Dispute Regulation OBE-118, Section 3 Fall 2004 John McKinsey U.S. Civil Court system and how individuals use it to (hopefully) resolve their dispute and Alternatives to that system (Alternative Dispute Resolution or “ADR”)

So you have a dispute…. Do I sue? What are my goals in resolving this dispute? Lawsuit, attorney’s fees, courtroom, judge, jury, public, etc. Agreement between parties, resolution, quick, less expensive, private, etc.

Using Courts to Resolve Disputes What court? (Jurisdiction) How does the court system work? (Civil Procedure)

What Court The Federal Court System? The State Court Systems? (really 50)

Jurisdiction 3 Concepts of Jurisdiction Court Jurisdiction (political boundaries) Personal Jurisdiction Subject Matter Jurisdiction

Federal versus State Jurisdiction Exclusive Federal Jurisdiction Exclusive State Jurisdiction Federal crimes and certain federal matters such as antitrust, patent, bankruptcy Diversity of citizenship cases All matters not covered above (State crimes, non- diversity civil suits based on state law, etc.) Concurrent Federal Jurisdiction Federal matters not exclusive

Court Jurisdiction Federal Court State #1 CourtState #2Court Concurrent Federal Jurisdiction Exclusive Federal Jurisdiction Exclusive State Jurisdiction

What Type of Court? Courts of Limited versus General Jurisdiction Trial versus appellate courts This is really all “Subject Matter Jurisdiction”

What State Court Systems Can Be Used? State where incident occurred State where defendant “lives” Other states? Generally, the answer to this question is limited by “Personal Jurisdiction” and principals of Due Process

Personal Jurisdiction In personam jurisdiction Court must have subject matter jurisdiction over the complaint Serve the person a summons within the state Long arm statute can solve out-of-state problems

The Jurisdiction Triangle Court Juris S/M Juris Personal Juris

Trials Formal procedure is followed Text is great in this area

Appeals Not always mandatory that court must take it Scope of review Errors of law- yes Errors of fact- no*

Alternative Dispute Resolution Solving a dispute by reaching mutual agreement is always better than relying upon civil court system. Negotiation Mediation Arbitration Arbitration clauses

Arbitration Clauses Waiving right to Jury Trial Waiving right to sue or use court system Increasingly being allowed by courts To be effective against individual or consumer they usually must be conspicuous and directly acknowledged by individual