CHAPTER 3 Traditional and Online Dispute Resolution

1. CHAPTER 3Traditional and Online Dispute Resolution

2. Basic Judicial Requirements Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute.

3. Many Facets of Jurisdiction Personal Jurisdiction Jurisdiction over Property Jurisdiction over Subject Matter Original or Appellate Jurisdiction Federal Court Jurisdiction Concurrent or Exclusive Jurisdiction

4. Jurisdiction Over Persons Power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate. Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.

5. Jurisdiction Over Property Also called “in rem” jurisdiction. Power to decide issues relating to property, whether the property is real, personal, tangible, or intangible. A court generally has in rem jurisdiction over any property situated within its geographical borders.

6. Jurisdiction over Subject Matter • This is a limitation on the types of cases a court can hear, usually determined by federal or state statutes. • For example, bankruptcy, family or criminal cases. • General (unlimited) jurisdiction. • Limited jurisdiction.

7. Original and Appellate Jurisdiction Courts of original jurisdiction is where the case started (trial). Courts of appellate jurisdiction have the power to hear an appeal from another court.

8. Exclusive vs. Concurrent Jurisdiction Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case. Concurrent: more than one court can hear the case.

9. Sara L. Hounshell September 17, 2013 Federal Jurisdiction

10. Federal Legal System

11. Federal Judicial System

12. United States Supreme Court

14. Southern District of Texas

15. Federal Court Jurisdiction • “Federal Question” cases in which the rights or obligations of a party are created or defined by some federal law. • “Diversity” cases where: • The parties are not from the same state, and • The amount in controversy is greater than $75,000.

16. Standing to Sue In order to bring a lawsuit, a party must have “standing” to sue. Standing is sufficient “stake” in the controversy; party must have suffered a legal injury. Standing can be conferred by statute or by common law.

17. State and Federal Courts Texas Courts Federal Courts Ct. Criminal Appeals Supreme Court U.S. Supreme Court Court of Appeals Circuit Courts of Appeals District Court County Court Justice Court Municipal Court U.S. District Court

18. Trial Courts “Courts of record”-court reporters. Opening and closing arguments. Juries are selected. Evidence, such as witness testimony, physical objects, documents, and pictures, is introduced. Witnesses are examined and cross-examined. Verdicts and Judgments are rendered.

19. Venue Venue is concerned with the most appropriate location for the trial. Venue is determined by statute. In Texas, venue in civil cases is governed by the Texas Civil Practice & Remedies Code; in Criminal Cases by the Texas Code of Criminal Procedure.

20. Texas Venue – General Rule § 15.002. VENUE: GENERAL RULE. (a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought: (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; (2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person; (3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.

21. Texas – Mandatory Venue Texas law provides for mandatory venue in certain kinds of cases; where there is such a mandatory provision, it trumps the general rule. Some examples: • LAND. Certain suits relating to land (partition, suits to determine title, recover property, or for damages to land) must be brought in the county in which all or a part of the land is located. • LANDLORD-TENANT. Suits arising out of a lease must be brought in the county where the premises are located. • MANDAMUS AGAINST STATE DEP’T HEAD. Must seek mandamus against the head of a State Department in Travis County. • LIBEL, SLANDER OR IVASION OF PRIVACY. Where the Plaintiff lived at the time the claim accrued, where the defendant resided at the time of suit, or the residence of the defendant, if the Plaintiff chooses that venue.

22. Civil Procedures in State Court • Pleadings. • Plaintiff’s Complaint. • Citation/Summons. • Defendant’s Answer/General Denial. • Pre-Trial Motions. • Motion for Judgment on the Pleadings. • Motion for Summary Judgment.

23. Trial Process It may not seem like it, but trials follow a pretty structured and linear process: • Plaintiff’s petition sets forth distinct and recognized “causes of action.” • Identifies the facts that (i) support those causes of action and (ii) plaintiff will prove. • Defendant’s answer may admit all or none of Plaintiff’s facts. It may contain objections to the petition, assert affirmative defenses, counterclaims or crossclaims. • Trial proceeds on the facts identified by the parties’ pleadings and narrowed down by the discovery process.

