an ex parte application and lasts for 15 days after
which the respondent is entitled to a hearing on a preliminary injunction or else the TRO must be
lifted. [Important!]
PRELIMINARY and PERMANENT INJUNCTIONS can be appealed, but TROs cannot be

appealed unless the order raises first amendment issues or constitutes a DE FACTO
PRELIMINARY INJUNCTION. [Important!]
A STAY may be requested during the appeal of an injunction, and in CALIFORNIA a mandatory
injunction is automatically stayed during the period of appeal.
35
An injunction is enforced by the threat of a CONTEMPT ORDER.
[The main focus of an injunction analysis is often whether there is equitable jurisdiction or
not. The rule statement for the injunction does not actually call for much analysis.
However, an injunction will be held to be invalid if it is overbroad or fatally vague, and
that is often the case.]
20. What are the DEFENSES TO CONTEMPT?

Under the law of remedies a party that violates an injunction may be held liable for contempt. An
accusation of contempt can be defended on the grounds that 1) the court that issued the order
lacked jurisdiction, 2) that there was no willful violation of the court order, 3) that the order was
impermissibly vague, or 4) that the defendant had no notice of the injunction. [Important!]
A COLLATERAL ATTACK on the original injunction is a challenge of the injunction in a different

court. A collateral attack will only be allowed on the grounds of 1) jurisdiction, 2) that the order
was a bad faith restraint on first amendment rights, or 3) that the defendant had no opportunity to
appeal. [Important!]
[An injunction is only valid if it is necessary to protect important rights of the movant. If an
essay question says an injunction was issued and it is described in detail (e.g. the respondent is
ordered to remain at least 1,000 feet away from the movant) you generally should consider
discussing whether the terms were OVERBROAD as written. Injunctions that prevent freedom
of expression are always invalid unless they are very narrowly written to attain a very
important purpose such as to protect trade secrets, military secrets, etc.]
21. Can the party recover ATTORNEY FEES?

Under the AMERICAN RULE each party is generally responsible for its own attorney fees.
However, a CONTRACT or STATUTE may provide for an award of attorney fees to the
PREVAILING PARTY in specific cases. Fees may also be awarded a prevailing party under the
PRIVATE ATTORNEY GENERAL theory and COMMON FUND THEORY. Commonly fees would
be based on customary fees in the area, and the federal LODESTAR approach awards reasonable
rates multiplied by a reasonable number of hours. The reasonableness of rates is determined by
the difficulty of representation, the experience of the attorney and the average rates charged by
other attorneys for similar services.
Note: The above issue statements provide virtually every important issue, definition, rule
and term that you will ever see on a REMEDIES examination in law school or on a Bar
Exam. If you know the above issues and responses you have everything you really need.
36
Practice Question 15-1

For $30,000 John D. Richerfeller hired famous leftist Mexican artist Diego Ramirez to paint a
sweeping mural on the wall of the lobby of his spacious new $100 million office development,
Richerfeller Center. Their written agreement said that the mural "had to satisfy Richerfeller", and
that it should illustrate the world-wide impact of the Richerfeller Corporation. The contract
specifically stated the mural was to be completed by June 30 because Richerfeller wanted the new
tenants to view it as they moved into the new building on July 1.
Richerfeller expected Ramirez to produce one of his unique brightly colored frescos on the plaster
wall showing poor, ignorant peasants happily using Richerfeller products around the world.
After months of backbreaking effort on June 30 Ramirez unveiled a huge somber painting on a
canvas that included a portrait of Richerfeller along with a number of famous dictators and tyrants
stepping on peasants.
Richerfeller was outraged and demanded that Ramirez remove the offensive portions and replace
them with colorful pictures of happy peasants using Richerfeller products. When Ramirez refused
Richerfeller sought an injunction for specific performance to force Ramirez to change the painting
to his satisfaction. He also demanded consequential damages of $10,000 per day for lost rental
income because he would not let tenants move into the building until the painting was revised.
Art experts agree that because of the controversy the painting now has a resale value of $1 million.
Ramirez refuses to change the painting and says he has substantially performed because the
painting is worth more than he was going to get paid. He demands that he either be paid the
$30,000 or else he should be given the painting to prevent unjust enrichment to Richerfeller.
Richerfeller says Ramirez should get nothing because he delivered non-conforming goods. He also
insists the painting has no value to him because it insults him and his family. He refuses to pay
Ramirez, and he says there is no unjust enrichment because he will remove and burn the painting
unless Ramirez changes it.
Discuss the issues raised by --
Richerfeller’s refusal to pay for the painting as non-conforming goods;

Richerfeller's request for specific performance to make Ramirez change the painting;
Richerfeller’s demand for consequential damages for lost rents;
Ramirez’s demand for $30,000 based on substantial performance;
Ramirez' demand for the painting to prevent unjust enrichment.
37

For weeks Reverend McClenaghan led anti-abortion protesters picketing Doctor Wellby’s office,
chanting so loudly it interfered with his ability to treat his patients. They often trampled Wellby’s
flowerbeds, and one night his office was set on fire. One protester entered his office, posing as a
pregnant woman, and poured a foul-smelling liquid on his carpets.
Wellby sued the good Reverend. McClenaghan did not answer, and Wellby got a default judgment
against him for $10,000 in actual and punitive damages. But Wellby found that the judgment was
of no value because McClenaghan had put all of his assets in a trust. Because the judgment had no
impact, McClenaghan continued to picket Wellby.
Wellby next tried turning his lawn sprinklers on whenever he was picketed so that the protesters
would get wet. That plan failed because the next night vandals destroyed his sprinklers.
Wellby then obtained a temporary restraining order preventing McClenaghan and his followers
from coming within 200 yards of his office or saying anything that would disturb Wellby's
patients.
McClenaghan tried to appeal the TRO but was turned away. McClenaghan seeks withdrawal of
the TRO on several grounds.
First, McClenaghan argues he has a right to appeal the TRO because his picketing is guaranteed
by the First Amendment.
Second, he argues the TRO is overbroad.
Third, he argues that there is no equitable jurisdiction because Wellby has legal remedies and can
bring another action for nuisance and trespass.
Fourth, he argues that the balance of public interest in protecting the First Amendment rights of
free speech, religion and assembly are in his favor.
Fifth, he argues that because he tried using lawn sprinklers against his followers Wellby comes to
court with “unclean hands.”
Sixth, he argues that by first bringing a suit against him, Wellby waived equitable jurisdiction, and
is now barred from seeking an injunction by the Doctrine of Laches.
Discuss.
38

Jay lived in the sticks in a rundown shack on 40 acres. Nearby was a swampy 10-acre parcel of
land that had been for sale for so long that the paint on the realtor's sign was faded. One day
someone moved the “For Sale” sign in front of the northernmost 10 acres of Jay’s land.
After a few days Smith showed up and proudly announced he had just bought the 10-acre parcel
behind the sign from its absentee owner for $10,000. Jay knew Smith was confused, but he just
smiled and welcomed him to the neighborhood.
Smith cleared 10 acres of Jay’s land and built a house on it. In all Smith spent $60,000 on his
house, and the land he built on was worth $20,000. Jay never said a word to warn him he was
clearing the wrong land and building in the wrong place. When Smith was done the house was
worth $120,000.
After Smith finished Jay borrowed $100,000 against the house on his land from Ace Mortgage,
and Ace had no knowledge or way of knowing Smith had a claim against the land.
Then Jay told Smith he had built on the wrong land and demanded that he vacate the property.
It was clear that Smith had, in fact, built the house on land owned by Jay, and he would have
discovered this if only he had hired a surveyor.
Jay has brought a legal action for an order to eject Smith from his land and seize the house for
himself.
Smith cannot prove who moved the sign. He wants to keep the house he built or else recover his
investment. And he is concerned Jay may sell the house to someone or borrow against it before his
claim against it can be heard in court. He is also concerned the claim of Ace is superior to his own.
Assuming Smith has no legal cause of action against Jay, discuss the following equitable issues –
1. Estoppel;
2. Constructive trust;
3. Equitable lien;
4. Unclean hands;
5. Laches.
39

