Post on 31-Mar-2015
transcript
Courts and LitigationSyllabus Change – Will do Courts first then alternative dispute resolution
The Judiciary’s Role in American Government
Courts -- interpret and apply the law. Judicial review—determining the
constitutionality of laws—the judicial branch acts as a check on the executive and legislative branches of government – Marbury v. Madison
Bush v. Gore (u-Tube clip)Justice Breyer on the US Supreme Court
Basic Judicial Requirements
Before a lawsuit can be brought before a court, certain requirements must first be met. These include:
Jurisdiction• Federal
• State• Subject
Jurisdiction• Federal
• State• Subject
VenueVenue Standing to Sue
Standing to Sue
Venue
Venue has to do with the most appropriate location for a trial, which is usually the geographical area in which the event leading to the dispute took place or where the parties reside.
Standing to Sue
A requirement that a party must have a legally protected and tangible interest at stake sufficient to justify seeking relief through the court system.
The controversy at issue must also be a justifiable controversy, one that is real and substantial, as opposed to hypothetical or academic.
MN tobacco case Toledo Ohio Jeep Plant from Book
Friends of the Earth, Inc. v. Crown Central Petroleum Corp. Friends of the Earth, a not-for-profit corporation dedicated to the protection of the environment, sued the oil company claiming that discharges of storm-water run-off had directly affected “the health, economic, recreational, aesthetic, and environmental interests of FOE’s members.”
End-of-Chapter Q: 3-3Lamar advertising sues over city ordinance restricting the size and placement of signs. Lamar asked for permission and was denied and now wants to sue. Does Lamar have standing?
Trial Courts
State courts: Courts of general jurisdiction
may be called by a variety of names.
Courts of limited jurisdiction include:– Divorce courts– Probate courts– Traffic courts– Small claims courts
Federal courts: Court of general jurisdiction
is the U.S. District court. Courts of limited jurisdiction
include:– U.S. Tax Court– U.S. Bankruptcy
Court– U.S. Court of Federal
Claims
Intermediate Appellate Courts
Supreme Courts
Internet Jurisdiction
Following a Case Through the State CourtsFollowing a Case Through the State Courts
A sample civil court case in a state court would involve the following:
ThePleadings
ThePleadings
PretrialMotionsPretrialMotions
DiscoveryDiscovery
PretrialConference
PretrialConference
TrialTrialPost trialMotions
Post trialMotions
The AppealThe Appeal
Adversarial System
Attorney Represents Client as an Adversary
Judge is Unbiased, Serves to Enforce Rules
Work-Product
The Pleadings
Complaint:– Filed by the plaintiff with the court to initiate the lawsuit;
served with a summons on the defendant.– Default judgment
Answer:– Admits or denies allegations made by the plaintiff; – may assert a counterclaim or – an affirmative defense.
Motion to dismiss:– A request to the court to dismiss the case for stated reasons,
such as the plaintiff’s failure to state a claim for which relief can be granted.
Pretrial Motions
Motion for judgment on the pleadings: Will be granted if the parties agree on the facts and
the only question is how the law applies to the facts. The judge bases the decision solely on the
pleadings.
Motion for summary judgment:
Will be granted if the parties agree on the facts. The judge applies the law in rendering a judgment.
The judge can consider evidence outside the pleadings when evaluating the motion.
Metzgar v. PlayskoolJury decides factsJude decides laws
Parents of a child who had choked to death on a Playskool toy block sued alleging negligence in failing to warn of the hazard of the block.
Question: Should the court award summary judgment in favor of Playskool?
Discovery
The process of gathering evidence concerning the case. Discovery involves:– Depositions (sworn testimony
by a party or a witness)– Interrogatories (written
questions by one party towards the other made with assistance from the attorneys)
– Various requests (for admissions, documents, medical exams)
Rudy Giuliani – I do not recallClinton – What “is” is.