24. Civil Procedures in State Court • Discovery. • Depositions and Interrogatories. • Requests for Documents. • Requests for Admission. • Pre-Trial Conference. • Jury Selection (Voir Dire).

25. Causes of Action These are claims for legal relief that are recognized by the law. Some examples are: • Breach of a contract • Negligence • Trespass • Violation of Deceptive Trade Practices Act • Libel

26. Causes of Action Causes of action can be established by decisions of courts (common law) or by legislatures (statutes). • Generally, one has to prove a set of “elements” that make up a cause of action. • Elements are factual occurrences that, taken together, give rise to some legal claim.

27. Causes of Action For example, Anderson believes that Billings has cheated him by inducing him to invest in a non-existent Chinchilla farm. Might he have a cause of action for fraud? • This would depend on whether Anderson can prove the elementsof fraud, which are: • Anderson made a false statement • Anderson knew the statement was false and intended to deceive Billings • Billings justifiably relied on the false statement • Billings suffered a loss, and • The loss was suffered because of Billings’ false statement

28. Proof at Trial There must be evidence at trial of each element of a cause of action. The jury (or the judge if it is a “bench trial” and the judge is also acting as the fact finder) decides what happened; what the facts are. If there is no evidence on which to base their factual determination, there is error in the trial and an appeal will likely result in reversal.

29. Civil Procedures in State Court • Trial. • Opening arguments. • Plaintiff’s Case in Chief. • Defense cross-examines Plaintiff’s witnesses. • Defense Case in Chief. • Plaintiff cross-examines Defense witnesses. • Closing Arguments. • Verdict / Motion JNOV /Judgment. • Appeal.

30. Appellate Courts Middle level of the court systems. Review proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law. Generally, appellate courts will consider questions of law, but not questions of fact.

31. Courts of Appeal

32. Supreme Courts • Also known as courts of last resort. • The two most fundamental ways to have your case heard in a supreme court are: • Appeals of Right. • By Writ of Certiorari. • These include: U.S. Supreme Court; the Texas Supreme Courtand the Texas Court of Criminal Appeals

33. Supreme Courts In Texas, there are two “Courts of Last Resort:” - Texas Supreme Court Hears appeals in Civil cases from the intermediate Courts of Appeal - Texas Court of Criminal Appeals Hears appeals of Criminal cases only

34. Alternative Dispute Resolution Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve. There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.

35. ADR ADR describes any procedure or device for resolving disputes other than the traditional judicial process. Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. Most common: negotiation, mediation, arbitration.

36. Negotiation Less than 10% of cases reach trial. Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case. Successful negotiation involves thorough preparation, from a position of strength.

37. Assisted Negotiation Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rd party (e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement. Expert evaluations. Conciliation: 3rd party assists in reconciling differences.

38. Mediation • Involves a neutral 3rd party (mediator). • Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.” • Advantages: few rules, customize process, parties control results (win-win). • Disadvantages: mediator fees, no sanctions or deadlines.

39. Arbitration Many employment contracts have binding arbitration clauses. Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.

40. Arbitration Disadvantages Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence. Arbitrators do not have to issue written opinions. Generally, no discovery available.

41. Arbitration Process Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award. Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

42. Ethics What are Ethics? How might you approach an ethical issue? - Consequences analysis - Actions analysis - Some of both? Some examples:

43. Ethics – Tough Questions You can only rescue one of each of the following, which do you save? • A child or an adult • A stranger or your dog • Hitler or lassie • Your spouse or a Nobel Laureate

44. More… A dog or a weasel Your entire family or the entire canine species A bottle with the cure for cancer or your brother A bottle with the cure for cancer or your brother who just gave you one of his kidneys

45. Ethics Ethical Dilemmas – Class Project