The Young Nazi League rented the University Ballroom for its annual “Springtime for Hitler”
gala. But the night before the big event Campus Police Chief Goldberg, decided there might be a
disturbance of the peace. Disturbance of the peace is a misdemeanor, so he obtained a temporary
restraining order to stop the dance by falsely stating there were rumors of a riot. Chief Goldberg
did not post a bond.
The order stated, “The Young Nazi League is hereby ordered to cancel all their gatherings and
organized activities that are likely to result in disturbance of the peace.”
The next afternoon Chief Goldberg then went to the home of the Uber-Kommander of the Young
Nazis, Ross. Ross had the flu, and when he got to the door Chief Goldberg handed him the TRO
and said, "Pursuant to this court order, I am canceling your ball tonight. Anyone that shows up
will be arrested."
Ross gave the notice to the Young Nazis League's lawyer, Diana, and went back to bed. Diana
immediately rushed to the county courthouse and tried to appeal the TRO, but the local magistrate
denied his request because a TRO cannot be appealed.
By the time Diana got to the University Ballroom the polka band was playing and the Hitler Youth
were gaily dancing about completely unaware of the TRO. Before Diana could get their attention
Chief Goldberg swept in and cited Diana and the five officers who comprised the Supreme
Command of the Young Nazi League with disturbing the peace. Ross was at home where he was
still in bed.
Diana, Ross and the Supremes were all charged with contempt.
Discuss the following:
1. Did the court have equitable jurisdiction to enjoin crime?

2. Was a bond required?
3. Collateral attack on bad faith restraint of civil rights?
4. Impermissibly vague order?
5. Right to appeal TRO?
6. Lack of notice?
40

Snoopy came to the office of Larry the Lawyer with grave concerns her neighbor, a sweet old
carpenter named Reza, was in need of protection.
Snoopy told Larry that Reza was senile and had begun building a garage on the land of his next
door neighbor, Slick Willy, under the irrational belief it was his land. When Larry went to the site
Reza was busily working on the garage while Slick Willy sat on a lawn chair drinking beer and
laughing with his buddies at the windfall he was getting. Occasionally Slick would encourage
Reza to work harder or the "Devil would get him."
Reza refused to listen to Larry and suspected he was sent by the Devil to torment him.
Larry found that Reza had no living relatives who could help him. On his own initiative Larry
filed motions in Superior Court seeking appointment of a conservator for Reza. When Larry
presented Reza with a $1,500 bill for 10 hours of his services Reza tore it up.
On Larry's motion the court found Reza incompetent and the Public Conservator appointed Anne
the Attorney to represent Reza.
Anne hired a construction estimator who found that Slick Willy would have had to pay a building
contractor $20,000 to duplicate Reza's construction efforts. But a real estate appraiser found that
the addition of the garage increased the market value of the property by $30,000.
Anne filed an action on Reza's behalf in the county court claiming an interest in Slick Willy's
property. In response Slick Willy sold his house the next week at market value to Bonnie, who had
no idea there was any dispute over the property.
Larry presented his $1,500 bill to Anne, and she refused to pay it because she thought the bill was
too high, and besides Reza had not agreed to Larry's representation. Upon what theory can Larry
seek recovery? If Larry recovers at all, how might the court calculate the appropriate amount?
Upon what theories could Anne bring an action on behalf of Reza against Slick Willy and for what
amounts?
Since Bonnie bought the property the real estate market has been up and down. Upon what
theories could Anne bring an action against the property, for what amounts, and what would be
Bonnie's defense?
41
Chapter 16: Conclusion

Brilliant law students often fail to grasp that the essay grader has to grade a lot of essays in a short
time. The grader just wants you to spot and state the ISSUES.
Then, for each issue the grader wants you to correctly state the AREA of law and RULES that
apply.
Then for each rule, the grader wants you to identify the ELEMENTS of the rule that are supported
(or not supported) by the given FACTS.
By citing FACTS, you prove the ELEMENTS. By nailing the ELEMENTS you prove the RULE.
And by proving the RULE you prove the ISSUE.
When the issue is proven, just state a CONCLUSION and move on.
You MUST be prepared to recite, verbatim, certain rules of law (and equity). For example there
are times you MUST cite the defense of Laches. You do not have to memorize everything in this
book, but you must be prepared to recite concise definitions and rules for some concepts without
hesitation. During the exam is not the time or place to begin composing a statement explaining
complex legal and equitable concepts.
You don't have to be brilliant to succeed in law school. The key to success is the use of the
"Here"/"because" word combination along with some memorization and plenty of timed
practices. PRACTICING essay writing is critical so you do not run out of time.
Appendix A gives an ALPHABETICAL LISTING and explanation of just about EVERY

definition and rule you need to know for Remedies. In the rule definitions the required elements
that should be the focus of your analysis are underlined for emphasis.
Appendix B gives SAMPLE ANSWERS to the practice questions presented above. The word
"because" appears repeatedly in the sample answers. The word "Here" addresses each ELEMENT
to be proven, and the word "because" nails that element with a given FACT. That is the approach
you need to learn.
Nailing the elements is the key to success in law school, and YOU WILL SUCCEED if you
follow the approach presented in this book.
42
Appendix A: Rules and Definitions

1. ADEQUACY OF LEGAL REMEDIES (REMEDIES). To establish EQUITABLE
JURISDICTION the movant must show legal remedies are inadequate. Legal remedies are
inadequate 1) where unique property is in dispute, 2) where repetitive legal actions would
otherwise be required, 3) where fundamental rights are at risk, or 4) where money damages
cannot be collected and have no preventative effect.
2. AMERICAN RULE (REMEDIES). Under the AMERICAN RULE each party is generally
responsible for its own attorney fees.
3. ATTORNEY FEES (REMEDIES). Under the AMERICAN RULE each party is generally
responsible for its own attorney fees. However, a CONTRACT or STATUTE may provide for
an award of attorney fees to the PREVAILING PARTY in specific cases. Under the federal
and majority view attorney fees may only be awarded where a contract or statute provides for
such an award. Some states allow fees to be awarded TO a prevailing party under a PRIVATE
ATTORNEY GENERAL theory or a COMMON FUND THEORY. Commonly fees would be
based on customary fees in the area, and the federal LODESTAR approach awards reasonable
rates multiplied by a reasonable number of hours.
4. BONE FIDE PURCHASER FOR VALUE (REMEDIES). Under the law of remedies it
may not be able to recover the title to property from a BONE FIDE PURCHASER FOR
VALUE that purchased the property without knowledge that the seller of the property had
obtained it improperly.
5. COLLATERAL ATTACK (REMEDIES). A COLLATERAL ATTACK is a challenge of a

contempt order for violation of an injunction on the grounds that the original injunction was
improper.
6. COMMINGLED FUNDS (REMEDIES). Under the law of remedies the existence of

commingled funds in an asset may be raised as a defense to a claim against the whole of the
property based on a theory of CONSTRUCTIVE TRUST.
7. COMMON FUND THEORY (REMEDIES). Attorney fees may be awarded to a prevailing

party under a common fund theory where private legal action in the public interest benefited a
number of parties and created a common fund out of which the fees can be paid.
8. CONSEQUENTIAL DAMAGES (REMEDIES). Generally no damages for lost profits or

other consequential damages may be awarded under either contract or tort law. Under
HADLEY v. BAXENDALE SPECIAL damages can be awarded in a contract action for lost
profits if they were contemplated at the time of the contract, caused by the breach, couldn't be
avoided, and are certain in amount. Under the MAJORITY view damages for lost profits may
be awarded in a tort action only if there was privity between the parties based on a contract or
some other relationship. In the MINORITY view a tortfeasor is liable for foreseeable lost
profits even if there is no privity between the parties.
43
9. CONSTRUCTIVE TRUST (REMEDIES). If EQUITABLE JURISDICTION exists, a

