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