The Court System and Alternative Dispute Resolution CHAPTER 6 The Court System and Alternative Dispute Resolution

Introduction Paralegals need to understand the different types of courts in the American system The first part of this chapter examines the structure of the American courts In addition to the public courts, there is also a system of private dispute resolution mechanisms Alternative methods of dispute resolution need attorneys and paralegals to facilitate them

Judicial Requirements Standing to Sue Sufficient “stake” in a matter Legally protected, genuine interest Must have suffered a harm Can sometimes sue on behalf of another person Controversy at issue must be justiciable Real and substantial, not hypothetical or academic Learning Objective: The requirements that must be met before a lawsuit can be brought in a particular court by a particular party.

Judicial Requirements Types of Jurisdiction In Latin, juris means “law,” and diction means “to speak” Court must have jurisdiction in order to hear a case Jurisdiction over persons Long arm statute Jurisdiction over property Jurisdiction over subject matter Original and appellate jurisdiction Learning Objective: The difference between jurisdiction and venue.

Judicial Requirements Jurisdiction of the Federal Courts Federal questions Diversity jurisdiction Diversity of citizenship Exclusive versus concurrent jurisdiction Concurrent jurisdiction Party has choice of federal or state court

Judicial Requirements Jurisdiction in Cyberspace The “sliding-scale” standard Substantial business conducted over the Internet Some interactivity through a website Passive advertising International jurisdictional issues

Judicial Requirements Venue Most appropriate location for a trial Should be in the geographic area of the lawsuit Usually the county Pretrial publicity may require change of venue in order to obtain a fair and impartial jury

Judicial Requirements Judicial Procedures Specifically designated procedural rules Federal Rules of Civil Procedure Federal civil court procedural rules Each federal court also has its own local rules State rules vary Rules of procedure differ in criminal and civil cases

State Court Systems Trial Courts Courts in which trials are held, testimony taken General jurisdiction courts County, district, superior, or circuit courts Jurisdiction over civil disputes and criminal prosecutions Limited jurisdiction courts “Inferior” trial courts or minor courts These include small claims, domestic relations, municipal, and probate courts Learning Objective: The types of courts that make up a typical state court system and the different functions of trial courts and appellate courts.

State Court Systems Appellate, or Reviewing, Courts Parties unlikely to file an appeal unless a reversible error was committed by the trial court Appellate courts only look at questions of law Do not consider questions of fact Only a judge can rule, not a jury Intermediate appellate courts (IACs) Highest state courts

The Federal Court System Three-tiered model U.S. district courts U.S. courts of appeals U.S. Supreme Court Federal court judges appointed by the President Federal judges receive lifetime appointments Learning Objective: The organization of the federal court system and the relationship between state and federal jurisdiction.

The Federal Court System

The Federal Court System U.S. District Courts Equivalent of a state trial court At least one federal district court in every state Number of judicial districts varies over time Population changes Caseloads Have original jurisdiction in matters of federal law

The Federal Court System U.S. Court of Appeals Thirteen federal U.S. courts of appeals Also referred to as U.S. circuit courts of appeals Decisions of the circuit courts of appeals are final in most cases Review by the U.S. Supreme Court is possible

The Federal Court System

The Federal Court System The United States Supreme Court Highest level of the federal court system Consists of nine justices Most of its work is as an appeals court How cases reach the Supreme Court No absolute right of appeal to the U.S. Supreme Court Writ of certiorari Learning Objective: How cases reach the United States Supreme Court.

The Federal Court System The United States Supreme Court (continued) Types of cases reviewed by the Supreme Court Petitions that raise important constitutional questions Learning Objective: How cases reach the United States Supreme Court.

Alternative Dispute Resolution Litigation is expensive, adversarial, and time consuming Advantage of ADR is its flexibility About 95 percent of cases are settled before trial Several federal courts have instituted ADR programs Services are now being offered via the Internet Paralegals can help attorneys to clarify the issues Learning Objective: The various ways in which disputes can be resolved outside the court system.

Alternative Dispute Resolution Checklist for deciding whether to sue Negotiation One alternative means of resolving disputes Frequently advised by attorneys Clients may be able to negotiate disputes voluntarily Attempt to find a mutually satisfactory agreement Settlement agreement

Alternative Dispute Resolution Mediation A nonadversarial forum Paralegals as mediators Mediator’s skills Good listener Discipline Comprehends facts Diligent Possesses writing skills

Alternative Dispute Resolution Arbitration More formal method in which third party makes the decision for the parties, acts as a private judge Arbitration clauses and statutes Contractual obligation Statutory backing The arbitration process The hearing The award Cont.

Alternative Dispute Resolution Arbitration The role of the courts in prearbitration Compel arbitration Fairness issue The postarbitration role of the courts

Alternative Dispute Resolution Other ADR Forms Binding mediation Mediation arbitration (med-arb) Early neutral case evaluation (“assisted negotiation”) Mini-trial Neutral third party acts as an adviser

Alternative Dispute Resolution Collaborative Law Increasingly used in marital separation procedures Parties agree to resolve all issues without litigation Discovery is cooperative and informal Parties work together to craft an agreement Attorneys focus only on settlement

Alternative Dispute Resolution Court-Referred ADR Types of court-related ADR vary widely Voluntary in some states, required in others Summary jury trials (SJTs) Parties present their arguments Jury’s verdict is not binding Verdict acts as a guide Parties have right to a full trial later

Alternative Dispute Resolution Providers of ADR Services Government agencies Private organizations American Arbitration Association (AAA) Cases heard by an expert or a panel of experts Cases usually settled quickly Some firms hire retired judges to conduct arbitration hearings Some courts provide these services

Alternative Dispute Resolution Online Dispute Resolution ODR is conducted on the Internet Disputes concerning use of website addresses or sales over the Internet Online negotiation SmartSettle Online arbitration American Arbitration Association Resolution Forum, Inc. (RFI)

Summary Courts have jurisdiction over persons and businesses residing in geographic area of the court Limited jurisdiction exists when a court is limited to a specific subject matter Courts of appeals, or reviewing courts, have appellate jurisdiction Jurisdiction exists in federal court when a federal question is involved

Summary The focus on appeal is for reversible errors in law made at trial The Supreme Court has original jurisdiction in a few cases, but it functions primarily as an appellate court The costs and time-consuming character of litigation, as well as the public nature of court proceedings, have caused many to turn to various forms of alternative dispute resolution (ADR) for settling disagreements