CONSTRUCTIVE TRUST may be claimed where a tortfeasor wrongfully gains title to
property. The property is considered to have been held in trust for the true owner who can
demand its return along with all profits and income that it has produced.
10. CONTEMPT DEFENSES (REMEDIES). Under the law of remedies a party that violates
an injunction may be held liable for contempt. An accusation of contempt can be defended on
the grounds that 1) the court that issued the order lacked jurisdiction, 2) that there was no
willful violation of the court order, 3) that the order was impermissibly vague, or 4) that the
defendant had no notice of the injunction.
A challenge of a contempt order by COLLATERAL ATTACK on the validity of the original

injunction will only be allowed on the grounds of 1) jurisdiction, 2) that the order was a bad
faith restraint on first amendment rights, or 3) that the defendant had no opportunity to appeal.
(See COLLATERAL ATTACK.)
11. ENGLISH RULE (REMEDIES). Under the ENGLISH RULE a prevailing party is
generally entitled to an award of attorney fees.
12. EQUITABLE DEFENSES (REMEDIES). The equitable defenses are LACHES and
UNCLEAN HANDS. ESTOPPEL, which is actually an equitable remedy, is often also seen
as being an equitable defense.
13. EQUITABLE JURISDICTION (REMEDIES). Under the law of remedies a plaintiff

seeking EQUITABLE RELIEF must show that EQUITABLE JURISDICTION exists. This
requires showing that inadequate legal remedies exist, irreparable harm is threatened, and the
balance of hardship and/or public interest favors the plaintiff and the movant would probably
be successful in the underlying action. The requested relief must be feasible for the court.
14. EQUITABLE LIEN (REMEDIES). If EQUITABLE JURISDICTION exists, an

EQUITABLE LIEN can be awarded against property held by the tortfeasor that is superior to
other liens against the same property to secure the movant’s recovery rights against the
property.
15. EQUITABLE REPLEVIN (REMEDIES). If EQUITABLE JURISDICTION exists,

EQUITABLE REPLEVIN may be used to recover possession and title to chattels. The
defendant can not prevent EQUITABLE REPLEVIN by posting a bond.
16. ESTOPPEL (REMEDIES). The doctrine of ESTOPPEL is an equitable remedy that enforces
an agreement or bars a defense if the person to be estopped 1) made express or implied
representations or concealed material facts, 2) with an intent to cause reliance by the other
party, 3) and their behavior caused reasonable reliance, and 4) an injustice will result if the
court allows assertion of a position contrary to the party's prior representations.
17. IMPLIED CONTRACT DEFENSES (REMEDIES). All implied contracts can be

challenged for failure to meet the requirements of the Statute of Frauds and statutes of
limitation, and an implied-in-law contract may be challenged if the plaintiff was a volunteer
that had no reasonable expectation of compensation.
44
18. IMPLIED-IN-FACT CONTRACT (REMEDIES). Under an IMPLIED-IN-FACT contract

the defendant knowingly receives benefits from the plaintiff. For example, the defendant may
knowingly allow the plaintiff to accidentally paint the wrong house. The plaintiff is entitled to
a legal remedy as in the case of any other contract.
19. IMPLIED-IN-LAW CONTRACT (REMEDIES). Under an IMPLIED-IN-LAW contract

the plaintiff acted with a reasonable expectation of compensation from the defendant who is
unaware of the plaintiff's act. For example a plaintiff may aid the unconscious defendant after
an accident reasonably expecting to be paid for the service. The plaintiff may not be a
VOLUNTEER. The court may award the plaintiff an amount sufficient to prevent frustration
of reasonable expectations. (See VOLUNTEER.)
20. INJUNCTION (REMEDIES).Under the law of remedies a party that proves EQUITABLE
JURISDICTION exists may request an injunction. An injunction may be a TEMPORARY
RESTRAINING ORDER (TRO), a PRELIMINARY INJUNCTION or a PERMANENT
INJUNCTION.
A TRO and a PRELIMINARY INJUNCTION are provisional relief that normally require
posting a BOND to compensate the enjoined party if the injunction is improperly obtained A
TRO can be obtained on an ex parte application and lasts for 15 days.
PRELIMINARY and PERMANENT INJUNCTIONS can be appealed, but TROs cannot be

appealed unless the order raises first amendment issues or constitutes a DE FACTO
PRELIMINARY INJUNCTION.
A STAY may be requested during the appeal of an injunction, and in CALIFORNIA a

mandatory injunction is automatically stayed during the period of appeal.
An injunction is enforced by the threat of a CONTEMPT ORDER.
21. LACHES (REMEDIES). The doctrine of LACHES is an EQUITABLE DEFENSE that bars
a plaintiff from bringing a claim after unreasonably delaying in seeking relief, thereby causing
prejudice to the defendant's position.
22. LEGAL REPLEVIN (REMEDIES). Under the law of remedies LEGAL REPLEVIN may be
used to recover possession of chattels where title has not passed. The defendant can prevent
LEGAL REPLEVIN by posting a bond.
23. LODESTAR (REMEDIES). Under the LODESTAR approach a federal court may award
attorney fees based on a reasonable number of hours multiplied by a reasonable rate. The rate
used may be adjusted to reflect the nature of the case.
24. MUTUALITY (REMEDIES). A court will generally deny SPECIFIC PERFORMANCE to a

party unless the opposing party enjoys a mutuality of remedy. For example, where Buyer and
Seller have contracted for the purchase of real property in exchange for money, a court will
deny specific performance to Buyer unless the Buyer can assure the Seller will be paid.
Otherwise the Buyer would obtain the property and the Seller would be left without adequate
legal remedy for obtaining payment.
45
25. OBJECTIVE SENTIMENTAL VALUE (REMEDIES). The value of lost property must be
ascertainable by market value or objective sentimental value. Repair costs normally are limited
by the total value of the damaged item.
26. PRIVATE ATTORNEY GENERAL RULE (REMEDIES). Some states (e.g. California)
allow attorney fees to be awarded to a prevailing party under a private attorney general theory
where private legal action is necessary to protect important public interests, a large number of
parties benefit and there is a substantial burden on the plaintiff.
27. QUANTUM MERUIT (REMEDIES). “Quantum meruit” is a general term for the amount a
Court of equity may award in equitable restitution to either prevent unjust enrichment or else
to prevent frustration of reasonable expectations , usually based on an IMPLIED-IN-LAW
CONTRACT theory. (See IMPLIED-IN-LAW CONTRACT.)
28. QUASI-CONTRACTS (REMEDIES). “Quasi-contract” is a term with no clear meaning.

