Ch 3 - Dispute Resolution

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Litigator

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A lawyer who handles court cases.

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Litigation

Back 2

Lawsuits, the process of filing claims in court and ultimately going to trial.

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Alternative dispute resolution (ADR)

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Any other formal or informal process used to settle disputes without resorting to a trail.

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Types of Alternative Dispute Resolution:

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1. Negotiation
2. Mediation
3. Arbitration
4. Mandatory Arbitration

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Negotiation

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Occurs in most cases. The great majority of disputes are resolved this way.

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Mediation

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A neutral person, called a mediator, attempts to coax the two disputing parties toward a voluntary settlement. Of all forms of dispute resolution, mediation probably offers the strongest "win-win" potential.

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Arbitration

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In this form of ADR, the parties agree to bring in a neutral third party, but with a major difference: the arbitrator has the power to impose an award. Arbitration is generally faster and cheaper than litigation. Parties in arbitration give up many rights that litigants retain, including discovery and class action.

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Discovery

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allows the two sides in a lawsuit to obtain, before trail, documentary and other evidence from the opponent.

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Class action

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A suit in which one injured party represents a large group of people who have suffered similar harm.

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Mandatory Arbitration

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This variation contains one big difference: the parties agree in advance to arbitrate any disputes that may arise.

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Trial Courts

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determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions.

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Jurisdiction

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refers to a court's power to hear a case

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Appellate Courts

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Generally accept the facts given to them by trial courts and review the trial record to see if the court made errors of law. Three or more judges hear the case. There are no juries, ever. These courts do not hear witnesses or take new evidence.

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Appellant

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The party who appeals a lower court decision to a higher court.

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Appellee

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The party opposing an appeal from a lower court to a higher court.

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Brief

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The written legal argument that an attorney files with an appeal court.

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Reverse

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The power of an appellate court to overrule a lower court and grant judgment for the party that had lost in the lower court.

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Affirm

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A decision by an appellate court to uphold the judgment of a lower court.

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State Supreme Court

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The highest court in the state and it accepts some appeals from the court of appeals. In most states, seven judges, often called justices, sit on the Supreme Court.

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Federal Courts

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Established by the US Constitution, which limits what kinds of cases can be brought in any federal court.

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Federal Question Cases

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A claim based on the United States Constitution, a federal statute or a federal treaty.

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Diversity Jurisdiction

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One of the two main types of civil cases that a US district court has the power to hear. It involves a lawsuit between citizens of different states, in which at least one party makes a claim for more than $75,000. The theory behind diversity jurisdiction is that courts of one state might be biased against citizens of another state.

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Trial Courts:

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1. United States District Court - The primary trial court in the federal system
2. Other Trial Courts - Bankruptcy Court, Tax Court, United States Court of International Trade
3. Judges - The President of the US nominates all federal court judges, from district court to Supreme Court. The nominees must be confirmed by the Senate.

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Appellate Courts:

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1. United States Court of Appeals - These are the intermediate courts of appeals. They are divided into "circuits," which are geographical areas.
2. United States Supreme Court - The highest court on the country. There are nine justices on the Court. One justice is the chief justice and the other eight are associate justices. When they decide a case, each justice casts an equal vote. The Supreme Court has the power to hear appeals in any federal case and in certain cases that began in state courts. It is up to the Court whether or not it will accept a case. most cases accepted involve either an important issue of constitutional law or an interpretation of a major federal statute.

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Writ of certiorari:

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1. Writ: An order from a government compelling someone to do a particular thing.
2. Certiorari, writ of: Formal notice from the United States Supreme that it will accept a case for review.

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Pleadings

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The documents that begin a lawsuit: the complaint, the answer, the counter-claim and reply.

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Complaint

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A short, plain statement of the facts she is alleging and the legal claims she is making. The purpose of the complaint is to inform the defendant of the general nature of the claims and the need to come into court and protect his interests.

