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Courts and ADR Every business person can expect to face at least one lawsuit in their career Where? –Federal Court –State Court –ADR Arbitration, Mediation, Negotiation
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Courts Interpret and apply the laws in specific situations “justiciable controversy” Judicial Review Marbury v. Madison 1803
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Jurisdiction In personam –Long arm statutes +minimum contacts Uberti In rem Subject Matter –General jx –Limited jx Original or Appellate
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Venue The most appropriate location, usually in the county where the incident occurred. –Except when pretrial publicity would unfairly prejudice the defendants.
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Standing A legally protected and tangible interest at stake. Either suffered a harm or been threatened with a harm. –Friends of the Earth, Inc. v. Crown Central Petroleum Corp.
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Appellate Courts Questions of law, not questions of fact* –Not a new trial –No witnesses –Review the record only –Defer to the trial court on questions of fact –*unless clearly erroneous
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ADR Advantages –Less costly –Faster resolution –More flexible remedies –Private resolution
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Types of ADR Negotiation –Mini-trial, summary jury trials, conciliation, neutral case evaluation Mediation –Neutral third party –Courts may require this before trial Arbitration –Arbitrator renders a decision
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Types of ADR (cont’d) Arbitration –Informal procedural rules –Leads to an award –Limited appeal process –Clause in commercial and employment K’s Gilmer v. Interstate/Johnson Lane Corp
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