Some use it to mean implied-in-law contracts and others use it to mean any implied contract.
29. RESCISSION, LEGAL (REMEDIES). LEGAL RESCISSION is the act of a contract party
legally declaring the contract void, perhaps for failure of a condition.
30. RESCISSION, EQUITABLE( REMEDIES). EQUITABLE RESCISSION is the act of a

Court (judge) declaring a contract void.
31. RESTITUTION (REMEDIES). The goal of RESTITUTION is to restore the parties to status
quo. Under contract law, a contract may be LEGALLY RESCINDED (voided) by a party in
some circumstances and LEGAL RESTITUTION awarded by right. Under both contract and
tort law, if EQUITABLE JURISDICTION exists, a Court of equity may award EQUITABLE
RESTITUTION to prevent unjust enrichment or frustration of reasonable expectations.
32. SPECIFIC PERFORMANCE (REMEDIES). SPECIFIC PERFORMANCE may be ordered

under a contract if the property or services involved are unique. Real property is generally
presumed to be unique, and specific performance of a contract for the sale of land is generally
granted. However, no specific performance of personal services can be obtained because of the
13th Amendment prohibition of involuntary servitude.
33. UNCLEAN HANDS (REMEDIES). The doctrine of UNCLEAN HANDS is an

EQUITABLE DEFENSE that bars a plaintiff from bringing a claim in equity if they have
acted wrongfully on the rationale that one who “seeks equity” must “do equity”. However, the
court will recognize "self help" as a legal remedy if it is reasonable and necessary.
34. VOLUNTEER (REMEDIES). A defense to an IMPLIED-IN-LAW CONTRACT is that a

party bestowing benefit on another had no reasonable expectation of reimbursement because
they were a VOLUNTEER or intermeddler.
46
Appendix B: Sample Answers

The sample answers are presented in italics. Comments are in [square brackets and plain text]. An
explanation follows each answer.
Sample Answer 15-1: Specific Performance, Consequential Damages,

Substantial Performance
Ramirez v. Richerfeller
1. NON-CONFORMING GOODS - Does the UCC apply?

Under contract law Article 2 of the UCC governs contracts for the sale of goods. Goods are all
things moveable at the time of identification to the contract. The PERFECT TENDER RULE of the
UCC allows a buyer to reject goods that fail to conform to the terms of the contract.
Here the contract was not for a sale of goods because Ramirez was hired to paint a “mural on the
wall”. A mural painted on a wall would not have been movable. Therefore, the contract was for
the personal services or Ramirez, not a contract for a sale of goods. Ramirez cannot unilaterally
convert the nature of the contract from a service contract into a sale of goods by creating a
movable painting where an immovable one was agreed upon.
Since this is not a contract for a sale of goods, the UCC does not apply, and the perfect tender
rule does not apply either.
Since the perfect tender rule does not apply Richerfeller cannot refuse to pay on a claim of "non-
conforming goods".
2. Can Richerfeller obtain SPECIFIC PERFORMANCE?

Under contract law a Court of equity has discretion to grant an order of SPECIFIC
PERFORMANCE to a non-breaching buyer if an award of a money judgment would be an
inadequate remedy because the PROPERTY or SERVICES promised by the breaching seller are
unique. However, no specific performance of personal services by an individual person can be
obtained because of the 13th Amendment prohibition of involuntary servitude.
Here the services of Ramirez are unique because he is a "famous leftist Mexican artist" who paints
"unique brightly colored frescos." The main value of the mural is the fact that it is being painted
by Ramirez, himself, so Richerfeller cannot simply have some unknown artist modify the painting.
But even if Ramirez has a unique style, money damages might compensate Richerfeller because
Ramirez is not the only artist that could paint a mural suitable for Richerfeller Center. Clearly
Richerfeller could have some other artist of equal talent and stature paint another mural that
could meet his satisfaction. Since other artists are probably available, there would probably be
some amount of money sufficient to compensate Richerfeller for the substitution of another artist's
works in place of the work by Ramirez.
Furthermore, Ramirez' services are personal services and he has already spent "months of
backbreaking effort." Under the 13th Amendment Ramirez cannot be required to work
involuntarily.
47
Therefore, Richerfeller cannot obtain specific performance.
3. Can Richerfeller obtain CONSEQUENTIAL DAMAGES?

Under HADLEY v. BAXENDALE consequential damages can be awarded to a non-breaching
party for lost profits on collateral contracts that fail as a result of a contract breach if they were
known to or could have been contemplated by the breaching party at the time of the contract,
caused by the breach of the contract, couldn't be avoided by the non-breaching party, and are
certain in amount.
Here it is not clear that Ramirez knew or could have known at the time he agreed to paint the
mural that if he breached the contract Richerfeller would lose rental income from prospective
tenants. Although Ramirez was aware Richerfeller wanted "new tenants" to be able to "view the
mural" when they moved into Richerfeller Center, there is no evidence Ramirez knew that
Richerfeller would not let tenants move into the building until the mural was completed.
Further, the lost rentals here were not unavoidable. Richerfeller clearly could have allowed
tenants into the building. He could also have covered the painting or removed it from the lobby.
Finally, the lost profits are neither caused by Ramirez' breach nor certain in amount because the
lost profits are actually being created by Richerfeller's "outrage".
Therefore, Richerfeller cannot recover consequential damages.
4. Can Ramirez get paid based on SUBSTANTIAL PERFORMANCE?

Under contract law, a breaching party has given SUBSTANTIAL PERFORMANCE if the non-
breaching party has substantially received the benefit of the bargain. Where a party has
substantially performed, they are entitled to reimbursement under the contract, less an offset
sufficient to compensate the non-breaching party for any minor breach that has occurred.
Here the benefit of the bargain to Richerfeller was that he would obtain a mural that "satisfied"
him. Since he is reasonably and sincerely "outraged" and "insulted" he did not receive the benefit
of the bargain. Therefore, Ramirez has breached on his promise to deliver a satisfactory product.
The market value of "$1 million" does not prove substantial performance because it is unrelated to
the benefit Richerfeller sought from the contract. Richerfeller was not having the painting done for
resale purposes or to make a profit. He was having it done to "grace the lobby" of his new office
complex. Since the painting does not satisfy Richerfeller and is of "no value" to him, he has not
received the benefit of the bargain.
Moreover, Ramirez did not even paint a “mural on the wall” as originally agreed. Instead he
painted on “canvas”. Since Ramirez was known for painting “frescos” on “plaster” it may be
argued that Ramirez materially breached the contract simply because he did not deliver the type
of artwork agreed upon.
Therefore, Ramirez has not substantially performed and Richerfeller is under no obligation to pay
Ramirez anything under the contract.
48
5. Can Ramirez get the painting to prevent UNJUST ENRICHMENT?