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Summons

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A paper ordering the defendant to answer the complaint within 20 days.

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Answer

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Tells the court and the plaintiff exactly what issues are in dispute.

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Default Judgment

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If the defendant fails to answer in time, the plaintiff will ask for a default judgment, meaning a decision that the plaintiff wins without a trial.

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Counter-Claim

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meaning a second lawsuit by the defendant against the plaintiff.

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Reply

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an answer to a counter-claim.

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Judgment on the Pleadings

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A party can ask the court for a judgment based simply on the pleadings themselves, by filling a motion to dismiss.

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Motion

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A formal request to the court that the court take some step or issue some order.

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Motion to Dismiss

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A request that the court terminate a case without permitting it to go further

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Discovery

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The critical, pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case. The parties are entitled to discover anything that could reasonably lead to valid evidence.

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Interrogatories

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Written questions that the opposing party must answer, in writing, under oath.

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Depositions

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These provide a chance for one party's lawyer to question the other party, or a potential witness, under oath.

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Deponent

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The person being questioned in a deposition.

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Production of documents and Things

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A form of discovery is which one party demands that the other furnish original documents or physical things, related to the suit, for inspection and copying.

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Physical and Mental Examination

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A party may ask the court to order an examination of the other party, if his physical or mental condition is relevant, for example, in a case of medical malpractice.

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Requests for Admission

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Either party can insist that the opposing party admit or deny certain facts, to avoid wasting time on points not in dispute.

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Motion for a protective order

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A request that the court limit a party's discovery by decreasing the number of depositions.

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Motion to compel answers to interrogatories

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A formal request that the court order a party to supply more complete answers.

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Summary Judgment

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A ruling by the court that no trial is necessary because there are no essential facts in dispute.

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Voir Dire

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The process of selecting a jury, which means "to speak the truth." The court's goal is to select an impartial jury; the lawyers will each try to get a jury as favorable to their side as possible.

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Challenges for cause

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An attorney's request, during, voir dire, to excuse a prospective juror because of apparent bias.

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Peremptory Challenges

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During voir dire, a request by one attorney that a prospective juror be excused for an unstated reason.

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Burden of Proof

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In civil cases, the plaintiff has the burden of proof. That means that the plaintiff must convince the jury that its version of the case is correct; the defendant is not obligated to disprove the allegations.

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Preponderance of the evidence

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The level of proof that a plaintiff must prevail in a civil lawsuit. It means that the plaintiff must offer evidence that, in sum, is slightly more persuasive than the defendant's evidence.

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Reasonable Doubt

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The level of proof that the government must meet to convict the defendant in a criminal case. The fact-finder must be persuaded to a very high degree of certainty that the defendant did what the government alleges.

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Direct Examination

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When a lawyer asks questions of her own witness.

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Cross-examine

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When a lawyer ask questions of an opposing witness.

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Law of Evidence

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The law that determines what questions a lawyer may ask and how the questions are to be phrased, what answers the witness may give, and what documents may be introduced. The goal is to get the best evidence possible before the jurors so they can decide what really happened. In general, witnesses may only testify about things they saw or heard.

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Direct Verdict

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A ruling that the plaintiff has entirely failed to prove some aspect of her case. A direct verdict is permissible only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it.

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Judgement non obstante veredicto

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"Judgement notwithstanding the verdict." A trail judge overturns the verdict of the jury and enters a judgement in favor of the opposing party.

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Precedent

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Earlier decisions by the state appellate court on similar or identical issues.

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Affirm

Back 58

Allowing the decision to stand.

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Modify

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Change the decision, for example, by affirming that the plaintiff wins but decreasing the size of the award.

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Reverse

Back 60

Changing the ruling towards the opposite party.

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Remand

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Nullifying the lower courts decision and returning the case to the lower court for a new trial.

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Harmless Error

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Fair in spite of a mistake.

