Dispute Resolution

“Facts are ventriloquists’ dummies. Sitting on a wise man’s knee they

may be made to utter words of wisdom; elsewhere, they say nothing,

or talk nonsense or indulge in sheer diabolism.”

Aldus Huxley, British Author

Structure of our court systems Civil lawsuits Alternative dispute resolution

Litigator: Lawyer who handles court cases Litigation: Process of filing claims in court,

and ultimately going to trial Alternative dispute resolution: Formal

or informal process used to settle disputes without resorting to a trial

United States has over 50 systems of courts Nationwide system of federal courts serves

the entire country Each individual state has its court system

Determine the facts of a particular dispute ◦ Apply to those facts the law given by earlier

appellate court decisions Jurisdiction: Court’s power to hear a case

Court has the authority to hear a particular type of case

Trial courts of limited jurisdiction◦ Hear only certain types of cases◦ Small claims court - Jurisdiction over civil lawsuits◦ Juvenile court - Hears only cases involving minors◦ Probate court - Settling the estates of deceased

persons

Trial courts of general jurisdiction◦ Hear a very broad range of cases◦ Most important court - General civil division

Personal jurisdiction: Legal authority to require the defendant to:◦ Stand trial◦ Pay judgments

Personal jurisdiction exists if:◦ Defendant is a resident of the state in which a

lawsuit is filed◦ Defendant takes a formal step to defend a lawsuit◦ Summons is served on a defendant

Summons: Court’s written notice that a lawsuit has been filed against the defendant

◦ A long-arm statute applies Long-arm statute: Gives a court jurisdiction over

someone who commits a tort, signs a contract, or conducts “regular business activities” in the state

Accept the facts given to them by trial courts◦ Review the trial record to see if the court made

errors of law Will accept a factual finding unless there

was no evidence at all to support it Error of law: Appeals court may require a

new trial

Court of appeals◦ Appellant: Party filing the appeal◦ Appellee: Party opposing the appeal◦ Briefs: Written arguments on the case◦ Reversed: Nullified◦ Affirmed: Permitted to stand

State Supreme Court◦ Highest court in the state◦ Accepts some appeals from the court of appeals◦ Seven judges – Justices sit on the Supreme Court

Federal question case: Claim based on the United States Constitution, a federal statute, or a federal treaty◦ Federal courts have jurisdiction

Diversity case Diversity jurisdiction: When:

◦ Plaintiff and defendant are citizens of different states

◦ The amount in dispute exceeds $75,000

United States district court◦ Primary trial court in the federal system◦ Nation is divided into about 94 districts

Each has a district court Other trial courts

◦ Bankruptcy court

◦ Tax court◦ United States court of International trade

Judges◦ President of the United States nominates all

federal court judges

United States courts of appeals◦ Intermediate courts of appeals◦ Divided into “circuits”

United States Supreme Court◦ Highest court in the country◦ Nine justices on the court

One justice - Chief justice Eight - Associate justices

◦ Power to hear appeals in any federal case◦ Writ of certiorari: Petition asking the court to

hear the case

Pleadings: Documents that begin a lawsuit◦ Complaint ◦ Answer ◦ Sometimes a reply

Complaint: Short, plain statement of the facts alleged and the legal claims made

Service◦ Summons - Paper ordering the defendant to

answer the complaint within 20 days Answer - Brief reply to each of the

allegations in the complaint◦ Default judgment: Decision that the plaintiff

wins without trial because the defendant failed to answer in time

Counter-claim: Second lawsuit by the defendant against the plaintiff◦ Reply - Answer to a counter-claim

Class actions: One plaintiff represents the entire group of plaintiffs ◦ Those who are unaware of the lawsuit or even

unaware they are harmed

Judgment on the pleadings◦ Motion: Formal request to the court that the

court take some step or issue some order◦ Motion to dismiss: Request that the court

terminate a case without permitting it to go further

Discovery: Critical, pre-trial opportunity for both parties to:◦ Learn the strengths and weaknesses of the

opponent’s case

Discovery◦ Interrogatories - Written questions that the

opposing party must answer, in writing, under oath

◦ Depositions - Provide a chance for one party’s lawyer to question the other party Deponent: Person being questioned

◦ Production of documents and things

Discovery◦ Physical and mental examination

Motion for a protective order: Request that the court limit discovery

Motion to compel answers to interrogatories Memorandum: Supporting argument In camera inspection: Judge views the requested

documents alone, with no lawyers present Decides whether the other side is entitled to view them

E-Discovery◦ Businesses large and small have vast amounts of

data stored electronically Other discovery

Ruling by the court that no trial is necessary because:◦ Some essential facts are not in dispute

Attorneys make lists of all witnesses they will call

Prepare each witness very carefully Rehearse the questions Takes hours and hours, for many days

Adversary system◦ Putting a witness on the stand and letting both

lawyers question Truth will emerge

Right to jury trial◦ Plaintiff and defendant have a right to demand a

jury trial when: Lawsuit is one for money damages

Voir dire: Process of selecting a jury◦ Challenges for cause: Claiming that a juror has

demonstrated probable bias◦ Peremptory challenges: Right to excuse a juror

for virtually any reason Opening statements - Summarizing the

proof he or she expects to offer, with the plaintiff going first

Burden of proof◦ Preponderance of the evidence: Plaintiff’s

burden in a civil lawsuit◦ Beyond a reasonable doubt: Government’s

burden in a criminal prosecution

Plaintiff’s case◦ Direct examination: When a lawyer asks

questions of her own witness◦ Cross-examine: Ask questions of an opposing

witness Rules of evidence

◦ Law of evidence: What questions a lawyer may ask How the questions are to be phrased What answers a witness may give What documents may be introduced

Motion for directed verdict◦ Directed verdict: Ruling that the plaintiff has

entirely failed to prove some aspect of her case◦ Permissible only if the evidence favors the

defendant that: Reasonable minds could not disagree on it

Defendant’s case

Closing arguments◦ Lawyers sum up their case to the jury:

Explaining how they hope the jury will interpret what they have heard

Jury instructions◦ The judge instructs the jury to evaluate the case

solely on the facts of the evidence presented

Verdict◦ Jury deliberates informally, with all jurors entitled

to voice their opinion Motions after the verdict

◦ Judgment non obstante veredicto (JNOV): Judgment notwithstanding the jury’s verdict

Precedent: Earlier decisions by the state appellate courts on similar issues

Appeals court options◦ Affirm: Allow the decision to stand◦ Modify: Affirm the outcome but with changes◦ Reverse and remand: Nullify the lower decision

and return the case for reconsideration◦ Reverse: Turning the loser into the winner, with

no new trial◦ Harmless error: Mistake by the trial judge that

was too minor to affect the outcome

Negotiation◦ Majority of disputes are resolved this way

Mediation◦ Mediator - Attempts to guide the two disputing

parties toward a voluntary settlement◦ Advantages - Two antagonists can speak freely

All discussions are confidential Offers the strongest “win–win” potential

Arbitration◦ Bring in a neutral third party

Arbitrator has the power to impose an award Arbitrator after deliberation, issues a

binding decision