Under contract law, a party that has committed a major breach of contract has no legal right to a
remedy and can only plead equity. A Court of equity has discretion to award a remedy of
equitable restitution to a party that has committed a major breach of contract based on the
equitable theory (cause of action) of IMPLIED-IN-LAW CONTRACT when the moving party (the
breaching movant) has acted to bestow benefits on the other party (the non-breaching respondent)
with a reasonable belief they would be compensated in return. The Court may act to prevent
frustration of the movant’s reasonable expectations or to prevent unjust enrichment to the non-
breaching party.
Here Ramirez has gone through "months of backbreaking effort" to bestow contract benefits on
Richerfeller with a reasonable expectation he would be paid under the terms of the contract. And
his efforts have left Richerfeller with a painting with a market value of $1 million. Although
Richerfeller says the painting has no value to him, it has monetary value. Objectively the market
value of the painting is $1 million.
If Richerfeller returns the painting to Ramirez, he will be left in the position he was in before the
contract was formed and no worse off. And Ramirez will be compensated with the fruits of his
labor, which Richerfeller admits has no value to him.
Therefore, a Court of equity may award Ramirez possession of the painting in equitable
restitution.
[ANSWER EXPLANATION: The phrase “moveable at the time of identification to the contract”
means goods are things that are moveable when they can be identified as being “the things being
sold” under the contract. At the earliest that would be when the seller has finished creating the
goods, and at the latest that would be when title passes from the seller (maker) to the buyer. The
fact something being sold is not moveable (and may not even exist) when the contract is executed
by the parties (when they first agree to be bound to the contract) is entirely irrelevant.
Contracts for personal services (labor) by an individual (a human being) are not subject to specific
performance under the 13th Amendment, but services by a group of people (a corporation,
company or association) can be ordered by specific performance.
Damages, including consequential damages, should never be awarded if the non-breaching party
had some culpability in causing part of the losses complained of.
If contracts unequivocally promise a non-breaching buyer "satisfaction" that becomes an express

condition of the agreement. Personal satisfaction to the buyer may also be an implied material
condition if the facts make it clear anything less would deprive the buyer of the benefits of the
bargain. After that if the buyer is honestly and reasonably dissatisfied there has been a major
breach of the contract and the buyer has no legal obligation to perform. The breaching party can
only plead equity. The applicable equitable theory (cause of action) is implied-in-law contract
because the parties seeking a remedy have acted with a reasonable, good faith belief they would be
compensated in return. The Court would typically grant a remedy to prevent frustration of the
reasonable (commercial) expectations of the party that has performed. Often it is said the Court
would act to prevent unjust enrichment, but that is wrong because the non-breaching buyer has
done nothing “unjust”.]
49
Sample Answer 15-2: TRO Appeal, Overbroad Injunctions, Unclean Hands,

Laches
1. Can the TRO be APPEALED?

A TEMPORARY RESTRAINING ORDER (TRO) is a form of provisional injunctive relief. A TRO
can be obtained on an ex parte application and generally lasts for 15 days. A TRO can be
appealed in the meantime only if the order raises First Amendment issues or constitutes a de facto
preliminary injunction.
Here the TRO granted does raise First Amendment issues because it prevents McClenaghan and
his followers from "coming within 200 yards" of Wellby's office or "saying anything" to disturb
Wellby's patients. These provisions are restrictions on the First Amendment guarantees of freedom
of assembly and freedom of speech.
Therefore, McClenaghan has a right to immediately appeal this TRO.
2. Is the TRO OVERBROAD?

Injunctive restraints on First Amendment rights must be narrowly tailored and necessary to effect
a compelling state interest.
Here there is a compelling state interest in protecting Wellby from violence, nuisance, trespass
and criminal acts by McClenaghan and his followers. But the reviewing court would probably find
the TRO reference to "200 yards" overbroad because it is not necessary to keep the protesters that
far away from Wellby's office to protect him. Further, the order not to "say anything that would
disturb Wellby's patients" is overbroad because it does not state with specificity the particular
statements that must be avoided. The prohibition of saying "anything" is over-inclusive, and would
unnecessarily prohibit many forms of protected speech.
Therefore, the TRO is overbroad and not narrowly tailored to a necessary scope.
3. Does Wellby have ADEQUATE LEGAL REMEDIES?

A plaintiff seeking EQUITABLE RELIEF must show that EQUITABLE JURISDICTION exists.
This requires showing that inadequate legal remedies exist, irreparable harm is threatened, and
the balance of hardship and/or public interest favors the plaintiff and the movant would probably
be successful in the underlying action. The requested relief must be feasible for the court.
Here Wellby seeks equitable relief because he has sought a "restraining order". His legal
remedies are inadequate because McClenaghan put all his assets in a "trust", and the prior
judgment against him is uncollectible. Since a judgment could not be collected, it would neither
compensate Wellby nor deter further bad acts by McClenaghan. Further, Wellby is faced with the
prospect of having to bring repeated legal actions because McClenaghan is "continuing to
picket."
And Wellby is threatened by irreparable harm because McClenaghan has "interfered with his
ability to treat patients", poured "foul-smelling liquids" in his office, "destroyed his sprinklers"
and "set his office on fire."
Therefore, Wellby does not have adequate legal remedies and injunctive relief is appropriate.
50
4. Does the BALANCE OF PUBLIC INTEREST favor McClenaghan?

As stated above a plaintiff seeking EQUITABLE RELIEF must show that the balance of hardship
and/or public interest favors the plaintiff. The public interest is strongly in favor of protecting first
amendment guarantees of freedom of religion, speech and assembly. However, there is also a
strong public interest in preventing nuisance, crime and violence.
Here the balance of hardship requires looking at the interest of each party. McClenaghan has a
guaranteed right to assembly and speech. But Wellby has a right to be free from nuisance and
trespass, and he has a right to be safe from threats of vandalism. McClenaghan does not have any
right to trespass onto Wellby's land, destroy his property or interfere with his ability to treat
patients.
Freedom of religion is not involved here because the TRO sought by Wellby does not interfere
with McClenaghan's free exercise of religion. To the extent that the picketing is religiously
motivated conduct, the TRO does not significantly intrude on that conduct sufficiently to rise to a
Constitutional issue.
Therefore, the balance of public interest is to provide adequate protection to Wellby in the manner
that least infringes upon the rights of McClenaghan.
5. Can McClenaghan raise the defense of UNCLEAN HANDS?

A Court of equity will deny equitable relief to a plaintiff shown to have acted wrongfully on the
rationale that one who “seeks equity” must “do equity”. However, the court will recognize "self
help" as a legal remedy if it is reasonable and necessary.
Here Wellby is seeking equitable relief because he seeks a "restraining order". Wellby has acted
wrongfully because he tried to make the "protesters get wet." This would have been wrong
because it constitutes a tortious battery.
But the court would find Wellby's act reasonable in comparison with the acts of McClenaghan
because Wellby's only tried to get protesters "wet" while McClenaghan's protesters "set fire" to
his office, "poured foul-smelling liquid" in his office, "trampled" his flowers and "destroyed" his
sprinklers. The court would also find Wellby's actions were necessary as he had previously
availed himself of all legal remedies and found them inadequate.
Therefore, the court would not deny Wellby relief under a claim of unclean hands.
6. Is Wellby barred by LACHES because he first brought suit?