Pretrial Conference
Either party or the court can request a pretrial conference to:– Identify the matters in dispute after discovery
has taken place, or– To plan the course of the trial
Jury Selection
The jury selection process, also known as voir dire, consists of questions directed to prospective jurors to assess potential bias.
Jury video – McMahon, Philadelphia DA Training Video –
TrialTrial
The typical course of a trial can be diagrammed as follows:
OpeningStatementsOpening
StatementsPlaintiff’s Introduction
of EvidencePlaintiff’s Introduction
of Evidence
Defendant’s Introduction of
Evidence
Defendant’s Introduction of
Evidence
ClosingArguments
ClosingArguments
Post Trial Motions
After a jury has rendered its verdict, either party may make a post trial motion. These include:– Motion for judgment N.O.V. (Notwithstanding the
verdict) will be granted if the judge is convinced that the jury was in error.
– Motion for a new trial will be granted if the judge is convinced that the jury was in error, or there was newly discovered evidence, misconduct by the participants during the trial, or error by the judge.
The Appeal
Either party can appeal the trial court’s judgment to an appropriate court of appeals.
After reviewing the record on appeal, the abstracts, and the attorneys’ briefs, the appellate court holds a hearing and renders its opinion.
Facts versus law on appeal
Enforcing the Judgment
Securing a verdict does not mean there are assets to pay the judgment.
One of the primary factors to decide before filing suit is whether the defendant has resources or assets to pay a judgment.
Legal Representation and Alternative Dispute Resolution
Question
ABC corp promised to deliver 100 gadgets to you by Sept. 15. Due to an interruption of air service, it did not arrive on time. This cost you $100,000. The contract simply states that delivery must occur by Sept. 15 and does not allow for exceptions for occurrences beyond the control of ABC corp.
Would you sue?Would you defend?Does it matter why the shipment failed?
Would you sue?
Decision to File a Lawsuit
Decision to File Factors include:– Whether the law provides a remedy.– Whether the person can expert to prevail.– Whether the expected benefit will compensate for
expenses and other costs, including any business lost as a result of the lawsuit and accompanying publicity.
Decision to Defend Factors include:– Relationship Risk– Publicity Risk– Cost Risk (settlement may be cheaper)
• Is it real?• Will you win?• Is it worth it?
Roles of an Attorney
Adviser – advises a client on steps to take to avoid possible legal problems.
Drafter – writes contracts and other documents for clients.
Negotiator – persuades, argues, or settles with another party on a client’s behalf.
Advocate – presents a client’s position in court.Attorney-Client Privilege. Attorney-client privilege prevents a court and other government bodies from compelling disclosure of the information. (WORK PRODUCT – NOT DISCOVERABLE)
The Search for Alternatives to Litigation
Alternative dispute resolution (ADR) Less costly Less time-consuming Private
The Search for Alternatives to LitigationThe Search for Alternatives to Litigation
Forms of ADR include:
NegotiationNegotiation
Summary Jury Trial
Summary Jury Trial
MediationMediation
Mini-trialMini-trial Rent-a-Judge
Rent-a-Judge
ArbitrationArbitration
Negotiation and Mediation
Negotiation– With or without attorneys– Simple and fast– No third party
Mediation– Third party involved– With or without attorney – usually no attorneys
Arbitration – More formal– Third party involved– Generally binding
Key is to know what you want and when to you are better off walking away - Negotiation Exercise
The Federal Arbitration Act (FAA)
Provides Enforcement for Arbitration Decisions. FAA provides the means for enforcing the arbitration procedure that the parties have established for themselves.
FAA Covers Arbitration Clauses in Interstate Commerce. The FAA covers any arbitration clause in a contract that involves interstate commerce
Contract Between Parties
Annette Phillips was employed by Hooters restaurant from 1989-1996. Five years after she was hired, Hooters implemented an alternative dispute-resolution program which was not supplied to the employees. In 1996, Phillips was allegedly sexually harassed by Gerald Brooks, a Hooters’ official. Her manager told her to “let it go,” so she quit. Phillips threatened to sue and was told by Hooters that she needed to submit her claim to arbitration, which she refused. Hooters filed a suit against Phillips to compel arbitration but was denied by the court.
