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

2. 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

3. 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.

4. 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.

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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

11. 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.

12. The Federal Court System

13. 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

14. 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

15. The Federal Court System

16. 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.

17. 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.

18. 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.

19. 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

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

21. 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.

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

23. 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

24. 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

25. 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

26. 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

27. 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)

28. 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

29. 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