Under the DOCTRINE OF LACHES, a plaintiff may be barred from relief if he has unreasonably
delayed seeking relief, resulting in prejudice to the defendant.
Here Wellby did not unreasonably delay seeking relief because he first sought relief through legal
remedies. There was no prejudice to McClenaghan because he still has all possible defenses
available to him.
And Wellby did not waive his right to seek equitable relief by first seeking legal remedies, and it
was the inadequacy of legal remedies that now prompts him to seek injunction.
Therefore, Wellby is not barred by laches.
51
[ANSWER EXPLANATION: This last issue in this answer teaches the most important lesson. I
was trying to get an issue of laches in this fact pattern, and could not see any reasonable way to do
it. Therefore, I just made up some nonsense. Your professors may do this to. So, if part of the law
school question you face is illogical, consider that the professor may simply have wanted to test
your knowledge of the legal rule mentioned and couldn't figure out any better way to work it into
the facts.
This answer also suggests that the "adequacy" of legal remedies depends on the ability of a
plaintiff to actually collect on a judgment. This is somewhat misleading. Courts of law generally
consider the award of a money judgment to be an adequate remedy for past wrongs even if the
prevailing party (the judgment creditor) is unable to collect on the judgment. So the mere fact that
a defendant is "judgment proof" is NOT sufficient to convince a Court that legal remedies (award
of money judgments) for past wrongs are inadequate.
Rather, the adequacy of awarding a money judgment is only a consideration for Courts when
movants seek injunctions to prevent wrongful acts in the future.
Finally, this answer illustrates that reasonable acts of self defense, or self help, may not rise to the
level required to support an "unclean hands" defense.]
52
Sample Answer 15-3: Unclean Hands, Estoppel, Laches, Constructive Trust,

Equitable Lien
1. Can Smith raise a claim of ESTOPPEL?

Under the doctrine of ESTOPPEL a party may be estopped from pursuing a claim, bringing an
action or raising a defense if they 1) made express or implied representations or concealed
material facts, 2) with an intent to cause reliance by the other party, 3) and their behavior caused
reasonable reliance, and 4) an injustice will result if the court allows assertion of a position
contrary to the party's prior representations.
Here Jay intentionally concealed a material fact when he "welcomed Smith to the neighborhood"
and "never said a word" as Smith cleared Jay’s land and built a house on it. Jay intended reliance
by Smith because he just "smiled" and stood by silently. Smith would argue his reliance on Jay’s
behavior was reasonable because of the placement of the sign and the behavior of Jay. But Jay
would argue Smith should have hired a surveyor and should not have simply relied on the
placement of the sign.
In any event an injustice would occur if Jay is not estopped from evicting Smith because he would
loose his investment, and it would be unjust for Jay to reap an enrichment from his own deceptive
behavior.
Therefore, Smiths may be able to use estoppel as a defense to prevent Jay from evicting him.
2. Can the Smiths obtain a declaration of CONSTRUCTIVE TRUST?

A Court of equity has discretion to declare disputed property held by a party to be held in
CONSTRUCTIVE TRUST for another party along with all profits and income that the property
has produced.
Here Jay holds legal title to the property in dispute because it is part of his original “40 acres”
but he would enjoy an unjust enrichment if he were allowed to keep or sell Smith’s house.
Although Smith only invested $60,000 in the house, the house now accounts for $100,000 of the
total property value. Under a constructive trust theory this entire amount is attributable to the
work and investment by Smith.
Therefore, Smith may be able to get the Court to declare Jay holds the house in constructive trust
for Smith as security for his claim of $100,000 against the property.
3. Can Smith obtain an EQUITABLE LIEN?

A Court of equity has discretion to award a party an EQUITABLE LIEN in disputed property held
by another that is superior to other claims to the extent the property was enhanced or improved by
the efforts of the movant and the lien is necessary to prevent injustice.
Here the property was enhanced or improved by Smith because he "cleared" it and "built a
house." Smith invested $60,000 in the house and his efforts improved the value of the property by
$100,000. So the court may grant him an equitable lien in that amount that would be superior to
the claim of Ace Mortgage.
Therefore, Smith may be granted an equitable lien for $100,000 superior to the claim of Ace.
53
4. Can Smith raise the EQUITABLE DEFENSE of UNCLEAN HANDS?

A Court of equity has discretion to deny equitable relief to a moving party (movant) that has acted
wrongfully and seeks to benefit from those acts on the rationale that one who “seeks equity” must
“do equity”.
Here Jay effectively seeks equitable relief because he seeks an "order" of the court removing
Smith from his land. Smith would raise the defense that Jay has unclean hands because he
deliberately "remained silent" as Smith built on the wrong parcel, seeking wrongfully benefit from
Smith’s error.
Therefore, Jay may be barred from equity because of unclean hands.
5. Can the Smiths raise the EQUITABLE DEFENSE of LACHES?

Under the DOCTRINE OF LACHES a Court of equity has discretion to deny relief to a party that
unreasonably delayed seeking relief, resulting in prejudice to opposing parties.
Here Jay unreasonably delayed in preventing Smith from building on his land because he just
"smiled" and stood by "never saying a word" while Smith cleared the land and built a house. And
this caused prejudice to Smith because he stands to lose his house and the benefit of his efforts.
Therefore, Smith can raise a defense of laches.
[ANSWER EXPLANATION: In all discussion of equitable remedies it is important to stress the

Court has discretion to grant a remedy, but parties have no “right” to an equitable remedy. It is not
likely that a Court would order the land and house transferred to Smith because it was Smith’s
fault that he built in the wrong place. Smith’s only compelling argument is that he should receive
equitable restitution (in the form of a money judgment) for his efforts because otherwise Jay will
reap an unjust enrichment for his deliberate silence and misleading behavior. The CALL simply
does not ask you to discuss that.
If Smith could prove that Jay moved the sign or affirmatively acted in any other way to deceive
him he would have the legal cause of action for deceit or fraud. But if he cannot prove that he has
no tort cause of action against Jay and can only plead equity because Jay had no affirmative duty
to tell him he was making a mistake.
Jay is the movant seeking to eject Smith, the respondent. Jay’s cause of action against Smith is
more at law than equity because eviction or ejectment is often a right set forth in statute. But
Smith would have no legal defense and can only plead equity.
In trying to stop Jay from evicting him Smith’s equitable argument is more in the nature of
“estoppel”, but he can also raise the equitable defenses of laches and unclean hands. But when
Smith asks the Court to declare a constructive trust or award an equitable lien Smith is the movant.
The true importance of an equitable lien is that in addition to granting Smith a lien on the property
the Court can also declare it to be superior to Ace’s claim. But for that it would be relatively
worthless because the total amount of the claims of Ace and Smith exceed the value of the
property.]
54
Sample Answer 15-4: Injunction, Collateral Attack, Defenses to Contempt

1. Does the Court have EQUITABLE JURISDICTION to enjoin a CRIME?
A plaintiff seeking EQUITABLE RELIEF must show that EQUITABLE JURISDICTION exists
because there are inadequate legal remedies and irreparable harm is threatened.
Here there was an adequate legal remedy because "disturbing the peace" was a "misdemeanor".
Since that would be punishable by arrest or citation, there would appear to be an adequate
remedy under the criminal statutes.
And there was no clear showing of irreparable harm since the Chief only "thought" there might be
trouble and cited only "rumors" of a possible riot.
Therefore, the court did not appear to have equitable jurisdiction.
2. Should Chief Goldberg have been required to post a BOND?

