Chapter 14: How to Conquer Remedies on the California Bar Exam
Remedies on the California Bar Exam
Remedies is regularly tested on the California Bar Exam and is often combined with other subjects. The California Bar Exam often tests Remedies in the same way. In fact, some Remedies essay questions are nearly identical to one another!
Here, we tell you how to approach Remedies on the California Bar Exam, including some of the highly tested issues in Remedies questions.
Remedies on the California Bar Exam
1. First, know how Remedies is tested.
California has virtually always tested general law (rather than California law) on Remedies questions.
When answering Remedies essay, it is helpful to determine the claim that might be raised as well as any remedies that the party might seek. Discuss legal, restitutionary, and equitable remedies. Be sure to analyze legal remedies prior to analyzing equitable remedies. Note that Remedies fact patterns often will specifically ask about the remedy, remedies, or relief that could be granted. Those are your cues that a Remedies issue is being tested.
Remedies is often tested on its own but is sometimes combined with another subject, such as Contracts, Constitutional Law, Torts, Evidence, and/or Professional Responsibility. Note that sometimes Remedies issues appear in Torts and Contracts questions even though the examiners do not classify the question as a Remedies question.
2. Be aware of the highly tested issues.
The State Bar of California tests certain issues repeatedly on Remedies questions. (We have a nice summary of these in our California Bar Exam One-Sheets!)
Some of the most highly tested Remedies issues on the essay portion of the California Bar Exam include the following:
- Compensatory damages, punitive damages, and restitutionary damages in tort: Compensatory damages look to the harm done to the plaintiff and seek to put the plaintiff in the position they would have been in had the tort not occurred. Putative damages seek to punish the defendant and deter future conduct by the defendant or others. Restitutionary damages seek to avoid unjust enrichment by the defendant by allowing the plaintiff to recover the value of the benefit conferred on the defendant.
- Temporary restraining orders (TROs) and preliminary injunctions: (These are tested together so, if you see one, discuss the other!) TROs are emergency orders issued before a preliminary injunction to maintain the status quo until a hearing for a preliminary injunction can be held. The moving party must show that they will suffer an irreparable injury before a preliminary injunction can be obtained and a likelihood that they will prevail on the merits of the underlying claim.
- A preliminary injunction is granted before a full trial on the merits takes place. Courts consider four factors when deciding whether to grant a preliminary injunction: (1) harm (the danger that the party seeking the injunction will suffer irreparable injury if the injunction is not granted); (2) courts will evaluate the risk if the injunction is not granted; (3) likelihood that the party seeking the injunction will prevail on the merits; and (4) public interest harm if the injunction is granted (mnemonic = HELP).
- Compensatory damages in contracts: Expectation damages are calculated as the loss of the value of the breaching party’s performance + incidental damages + consequential damages – expenses saved as a result of the breach.
- Incidental damages are those that relate to avoiding the loss from the breach. Consequential damages are those that a reasonable party would have foreseen at the time of entry into the contract.
- Specific performance in contracts: Instead of receiving money damages, the buyer will receive what they contracted for. Specific performance may be available for land or unique goods.
- Equitable defenses: Unclean hands is a defense if the plaintiff is acting in bad faith with respect to the same transaction and the defendant has been harmed by the plaintiff’s wrongful conduct. Laches is an equitable version of a statute of limitations defense that is available if the plaintiff unreasonably delays in pursuing a claim and prejudice to the defendant results. These two defenses are tested repeatedly on Remedies essays.
3. Be aware of how to approach highly tested Remedies topics.
If you look over past Remedies essays questions, you will notice some patterns.
- When specific performance is tested, the examiners are looking for the following information: Plaintiff must first show (1) a valid contract, (2) all conditions have been met and plaintiff has performed (or is ready to perform) under the contract, (3) the legal remedy is inadequate, (4) it is feasible for a court to enter a decree for specific performance, and (5) the defendant does not have any defenses. Examinees should briefly discuss each of these five things.
- When a constructive trust is tested, an equitable lien is virtually always mentioned with it (even if a constructive trust is the more appropriate remedy). Look at the July 2003 essay and February 2013 essay to see how similar some of these Remedies fact patterns are!
- Certain damages principles are tested repeatedly. For example, damages must be foreseeable and not speculative. The plaintiff must mitigate damages. And punitive damages are not appropriate in negligence cases.
Getting a general approach for what the examiners expect to see when certain issues are tested will help you maximize your score on a Remedies question.
The best way to get good at Remedies essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Remedies is tested and help you to master the highly tested issues.
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Remedies essay questions:
- February 2021 Remedies essay (combined with Contracts): this essay applies the UCC and covers contract formation, the Statute of Frauds, the perfect-tender rule, warranties, revocation of acceptance, expectations, compensatory damages, and rescission (see essay question #2 on the exam).
- July 2017 Remedies essay: this essay applies general law and covers TROs, preliminary injunctions, specific performance, unclean hands, misrepresentation, and unilateral and mutual mistakes (see essay question #3 on the exam).
- February 2017 Remedies essay (combined with Torts): this essay applies general law and covers fraudulent misrepresentation, expectation damages, consequential damages, incidental damages, rescission, restitution, and punitive damages (see essay question #2 on the exam).
- February 2016 Remedies essay: this essay applies general law and covers rescission, mutual and unilateral mistake, unclean hands, laches, and reformation of contract (see essay question #4 on the exam).
Good luck studying for the California Bar Exam!
Go to the next topic, Chapter 15: Torts.
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