Explain Attainability of Client Objectives - Next Generation Bar Exam
- What makes a client objective legally unattainable?
- A legal rule that prohibits the result or denies a remedy for it on the client's facts. Explaining the rule allows the client to adjust objectives or choose alternatives.
- A client wants both rescission of a contract and damages for its full performance. Why are the objectives inconsistent?
- Rescission undoes the contract, while expectation damages enforce it. The client must elect between remedies at some point.
- A client wants specific performance of a contract to buy a common commodity readily available elsewhere. Why is the objective unlikely to be attained?
- Damages are an adequate remedy because substitute goods are available. Specific performance requires an inadequate legal remedy.
- What limits a client's objective of relitigating a claim already decided in a final judgment?
- Claim preclusion. A final judgment on the merits bars later suits on the same claim between the same parties.
- What bars a client's objective of enforcing a contract penalty clause?
- Liquidated damages that are an unreasonable penalty are unenforceable. The amount must be a reasonable estimate of anticipated or actual harm.
- What limits a client's objective of recovering attorney fees from the losing party in most US litigation?
- The American rule, under which each party bears its own fees absent a statute or contract. Fee-shifting statutes and contractual fee provisions are exceptions.
- What makes a client's objective of compelling an employee to perform personal services unattainable?
- Courts will not order specific performance of a personal service contract. An injunction against working for a competitor may be available instead.
- What limits a client's objective of keeping an attorney's communications with a third-party witness confidential under the attorney-client privilege?
- The privilege covers only confidential communications between client and lawyer for legal advice. Work-product protection may apply to some materials instead.
- A client wants a court to order a newspaper not to publish a truthful story about a matter of public concern. Why is the objective unattainable?
- A prior restraint on publication is presumptively unconstitutional under the First Amendment. The government bears a heavy burden to justify any prior restraint.
- What remedy limit applies when a client seeks punitive damages for breach of contract?
- Punitive damages are generally not recoverable for breach of contract. An independent tort, such as fraud, may support punitive damages.