CHAPTER 3 Dispute Resolution Click your mouse anywhere on the screen to advance the text in each slide. After the starburst appears, click a blue triangle to move to the next slide or previous slide.

Quote of the Day Aldus Huxley, British Author 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

There is only one good kind of legal dispute -- The one that is prevented! “You have a chance to go broke twice in your life; once when you lose a lawsuit, the other time, when you win.”

Litigation vs. Alternative Dispute Resolution Litigation refers to lawsuits; the process of filing claims in court, and ultimately going to trial. Alternative Dispute Resolution is any other formal or informal process for settling disputes without going to trial.

Alternative Dispute Resolution (most common forms) Negotiation Parties make offers and counter-offers for settlements. May be face-to-face or through lawyers. Mediation Neutral person (mediator) attempts to get parties to reach a voluntary settlement. Mediation may be ordered by a judge. Mediator does not render a decision. Arbitration Neutral person (arbitrator) is involved. Arbitrator does render a binding decision. Arbitration may be mandatory, if chosen in advance as the method for dispute resolution.

Alternative Dispute Resolution (less common forms) Mini-trial Parties stage a short trial to a panel of three “judges.” Two of the “judges” are executives of the disputing corporations; the third is a neutral party. Lawyers present shortened cases; “judges” discuss settlement. Summary Jury Trial Initiated and supervised by a court. Each side summarizes to a mock jury what witnesses would say if called before a real jury. Jury deliberates and tries to reach consensus, but may vote individually if necessary. Allows each side to see how a trial might turn out. Click here to search the internet for Alternative Dispute Resolution

State Court System State Supreme Court (Highest Appeals Court) Usually 7 Justices; may refuse to hear a case; final authority State Supreme Court (Highest Appeals Court) Three judges; never a jury Lower Appeals Courts Click on any box below for a definition of the jurisdiction of that trial court. General Civil Division General Criminal Division Small Claims Division Juvenile Division Land Division Trial Courts of General Jurisdiction Domestic Relations Division Municipal Division Probate Division One judge; may have jury Trial Courts of Limited (or Specific) Jurisdiction One judge; may have jury

Federal Courts -- Two kinds of civil lawsuits permitted Federal Question Cases A claim based on the United States Constitution, a federal statute, or a federal treaty Diversity Cases When the plaintiff and defendant are citizens of two different states, AND the amount in dispute is greater than $50,000 Click for an internet intro to past or present Supreme Court Justices

The Federal Court System Click here to see a map of the 12 Circuits of the U.S. Courts of Appeals. United States Supreme Court (Highest Appeals Court) Nine Justices; appointed for life; may refuse to hear a case; final authority * Three judges hear each case, brought up from the District Courts. Lower Appeals Courts U.S. Court of Appeals for the Federal Circuit U.S. Courts of Appeals (12 Circuits) Hears appeals from specialized trial courts. Click on any box below for a definition of the jurisdiction of that trial court. U.S. District Courts U.S. Bankruptcy Courts U.S. Patent & Trademark Office U.S. Tax Courts U.S. Court of International Trade U.S. Claims Court Primary Trial Court Trial Courts of Limited (Specific) Jurisdiction Various Federal Agencies Trial Courts of Limited (Specific) Jurisdiction

Steps in Beginning Litigation Pleadings: Papers that begin a lawsuit 1. Complaint -- Short, plain statement of the allegations and the legal claims. This is “served” or delivered with a summons. 2. Answer -- A brief reply to the allegations. 3. Counter-Claim -- Sometimes the accused party will initiate a second suit in response to the first. 4. Reply -- A brief reply to the counter-claim.

Possible Variations on Pleadings Counter-claim If the accused party thinks the accusing party has contributed to the problem or has wronged them, they may file a second suit, in reverse of the first. Class Actions If the plaintiff has evidence that the wrong in question has affected a large number of unrelated persons, the suit may become a class-action suit, with the plaintiff representing an entire class of plaintiffs. Judgment on the Pleadings Either party can ask the court for a judgment based on the initial complaint and answer, but few cases are dismissed at this point.

Discovery -- next step after pleadings Discovery allows both sides to uncover evidence, encouraging a settlement without trial or ensuring few surprises during a trial. Interrogatories -- written questions that the other party must answer, under oath Depositions -- interview (under oath) of other party or potential witnesses; done by opposing lawyer Production of Evidence -- each side may request to see the other side’s evidence Physical or Mental Exam – one party may request the court to order an examination of the other party if relevant Requests for Admission -- each side may request that undisputed facts be admitted or denied, to avoid wasting time on them

Other Steps Before Trial Summary Judgment -- a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side. Final Preparation -- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.

Beginning a Trial Jury Selection: Process called voir dire If both sides agree, they may waive their right to a jury. 1. Questioning -- Each potential juror is questioned, to uncover biases. 2. Challenges for Cause -- Each side can claim any juror shows significant bias. 3. Peremptory Challenges -- Each lawyer can dismiss a limited number of jurors without stating a reason. 4. Jury Chosen -- 12 jurors and 2 alternates

Procedural Rules for a Trial Burden of Proof The plaintiff must convince the jury that its version of the case is correct. In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). In a criminal case, the proof required is higher; it must be beyond a reasonable doubt. Rules of Evidence Lawyers are allowed to ask only questions that are relevant to the case.

The Plaintiff’s Case First, Opening Arguments This is a brief summary, given by each side, of the facts they hope to demonstrate. Plaintiff Calls Witnesses Questions to own witnesses is direct examination. Lawyer only asks questions with helpful answers. Defendant Questions Witnesses Questions to opposing witnesses is cross examination. Again, lawyer asks questions with helpful answers. Defendant Moves for Directed Verdict This is asking the judge to decide that the plaintiff has no case worth proceeding with.

The Defendant’s Case Opening Arguments Defendant Calls Witnesses Defendant’s opening arguments were presented earlier, before the plaintiff presented its case. Defendant Calls Witnesses Questions to own witnesses is direct examination. Lawyer only asks questions with helpful answers. Plaintiff Questions Witnesses Questions to opposing witnesses is cross examination. Again, lawyer asks questions with helpful answers. Closing Arguments Brief summary, by both sides, urging the jury to believe their side of the case.

After Both Sides Rest (Finish) Jury Instructions The judge instructs the jury to evaluate the case solely on the facts of the evidence presented. If the case is influenced by a certain legal presumption, the judge will summarize that for the jury. Deliberation and Verdict The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks). Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required.

The Trial is Over… or is it? Motions after the Verdict The loser might request a judgment n.o.v., asking the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence. If the judgment n.o.v. is denied, the losing side may request a new trial, on the same claims. Appeal The recourse for the loser is to file an appeal, a request for a higher court to examine the facts. The appeals court may affirm the verdict, modify the award, reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict. Settlement At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal.

The process of litigation, with its potential for errors or biases, may influence the outcome of a dispute as strongly as the law itself. That is all the more reason to prevent disputes if possible, or to use alternative methods of dispute resolution.

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