Increasingly, employers are including arbitration clauses in contracts with their employees. Some argue that while it may be fair to enforce such clauses in contracts between parties of equal bargaining strength, it is not fair to enforce them in employment contracts—because employees usually have no right to negotiate the terms of the contract. Do you agree with this argument? Explain.
Negotiation Exercise • Negotiation v. Arbitration of this issue
• Why would Hooters like arbitration better than litigation?
Work Out A SettlementAssume that the manager slapped her butt and made sexual comments. You want to negotiate a settlement (both sides). Try to reach an agreement – both sides fail if you fail to agree.
Hooters of America, Inc. v. Phillips
How did you settle?
How much money should she get? What else?
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How much money should she get?What else?
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Settlements
Fire Manager– Fire manager, she gets job back– Fire manager– Fire manager plus apology– Apology plus training money (did not say how much)
Plus Money– Manger to leave plus paid year’s salary without work– Manager suspended two weeks without pay plus $10,000– $10,000 in free wings – fire manager– Fire both managers, plus $50,000, plus new sexual harassment policy. – Fire manager - $50,000, apology– $50,000 plus agreement “to take legal action”?
Arbitration Clauses in Employment Contracts
Why Employers Like Arbitration for Employee Disputes. Arbitration is easier, faster, and less costly than litigation. Therefore, more businesses are including arbitration clauses in their contracts. What happens if a potential employee objects to the clause? Is this mandatory condition enforceable?
Is that a Problem?Why might victims of employment discrimination prefer to litigate their claims in a judicial forum rather than having them arbitrated, even assuming that arbitration proceedings would be unbiased and would not violate due process rights?
The Arbitration Process
The three steps of arbitration are:
Setting Aside an Arbitration Award
Crime or Contrary to Public Policy. No award will be enforced if compliance with the award would result in commission of a crime or would violate public policy. An arbitration award may also be set aside because of defects in the arbitration process.
Bias or Corruption.– Award was result of corruption, fraud, etc.– The arbitrator exhibited bias or corruption.– The arbitrator’s actions substantially prejudiced the rights of
one of the parties.– The arbitrator exceeded his or her powers.
Merits of the Case – will not be reviewed– Sufficiency of evidence– Arbitrator’s reasoning
Disadvantages to Arbitration
Arbitration has some disadvantages:– Unpredictable, since arbitrators are not
required to follow prior precedents, but must only follow whatever rules have been provided by the parties.
– Expensive, sometimes as expensive as litigation.
– Time consuming, since discovery is often unavailable, the parties may have to call more witnesses than they would in litigation.
Case questions
Arbitration – How can an arbitrator’s decision have force of law, when not a judge?
Case Question 3-6, p. 100. T-mobile agreement to arbitrate. Plaintiff want to start a class action to sue over excessive fees. What happens?
Court-Mandated ADR vs. Court-Annexed Arbitration
Court-Mandated ADR
Most states (and about half the federal courts) have adopted programs to encourage the parties to settle their disputes through ADR.
Some courts require parties to submit to ADR before proceeding to trial.
Court-Annexed Arbitration
Some states require the parties to undergo non-binding arbitration before proceeding to trial.
Note that in court-annexed arbitration, either party may reject the award.
Court-Related Mediation
ADR Around the Globe
Other countries also encourage mediation, arbitration, and other forms of ADR. Examples:– Japan has recently authorized neutral panels to act as
mediators in product liability suits.– China passed an arbitration law in 1995 that spells out
what types of disputes are arbitrable, the form and content of valid arbitration clauses, etc., all of which should make it simpler for disputes to be settled through ADR. Article on China as Location for arbitration.