1. Courts and Litigation Syllabus Change – Will do Courts first then alternative dispute resolution

2. The Judiciarys Role in American Government Courts -- interpret and apply the law. Judicial reviewdetermining the constitutionality of lawsthe judicial branch acts as a check on the executive and legislative branches of government – Marbury v. Madison Bush v. GoreBush v. Gore (u-Tube clip) Justice Breyer on the US Supreme Court

3. Basic Judicial Requirements Before a lawsuit can be brought before a court, certain requirements must first be met. These include: Jurisdiction Federal State Subject Jurisdiction Federal State Subject Venue Standing to Sue

4. Venue Venue has to do with the most appropriate location for a trial, which is usually the geographical area in which the event leading to the dispute took place or where the parties reside.

5. Standing to Sue A requirement that a party must have a legally protected and tangible interest at stake sufficient to justify seeking relief through the court system. The controversy at issue must also be a justifiable controversy, one that is real and substantial, as opposed to hypothetical or academic. MN tobacco case Toledo Ohio Jeep Plant from Book Friends of the Earth, Inc. v. Crown Central Petroleum Corp. Friends of the Earth, a not-for-profit corporation dedicated to the protection of the environment, sued the oil company claiming that discharges of storm-water run-off had directly affected the health, economic, recreational, aesthetic, and environmental interests of FOEs members. End-of-Chapter Q: 3-3 Lamar advertising sues over city ordinance restricting the size and placement of signs. Lamar asked for permission and was denied and now wants to sue. Does Lamar have standing?

6. Trial Courts State courts: Courts of general jurisdiction may be called by a variety of names. Courts of limited jurisdiction include: – Divorce courts – Probate courts – Traffic courts – Small claims courts Federal courts: Court of general jurisdiction is the U.S. District court. Courts of limited jurisdiction include: – U.S. Tax Court – U.S. Bankruptcy Court – U.S. Court of Federal Claims Intermediate Appellate Courts Supreme Courts Internet Jurisdiction

8. Following a Case Through the State Courts A sample civil court case in a state court would involve the following: The Pleadings The Pleadings Pretrial Motions Pretrial Motions Discovery Pretrial Conference Pretrial Conference Trial Post trial Motions Post trial Motions The Appeal

9. Adversarial System Attorney Represents Client as an Adversary Judge is Unbiased, Serves to Enforce Rules Work-Product

10. The Pleadings Complaint: – Filed by the plaintiff with the court to initiate the lawsuit; served with a summons on the defendant. – Default judgment Answer: – Admits or denies allegations made by the plaintiff; – may assert a counterclaim or – an affirmative defense. Motion to dismiss: – A request to the court to dismiss the case for stated reasons, such as the plaintiffs failure to state a claim for which relief can be granted.

11. Pretrial Motions Motion for judgment on the pleadings: Will be granted if the parties agree on the facts and the only question is how the law applies to the facts. The judge bases the decision solely on the pleadings. Motion for summary judgment: Will be granted if the parties agree on the facts. The judge applies the law in rendering a judgment. The judge can consider evidence outside the pleadings when evaluating the motion.

12. Metzgar v. Playskool Jury decides facts Jude decides laws Parents of a child who had choked to death on a Playskool toy block sued alleging negligence in failing to warn of the hazard of the block. Question: Should the court award summary judgment in favor of Playskool?

13. Discovery The process of gathering evidence concerning the case. Discovery involves: – Depositions (sworn testimony by a party or a witness) – Interrogatories (written questions by one party towards the other made with assistance from the attorneys) – Various requests (for admissions, documents, medical exams) Rudy Giuliani Rudy Giuliani – I do not recall Clinton Clinton – What is is.

14. Pretrial Conference Either party or the court can request a pretrial conference to: – Identify the matters in dispute after discovery has taken place, or – To plan the course of the trial

15. Jury Selection The jury selection process, also known as voir dire, consists of questions directed to prospective jurors to assess potential bias. Jury video Jury video – McMahon, Philadelphia DA Training Video –

16. Trial The typical course of a trial can be diagrammed as follows: Opening Statements Opening Statements Plaintiffs Introduction of Evidence Defendants Introduction of Evidence Closing Arguments Closing Arguments

17. Post Trial Motions After a jury has rendered its verdict, either party may make a post trial motion. These include: – Motion for judgment N.O.V. (Notwithstanding the verdict) will be granted if the judge is convinced that the jury was in error. – Motion for a new trial will be granted if the judge is convinced that the jury was in error, or there was newly discovered evidence, misconduct by the participants during the trial, or error by the judge.

18. The Appeal Either party can appeal the trial courts judgment to an appropriate court of appeals. After reviewing the record on appeal, the abstracts, and the attorneys briefs, the appellate court holds a hearing and renders its opinion. Facts versus law on appeal

19. Enforcing the Judgment Securing a verdict does not mean there are assets to pay the judgment. One of the primary factors to decide before filing suit is whether the defendant has resources or assets to pay a judgment.

20. Legal Representation and Alternative Dispute Resolution

21. Question ABC corp promised to deliver 100 gadgets to you by Sept. 15. Due to an interruption of air service, it did not arrive on time. This cost you $100,000. The contract simply states that delivery must occur by Sept. 15 and does not allow for exceptions for occurrences beyond the control of ABC corp. ABC corp promised to deliver 100 gadgets to you by Sept. 15. Due to an interruption of air service, it did not arrive on time. This cost you $100,000. The contract simply states that delivery must occur by Sept. 15 and does not allow for exceptions for occurrences beyond the control of ABC corp. Would you sue? Would you defend? Does it matter why the shipment failed?

