1. CHAPTER 3 Dispute Resolution
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2. 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

3. 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.”

4. 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.

5. 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.

6. 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

7. 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
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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

8. 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

9. 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

10. 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.

11. 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.

12. 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

13. 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.

14. 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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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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