Injunctions may be in the form of a TEMPORARY RESTRAINING ORDER (TRO), a
PRELIMINARY INJUNCTION or a PERMANENT INJUNCTION. TROs and PRELIMINARY
INJUNCTIONS are provisional relief that normally require posting a BOND to compensate the
enjoined party if the injunction is improperly obtained. However, a court of equity may waive the
requirement of a bond where one of the parties is a government entity.
Here one of the parties was a government entity because Goldberg was acting as Chief of the
"Campus Police."
Therefore, no bond was required for this TRO.
3. Will a COLLATERAL ATTACK be allowed on the grounds of BAD FAITH RESTRAINT OF

CIVIL RIGHTS?
A party that violates an injunction may be held liable for contempt, and a COLLATERAL
ATTACK on the original injunction in a different court will only be allowed on the grounds of 1)
jurisdiction, 2) that the order was a bad faith restraint on First Amendment rights, or 3) that the
defendant was denied an opportunity to appeal.
Here the issue involves First Amendment rights because the "gala" was an assembly of
individuals, and the First Amendment guarantees the right of "assembly." The First Amendment
also guarantees freedom of expression. Since this was a "Nazi" group, an assembly of people for
purposes of political expression is implied. Therefore, this TRO was clearly a restraint on First
Amendment rights.
Also action by Chief Goldberg is presumably state action because he is a "Campus Policeman" at
a "University." In any event the issuance of the TRO was a state action. The First Amendment
guarantees are extended to state actions by the Fourteenth Amendment.
Also the restraint in this case was in bad faith because Chief Goldberg "falsely" claimed there
were rumors of a riot.
Therefore, this TRO is a state action subject to collateral attack as a bad faith restraint on First
Amendment rights.
55
4. Was the TRO an IMPERMISSIBLY VAGUE ORDER?

Under the law of remedies a party that violates an injunction may be held liable for contempt. An
accusation of contempt can be defended on the grounds that 1) the court that issued the order
lacked jurisdiction, 2) that there was no willful violation of the court order, 3) that the order was
impermissibly vague, or 4) that the defendant had no notice of the injunction.
Here the order was vague because it did not specifically say the "gala" was to be cancelled, and
the order did not describe with specificity the types of activities the Young Nazis were prohibited
from having. Rather, the order said that only activities "likely to result in disturbance of the
peace" were to be cancelled.
Since the Young Nazis were left in doubt concerning which activities to cancel, they could not tell
whether or not holding the "gala" was an act that would subject them to a contempt order.
Although Police Chief Goldberg told Ross, "I am canceling your ball tonight," the court's order
must speak for itself.
Therefore, the TRO was impermissibly vague.
5. Did the Young Nazis have a right to APPEAL THE TRO?

Under the law of remedies TROs cannot be appealed unless the order raises First Amendment
issues or constitutes a de facto preliminary injunction.
Here the TRO did raise First Amendment issues because it prohibited an assembly of people at a
"gala". And the TRO impliedly impacts free speech and political expression because this is a
"Young Nazi" group. Further, this TRO constituted a de facto preliminary injunction because it
was issued on the immediate eve of the "gala" and without immediate appeal it would effectively
prevent the "gala" from ever taking place.
Therefore, the Young Nazis had a right to immediate appeal of this TRO.
6. Can the Young Nazis defend based on LACK OF NOTICE?

Under the law of remedies parties that violate an injunction may be held liable for contempt, but
they can defend violation of the order on the grounds that they did not willfully violate the order
or had no notice of the injunction.
Here the people cited at the gala were "completely unaware" of the order because only Ross was
put on notice. And Diana had just arrived at the "gala" and was not a participant.
Therefore, a defense can be raised based on lack of notice and willful violation of the order.
[ANSWER EXPLANATION: Generally injunctions are not allowed to prevent criminal acts
because there is an adequate legal remedy provided by statute and the court would be intruding
into the authority reserved for the legislature.
For a finding of contempt it must be clear that the defendant was made aware of the order, and that
the order was clear enough that the defendant's act was clearly a willful violation of the order.]
56
Sample Answer 15-5: Implied Contracts, Lodestar, Constructive Trust,

Equitable Lien
1. Can Larry recover under a claim of IMPLIED-IN-LAW CONTRACT?

An IMPLIED-IN-LAW contract is an equitable theory that may give a Court discretion to award
compensation to a party that acts to convey benefits with a reasonable expectation of being
compensated in return. The motivation of the Court would be to prevent frustration of reasonable
commercial expectations.
Larry would argue he acted with a reasonable expectation of compensation because he was a
"lawyer" and acting within the scope of his occupation. But it can equally be argued that he was
acting as a volunteer without any reasonable expectation that anyone was going to pay him.
Therefore, a Court may deny Larry’s request for payment.
2. How might Larry's ATTORNEY FEES be calculated?

If a Court ordered Larry to be compensated, his fees might be calculated using the LODESTAR
approach under which attorney fee awards are based on reasonable rates multiplied by a
reasonable number of hours. The reasonableness of rates is determined by the difficulty of
representation, the experience of the attorney and the average rates charged by other attorneys
for similar services.
Here Larry charged $150 per hour for 10 hours of effort. The court would have to determine
whether this was a reasonable rate and a reasonable number of billed hours.
Therefore the fees might be calculated on the Lodestar approach.
3. Can Anne bring an action based on IMPLIED-IN-FACT CONTRACT?

Under contract law, an IMPLIED-IN-FACT contract may be found when the defendant knowingly
received benefits from the plaintiff and the plaintiff reasonably expected compensation in return.
Compensation is generally based on the amount the plaintiff reasonably expected to be paid to
prevent frustration of reasonable commercial expectations.
Here Slick Willy knowingly received benefits because he "laughed at the windfall he was getting."
And it would have cost Slick "$20,000" to get the same services from a "building contractor."
However, it is arguable that Reza was not acting with a reasonable expectation of compensation
in return because he was mentally ill.
Therefore, Anne can bring an action on behalf of Reza against Slick Willy for $20,000 based on an
implied-in-fact contract theory.
4. Can Anne bring an action based on DETRIMENTAL RELIANCE?

If Ann cannot establish the existence of an implied-in-fact contract Reza has no legal cause of
action and can only plead equity. DETRIMENTAL RELIANCE may be pled when a respondent 1)
made representations or deliberately concealed material facts, 2) with intent to cause reliance by
the movant, 3) the movant did reasonably rely, and 4) injustice will result if the court does not act
to compensate the movant or allows respondents to act contrary to their prior representations.
57
Here Slick Willy made representations to deliberately cause Reza to work on his land because he
said the “Devil would get him”. And he did that to reap an unjust enrichment because Reza’s
efforts in response increased the value of his land by $30,000.
Therefore, Anne can plead for equitable restitution for Reza in the amount of $30,000.
5. Can Anne seek a CONSTRUCTIVE TRUST in the property?

If a movant can show EQUITABLE JURISDICTION exists, a finding of CONSTRUCTIVE TRUST
may be made against disputed property held by a party that has wrongfully gained possession
and/or title. It is considered held in trust for the true owner who can demand return of the
property along with all profits and income that it has produced.
Here Anne "claimed an interest" for Reza in Slick's property because she "filed an action" before
the property was conveyed to Bonnie. Although the property was conveyed to Bonnie, it may be
considered "held in trust" for Reza unless Bonnie can present a valid defense to the claim.
Therefore, Anne can seek a finding of constructive trust against the property.
6. Can Anne seek an EQUITABLE LIEN against the property?

A Court of equity may award an EQUITABLE LIEN against property held by a party that is
superior to other claims to the extent the property was enhanced or improved in value by the
movant if it is necessary to prevent injustice.
Since Anne "claimed an interest" for Reza in Slick's property when she "filed an action" she may
claim an equitable lien against the property after it has been conveyed to Bonnie.
Therefore, Anne may seek a claim of equitable lien against the property.
7. Can Bonnie raise the defense of BONE FIDE PURCHASER?

