Dispute Resolution

1. CHAPTER 3 Dispute Resolution

2. Click your mouse anywhere on the screen when you are ready to advance the text within each slide. After the starburst appears behind the blue triangles, the slide is completely shown. You may click one of the blue triangles to move to the next slide or the previous slide.

3. Quote of the Day 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

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 settlement offers and counter-offers. • May be face-to-face or working 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. State Court System 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 Click on any box below for a definition of the jurisdiction of that trial court. 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

7. Federal Courts -- Two kinds of civil lawsuits permitted • Federal Question Cases • A claim based on the US 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 $75,000

8. The Federal Court System United StatesSupreme Court (Highest Appeals Court) Click here to see a map of the 12 Circuits of the U.S. Courts of Appeals. Nine Justices; appointed for life; may refuse to hear a case; final authority * Lower Appeals Courts Three judges hear each case, brought up from the District Courts. U.S. Court of Appeals for the Federal Circuit Hears appeals from specialized trial courts. U.S. Courts of Appeals (12 Circuits) 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. Court of International Trade U.S. Tax Courts U.S. Patent & Trademark Office U.S. Claims Court Primary Trial Court Trial Courts of Limited (Specific) Jurisdiction Trial Courts of Limited (Specific) Jurisdiction Various Federal Agencies

9. 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.

10. 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.

11. Discovery -- next step after pleadings • 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 • Requests for Admission -- each side may request that undisputed facts be admitted or denied, to avoid wasting time on them Discovery allows both sides to uncover evidence, encouraging a settlement without trial or ensuring few surprises during a trial.

12. 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.

13. Beginning a Trial Process called voir dire • Jury Selection: 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

14. 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.

15. 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.

16. The Defendant’s Case • Opening Arguments • 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.

17. 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.

18. 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 next 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.

19. 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.