22. Would you sue?

23. Decision to File a Lawsuit Decision to File Factors include: – Whether the law provides a remedy. – Whether the person can expert to prevail. – Whether the expected benefit will compensate for expenses and other costs, including any business lost as a result of the lawsuit and accompanying publicity. Decision to Defend Factors include: – Relationship Risk – Publicity Risk – Cost Risk (settlement may be cheaper) Is it real? Will you win? Is it worth it?

24. Roles of an Attorney Adviser – advises a client on steps to take to avoid possible legal problems. Drafter – writes contracts and other documents for clients. Negotiator – persuades, argues, or settles with another party on a clients behalf. Advocate – presents a clients position in court. Attorney-Client Privilege. Attorney-client privilege prevents a court and other government bodies from compelling disclosure of the information. (WORK PRODUCT – NOT DISCOVERABLE)

25. The Search for Alternatives to Litigation Alternative dispute resolution (ADR) Less costly Less time-consuming Private

26. The Search for Alternatives to Litigation Forms of ADR include: Negotiation Summary Jury Trial Mediation Mini-trial Rent-a- Judge Rent-a- Judge Arbitration

27. Negotiation and Mediation Negotiation – With or without attorneys – Simple and fast – No third party Mediation – Third party involved – With or without attorney – usually no attorneys Arbitration – More formal – Third party involved – Generally binding Key is to know what you want and when to you are better off walking away - Negotiation Exercise

28. The Federal Arbitration Act (FAA) Provides Enforcement for Arbitration Decisions. FAA provides the means for enforcing the arbitration procedure that the parties have established for themselves. FAA Covers Arbitration Clauses in Interstate Commerce. The FAA covers any arbitration clause in a contract that involves interstate commerce Contract Between Parties

29. Annette Phillips was employed by Hooters restaurant from 1989-1996. Five years after she was hired, Hooters implemented an alternative dispute- resolution program which was not supplied to the employees. In 1996, Phillips was allegedly sexually harassed by Gerald Brooks, a Hooters official. Her manager told her to let it go, so she quit. Phillips threatened to sue and was told by Hooters that she needed to submit her claim to arbitration, which she refused. Hooters filed a suit against Phillips to compel arbitration but was denied by the court. Increasingly, employers are including arbitration clauses in contracts with their employees. Some argue that while it may be fair to enforce such clauses in contracts between parties of equal bargaining strength, it is not fair to enforce them in employment contractsbecause employees usually have no right to negotiate the terms of the contract. Do you agree with this argument? Explain. Negotiation Exercise Negotiation v. Arbitration of this issue Why would Hooters like arbitration better than litigation? Work Out A Settlement Assume that the manager slapped her butt and made sexual comments. You want to negotiate a settlement (both sides). Try to reach an agreement – both sides fail if you fail to agree. Hooters of America, Inc. v. Phillips Start here thrusday – did example show student answers

30. How did you settle?

31. How much money should she get? What else? 31

32. How much money should she get? What else? 32

33. Settlements Fire Manager – Fire manager, she gets job back – Fire manager – Fire manager plus apology – Apology plus training money (did not say how much) Plus Money – Manger to leave plus paid years salary without work – Manager suspended two weeks without pay plus $10,000 – $10,000 in free wings – fire manager – Fire both managers, plus $50,000, plus new sexual harassment policy. – Fire manager - $50,000, apology – $50,000 plus agreement to take legal action?

34. Arbitration Clauses in Employment Contracts Why Employers Like Arbitration for Employee Disputes. Arbitration is easier, faster, and less costly than litigation. Therefore, more businesses are including arbitration clauses in their contracts. What happens if a potential employee objects to the clause? Is this mandatory condition enforceable? Is that a Problem? Why might victims of employment discrimination prefer to litigate their claims in a judicial forum rather than having them arbitrated, even assuming that arbitration proceedings would be unbiased and would not violate due process rights?

35. The Arbitration Process The three steps of arbitration are:

36. Setting Aside an Arbitration Award Crime or Contrary to Public Policy. No award will be enforced if compliance with the award would result in commission of a crime or would violate public policy. An arbitration award may also be set aside because of defects in the arbitration process. Bias or Corruption. – Award was result of corruption, fraud, etc. – The arbitrator exhibited bias or corruption. – The arbitrators actions substantially prejudiced the rights of one of the parties. – The arbitrator exceeded his or her powers. Merits of the Case – will not be reviewed – Sufficiency of evidence – Arbitrators reasoning

37. Disadvantages to Arbitration Arbitration has some disadvantages: – Unpredictable, since arbitrators are not required to follow prior precedents, but must only follow whatever rules have been provided by the parties. – Expensive, sometimes as expensive as litigation. – Time consuming, since discovery is often unavailable, the parties may have to call more witnesses than they would in litigation.

38. Case questions Arbitration – How can an arbitrators decision have force of law, when not a judge? Case Question 3-6, p. 100. T-mobile agreement to arbitrate. Plaintiff want to start a class action to sue over excessive fees. What happens?

39. Court-Mandated ADR vs. Court- Annexed Arbitration Court-Mandated ADR Most states (and about half the federal courts) have adopted programs to encourage the parties to settle their disputes through ADR. Some courts require parties to submit to ADR before proceeding to trial. Court-Annexed Arbitration Some states require the parties to undergo non- binding arbitration before proceeding to trial. Note that in court- annexed arbitration, either party may reject the award. Court-Related Mediation

40. ADR Around the Globe Other countries also encourage mediation, arbitration, and other forms of ADR. Examples: – Japan has recently authorized neutral panels to act as mediators in product liability suits. – China passed an arbitration law in 1995 that spells out what types of disputes are arbitrable, the form and content of valid arbitration clauses, etc., all of which should make it simpler for disputes to be settled through ADR. Article on China as Location for arbitration.