Under the law of remedies the title to property may not be recoverable from a BONE FIDE
PURCHASER FOR VALUE that purchased the property without knowledge that the seller of the
property had obtained it improperly.
Here Bonnie purchased the property because she "bought" the house. And she had no actual
knowledge because she "had no idea there was any dispute." Ann may argue she had constructive
knowledge because she bought the "next week" after "Anne filed an action". But generally filling a
Court action does not establish constructive notice of Reza’s claim against the house. Generally
Anne must file a “lis pendens” with the County Recorder in the county where the house is located.
Therefore, Bonnie bought without notice of Reza's claim and can raise the defense of a good faith
purchaser for value without knowledge.
[ANSWER EXPLANATION: This answer shotguns numerous remedy ideas, some of them pretty
weak and arguable both ways. Ambulances that take comatose accident victims to the hospital are
bound to get paid, but attorneys that file actions on their own initiative are more likely to be seen
as “volunteers”. Claims against real property properly filed with county recorders give public
notice. Claims filed in courts do not.]
58
Index
Index
Incidental damages, 27
Injunctions, permanent, 35, 45, 55
A Injunctions, preliminary, 35, 45, 55
American Rule, 36, 43 Intended issues, 5, 8
Attorney fees, awards of, 36, 43 IRAC, defined, 1
Issues, hinting words, 8
Issues, required, 5
B Issues, spotting, 5
Budgeting time on exams, iv, 11
J
C Judgment creditors and debtors, 27
CALL of the question, 2, 8
Collateral attacks, 36, 43, 44, 55 L
Common Fund Theory, 36
Conclusionary analysis, 18 Laches, 34, 51, 54
Consequential damages, 27 Legal replevin, 31, 45
Constructive trusts, 28, 58 Legal restitution, 28
Contempt of court, 36, 45 Lodestar approach, 36, 43
Contempt, defenses, 6, 36
Counting issues, 2, 11 M
Covenants running with the land, 27
Movants, defined, 26
D
N
Damages, consequential, 27
Damages, defined, 27 Nailing the elements, iii, 14
Damages, expectation, 27 Non-issues, 8
Damages, incidental, 27
Damages, reliance, 27
Detrimental reliance, 34, 57
P
Paddling, 21
E Permanent injunctions, 35, 45, 55
Preliminary injunctions, 35, 45, 55
English Rule, attorney fees, 44 Private Attorney General Theory, 36
Equitable defenses, 28 Promissory Estoppel, 15, 34, 44, 53
Equitable jurisdiction, defined, 32, 44, 50, 55 Provisional relief, 35, 45, 55
Equitable liens, 10, 33, 44, 53, 58 Punitive damages, 27, 28, 30, 31
Equitable rescission, 32, 46
Equitable restitution, 28
Equity, Detrimental Reliance, 34, 57
Q
Estoppel, 15, 34, 44, 53 Quantum Meruit, 11, 29, 30
Expectation damages, 27 Quasi-contract, 46
F R
Frustration of reasonable expectations, 30 Recklessness, defined, 31
Red herrings, 8
G Reliance damages, 27
Replevin, equitable, 33, 44
Grading Key for exams, 8, 10 Replevin, legal, 31, 45
Gross negligence, defined, 31 Required issues, 5
Rescission, equitable, 32, 46
Respondents, defined, 26
H Restating facts, 19
Hinting words for issues, 8 Restitution, 28
I S
Implied-in-Fact Contract, defined, 29 Specific performance, 26, 28
Implied-in-Law Contract, defined, 30
59
T Y
Temporary restraining orders (TRO), 35, 45, 50, 55 Yellow brick road exam approach, 20
U
Unclean hands, 34, 46, 51
Unjust enrichment, 30, 32
60
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NAILING THE BAR

HOW TO WRITE ESSAYS FOR

WHAT to Say and HOW to Say It!

Tim Tyler Ph.D.

LAW SCHOOL AND BAR EXAMS

What to Say and How to Say It.

Tim Tyler, Ph.D., J.D.

Published by Practical Step Press

What to Say and How to Say It

EVERYTHING you NEED to SUCCEED is provided without unnecessary baggage.

CHAPTER 2: SPOT AND OUTLINE THE ISSUES!................................................................................................ 2

CHAPTER 3: ISSUE SPOTTING ............................................................................................................................... 5

CHAPTER 4: AVOID NON-ISSUES, RED HERRINGS AND SPLITS.................................................................. 8

CHAPTER 5: ORGANIZING THE ANSWER .......................................................................................................... 9

CHAPTER 6: ISSUE STATEMENT STRUCTURE................................................................................................ 10

CHAPTER 7: BUDGETING TIME........................................................................................................................... 11

CHAPTER 8: PREFACE RULES WITH CITATION OF AUTHORITY ............................................................ 13

CHAPTER 9: NAILING THE ELEMENTS – THE HEART OF THE ESSAY ................................................... 14

CHAPTER 10: DON'T GIVE "CONCLUSIONARY" ANALYSIS....................................................................... 18

CHAPTER 11: DON'T "RESTATE FACTS".......................................................................................................... 19

CHAPTER 12: AVOID “PADDLING” ..................................................................................................................... 21

CHAPTER 13: TEST TAKING MECHANICS........................................................................................................ 22

APPENDIX A: RULES AND DEFINITIONS .......................................................................................................... 43

APPENDIX B: SAMPLE ANSWERS ....................................................................................................................... 47

Chapter 1: The IRAC Approach

1) A clearly identified ISSUE statement phrased as a question.

Chapter 2: Spot and OUTLINE the ISSUES!

EXAMPLE QUESTION OUTLINE

Common Remedies Issues –

Adequacy of legal remedies

Chapter 3: Issue Spotting

Issue Spotting Hints

20. Determined tortfeasor: Basis for injunction because legal damages

ENCROACHMENT, EJECTMENT, ZONING

DEFENSES TO CONTEMPT ORDER

ISSUE SPOTTING EXAMPLE:

Issues: 1) What law applies? [The UCC.]

Chapter 4: Avoid Non-Issues, Red Herrings and Splits

Example of a Red Herring. Suppose the question states:

Chapter 5: Organizing the Answer

For example, if the question asks,

Organization of a REMEDIES Answer. If a REMEDIES question does not otherwise specify a

Chapter 6: Issue Statement Structure

For example, if the question asks,

REMEDIES Issue Examples:

Chapter 7: Budgeting Time

IT IS ABSOLUTELY ESSENTIAL to keep on schedule while writing essays. You must

QUESTION OUTLINE WITH TIME SCHEDULE

STICK TO SCHEDULE. It does absolutely no good to develop a time schedule if it is not

Chapter 8: Preface Rules with Citation of Authority

Chapter 9: Nailing the Elements –

1) State an ISSUE raised or suggested by the given facts,

A heart of NAILING THE ELEMENTS consists of 2 parts:

1) State the RULE with clearly stated ELEMENTS to be proven, and

1. Does Paul have a cause of action for BREACH OF CONTRACT?

Follow this order:

Examples of Legal Rules with Elements Underlined:

1) Under the law of remedies EQUITABLE JURISDICTION requires a showing of

Remember, NAIL OR FAIL!

"Here [the ELEMENT of law is PROVEN] BECAUSE "[some FACT is given]".

Instead, just say,

RIGHT: "Therefore, the plaintiff would be able to obtain specific performance."

If necessary, give a “conditional” conclusion: