Ch03 Dispute Resolution

Business Law and Ethics Disputes Resolution Two methods of dispute resolution: Litigation and Alternative Dispute Resolution (ADR). Alternative Dispute Resolution Alternative to Litigation (going to court with a lawsuit). Formal or informal process to settle disputes without trial. ADR – much cheaper than litigations. Ways of Alternative Dispute Resolution are: Negotiation: parties reach an agreement by negotiating (personally or through lawyers) Mediation: a neutral mediator will bring the parties to an agreement. Can be ordered by a judge before relying to trial. Arbitration: neutral third party (arbitrator) that has power of imposing an award. There can be also Mandatory Arbitration, arbitration agreed in advance. Court Systems Divided mainly in two groups: Federal Court System and State Court Systems. In each group – trial courts and appellate courts: Trial courts – determine the facts of a dispute and apply to those facts the law given by earlier appellate court decisions. Usually cases start in trial courts. Appellate courts – accept the facts given by the trial courts and review the trial record to see if the trial court made errors of law. State Courts NOTE: We cannot be sued in a place where we haven’t had contacts – “minimum contact” principle. Example: I live in PA and I hit a car in VA. I cannot be sued in CA, only in either PA or VA (unless the case is taken to a Federal Trial court – see below). Trial Courts Trial courts determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions. One judge and (not always) a jury. Jurisdiction refers to a court’s power to hear the case. Trial Courts of Limited Jurisdiction: may hear only certain types of cases. Which ones, varies from state to state. Trial Courts of General Jurisdiction: can hear broader range of cases. General Civil Division is the one that hears cases of Civil Law. Called also Court of Common Pleas, Supreme Court (in NY), Circuit Court (e.g. Oregon). Appellate Courts Appeal Courts generally accept the facts given to them by trials courts and review the trial record to see if the court made errors of law. Three or more judges hear cases. No jury. No witnesses or new evidences. Court of Appeals: intermediate court. He who loses can file appeal. He who files an appeal is the appellant; the opposing party is the appellee. Written arguments called briefs. If error of law committed, trial court decision is reversed. If no error, trial court decision is affirmed. State Supreme Court: accepts some appeals from the court of appeals. No absolute right to appeal to the State Supreme Court. Normally seven judges, often called Justices. Final word on state law. Federal Courts For our purposes, two kinds of civil lawsuits permitted: Federal question cases: A claim based on the US Constitution, a federal statute, or a federal treaty is called a federal question case. Diversity cases: diversity jurisdiction if the plaintiff and defendant citizens of different states, and the amount in dispute exceeds $75,000. Trial Courts US District Courts: there 94 districts, primary court of the federal system. Other trial courts: specialized: tax, bankruptcy, international trade, claims (contract disputes) Judges: appointed by the President. Confirmed by the Senate. Appellate Courts US Courts of Appeal: intermediate courts of appeals. Divided into 12 circuits. The one for the Federal Circuit (the 13th) handles appeals from specialized courts. Three judges. US Supreme Court: Nine justices. Litigation Pleadings Pleadings – the documents that start the lawsuit. These consist of complaint, the answer, and sometimes a reply. Complaint The plaintiff files in court a complaint. The complaint is a short, plain statement of the alleged facts and the legal claim. Purpose: to inform the defendant of the claims and the need to protect his rights. Service After filing the complaint the plaintiff gets a summons – a paper ordering the defendant to answer within 20 days. A sheriff then serves the two papers (complaint and summons) by delivering them to the defendant. Answer The answer is a brief reply to each allegation. The answer tells which issues are disputed. If answer not received in time (20 days), the plaintiff asks for default judgment. Counter-Claim Counter-claim is a second lawsuit by the defendant against the plaintiff. The plaintiff has to answer with reply. Class Actions Class action is when the plaintiff represents a whole group of plaintiffs, including those who are unaware of the case. Judgment on the Pleadings A party can ask for judgment based only on the pleadings. Motion – a formal request to the court to take a step or to issue an order. Motion to dismiss – a request for case termination. Discovery Discovery – the critical, pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent’s case. Forms of discovery: Depositions – One party’s lawyer questions other party, or potential witnesses, under oath. Production of documents and things – each party may ask the other party for things or copies of documents. Physical and mental examination – a party may ask the court for examination of the other party, if relevant. Requests for Admission – each party can insist that the other party admits or denies certain facts, to avoid wasting time on non-disputed points. Summary Judgment Summary judgment – a ruling by the court that no trial is necessary, because no essential facts are disputed. Summary judgment can be sought by both sides. Final Preparations These are the preparations before the trial. More than 90% of all cases do not reach this stage and are settled without a trial. Trial Adversary System – Both parties bring witnesses. Each witness is cross-examined by both parties. The judge runs the trial. Right to Jury Trial – Not all cases are tried to a jury. But both parties have the right to demand a jury trial when the lawsuit is for money damages. Voir Dire – The process of selecting a jury. Mean “to speak the truth”. Each lawyer can make challenges for cause, claiming a juror’s bias. Opening Statements – On the next day each attorney makes an opening statement, summarizing the proof to offer. Burden of Proof – In civil cases the plaintiff has the burden of proof. The plaintiff’s burden is to prove the case by a preponderance of the evidence (“51-49” persuasion of the jury). But in a criminal case the prosecution has to convince the jury beyond a reasonable doubt in order to win a criminal conviction. Rules of Evidence – The evidence law determines the rules for questioning and providing evidences. Motion for Direct Verdict – request for ruling that the plaintiff has failed to prove the case. Defendant’s Case – follows the plaintiff’s case. Closing Argument – both lawyers sum up their cases. Jury Instructions – the judge instructs the jury as to its duties. Verdict – the decision of the jury after some informal deliberation. Motions after the Verdict – motion for a judgment non obstante veredicto (judgment n.o.v.), meaning a judgment notwithstanding the jury’s verdict. Appeals Appeal Court options Affirm – upholding the lower court’s decision Modify – changing the verdict, but leaving the same party victorious Reverse – transforming the loser into a winner Remand – sending the case back to the lower court.