CHAPTER 3

1. CHAPTER 3 JUDICIAL, ALTERNATIVE AND ONLINE DISPUTE RESOLUTION © 2010 Pearson Education, Inc., publishing as Prentice-Hall

2. Pretrial Litigation Process Pleadings Discovery Dismissals and Pretrial Judgments Settlement Conference

3. Pleadings Complaint Answer Cross-Complaint Reply

4. Complaint and Summons Plaintiff files Lists parties Alleges facts and laws violated Prayer for relief Court issues summons Directs defendant to appear and answer

5. Answer Defendant must file answer Admitting or denying allegations Stating affirmative defenses If all allegations admitted, judgment entered against defendant If no answer filed, default judgment entered

6. Cross-Complaint and Reply Defendant may sue plaintiff for damages or some other remedy Original plaintiff must file a reply and serve on defendant

7. Intervention and Consolidation Intervention Other parties have interest in lawsuit and become parties E.g., bank with security interest in property that is subject of lawsuit Consolidation Several plaintiffs have filed lawsuits stemming from same situation Court will consolidate if no undue prejudice Reduces strain on court system

8. E-Filing • “Virtual courthouse” allows e-filing of documents and electronic conferences • Available in some states • Mandatory in some states • Advantages • Saves paper • Saves time • Easier to track documents

9. Statute of Limitations Establishes the period during which plaintiff must bring a lawsuit against a defendant. If a lawsuit is not filed within this time period, plaintiff loses right to sue. Established for each type of lawsuit. E.g., 2 years for tort claim 4 years for breach of contract under UCC

10. Discovery A legal process during which both parties discover facts of the case from the other party and witnesses prior to trial.

11. Discovery(continued) Purposes: Preventing surprise Allowing parties to thoroughly prepare for trial Preserving evidence Saving court time Promoting settlement of cases

12. Discovery(continued) The major forms of discovery are: Depositions Interrogatories Production of documents Physical and mental examination

13. Depositions Oral testimony given by party or witness Under oath Parties must give depositions Witnesses can be compelled by subpoena Evidence preserved by court reporter or on videotape May be used to impeach testimony at trial

14. Interrogatories Written questions submitted by one party to the other Must be answered and returned within a set time period Answers affirmed under oath

15. Production of Documents Documents that parties request the other side to produce or make available for review E.g., company records, correspondence, memoranda Discoverable if may lead to admissible evidence

16. Examinations If the physical or mental condition of a party are in question, an examination by an expert may be required.

17. Dismissals and Pretrial Judgments Pretrial Motion A motion a party can make to try to dispose of all or part of a lawsuit prior to trial. Motion for judgment on the pleadings Motion for summary judgment

18. Dismissals and Pretrial Judgments(continued) Motion for Judgment on the Pleadings Even if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these facts.

19. Dismissals and Pretrial Judgments(continued) Motion for Summary Judgment Motion that asserts that there are no factual disputes to be decided by the jury. Judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by affidavits, documents, and deposition testimony.

20. Settlement Conference Federal court rules and most state rules allow for a pretrial hearing or settlement conference In judge’s chambers At least 95% of all cases settle before trial

21. Cost-Benefit Analysis of a Lawsuit Consider: Probability of winning or losing. Never certain. The amount of money to be won or lost. Lawyers’ fees and other costs of litigation. Loss of time by managers and other personnel. Effect on relationships and reputation. Aggravation and psychological costs. Other?

22. Trial 7th Amendment guarantees the right to a jury trial in cases in federal court. Most state constitutions contain a similar guarantee for state court actions.

23. Trial(continued) If either party requests a jury, the trial will be by jury. If both parties waive their right to a jury, the trial will be without a jury. Many business disputes are bench trials

24. Phases of Trial Jury Selection Opening Statements Plaintiff’s Case Defendant’s Case Rebuttal and Rejoinder Closing Arguments Jury Instructions Jury Deliberation Entry of Judgment

25. Appeal In a civil case, either party can appeal the trial court’s decision. appeal can be filed once a final judgment is entered. In a criminal case, only a defendant can appeal.

26. Appeal(continued) Appeal is made to the appropriate appellate court, according to timetable set by procedural rules. Appellate court will reverse lower court for errors of law. Will reverse finding of fact only if it is unsupported by any evidence.

27. Alternative Dispute Resolution (ADR) Methods of resolving disputes other than litigation. Developed in response to the expense and difficulty of bringing a lawsuit.

28. Alternative Dispute Resolution (ADR)(continued) Mediation Negotiation Arbitration Mediation Conciliation Conciliation Mini-trial Judicial Referee Fact-Finding

29. Arbitration Common in commercial and labor disputes Parties choose neutral third party to hear evidence and testimony and decide the case Arbitrator makes a decision and enters an award Arbitration can be binding or non-binding

30. Key ADR Legislation Uniform Arbitration Act Adopted by half of the states. Promotes the arbitration of disputes at the state level. Federal Arbitration Act Arbitration agreements involving commerce are valid, irrevocable, and enforceable contracts.

31. Mediation and Conciliation Mediation Parties choose a neutral third party to assist them. Parties reach settlement. Mediator does not make judgment or issue award. Conciliation Parties use an interested third party to act as mediator.

32. Mini-trial Short session in which lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute

33. Fact-Finding Process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides

34. Judicial Referee Court-appointed referee who conducts a private trial and renders a judgment Parties reserve their right to appeal

35. Online Dispute Resolution Register with ADR service provider online. Service provider notifies other party by email. Parties trade offers and counter-offers with aim of settling dispute, or online mediator may be involved. “Chat rooms” used in process. May be quicker, cheaper, and less adversarial than traditional methods.