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Chapter Review #1

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Alternative dispute resolution (ADR) is any formal or informal process to settle disputes without a trial. Mediation, arbitration, and other forms of ADR are growing in popularity.

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Chapter Review #2

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There are many systems of courts, one federal and one in each state. A federal court will hear a case only if it involves a federal question or diversity jurisdiction.

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Chapter Review #3

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Trial courts determine facts and apply the law to the facts; appeals courts generally accept the facts found by the trial court and review the trial record for errors of law.

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Chapter Review #4

Back 66

A complaint and an answer are the two most important pleadings, that is, documents that start a lawsuit.

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Chapter Review #5

Back 67

Discovery is the critical pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case. Important forms of discovery include interrogatories, depositions, production of documents and objects, physical and mental examinations, and requests for admission.

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Chapter Review #6

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A motion is a formal request to the court.

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Chapter Review #7

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Summary judgment is a ruling by the court that no trial is necessary because there are no essential facts in dispute.

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Chapter Review #8

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Generally, both plaintiff and defendant may demand a jury in any lawsuit for money damages.

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Chapter Review #9

Back 71

Voir dire is the process of selecting jurors in order to obtain an impartial panel.

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Chapter Review #10

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The plaintiff's burden of proof in a civil lawsuit is preponderance of the evidence, meaning that its version of the facts must be at least slightly more persuasive than the defendant's. In a criminal prosecution, the government must offer proof beyond a reasonable doubt in order to win a conviction.

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Chapter Review #11

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The rules of evidence determine what questions may be asked during trial, what testimony may be given, and what documents may be introduced.

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Chapter Review #12

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The verdict is the jury's decision in a case. The losing party may ask the trial judge to overturn the verdict, seeking a judgment non obstante veredicto or a new trial. Judges seldom grant either.

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Chapter Review #13

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An appeals court has many options. The court may affirm, upholding the lower court's decision; modify, changing the verdict but leaving the same party victorious; reverse, transforming the loser into the winner; and/or remand, sending the case back to the lower court.

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Practice Test #1

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You plan to open a store in Chicago, specializing in beautiful rugs imported from Turkey. You will work with a native Turk who will purchase and ship the rugs to your store. You are wise enough to insist on a contract establishing the rights and obligations of both parties and would prefer an ADR clause. But you want to be sensitive to different cultures and do not want a clause that will magnify a problem or alienate the parties. Is there some way you can accomplish all of this?

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Practice Test #2

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Solo Serve Corp. signed a lease for space in a shopping center. The lease contained this clause: “Neither Landlord nor tenant shall engage in or permit any activity at or around the Demised Premises which violates any applicable law, constitutes a nuisance, or is likely to bring discredit upon the Shopping Center, or discourage customers from patronizing other occupants of the Shopping Center by other than activities customarily engaged in by reputable businesses.” Westowne Associates, the landlord, later leased other space in the center to The Finish Line, an off-track betting business that also had a license to sell food and liquor. Solo Serve sued, claiming that Westowne had breached the lease. Solo Serve requested either a permanent injunction barring The Finish Line from using the center or that The Finish Line pay the cost of relocating its own business. The case raises two questions. The minor one is, did Westowne violate the lease?

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Practice Test #2 Continued

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The major one is, how could this dispute have been prevented? It ultimately went to the United States Court of Appeals, costing both sides much time and money.

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Practice Test #3
State which court(s) have jurisdiction as to each of these lawsuits:

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a. Pat wants to sue his next-door neighbor Dorothy, claiming that Dorothy promised to sell him the house next door.
b. Paula, who lives in New York City, wants to sue Dizzy Movie Theatres, whose principal place of business is Dallas. She claims that while she was in Texas on holiday, she was injured by their negligent maintenance of a stairway. She claims damages of $30,000.
c. Phil lives in Tennessee. He wants to sue Dick, who lives in Ohio. Phil claims that Dick agreed to sell him 3,000 acres of farmland in Ohio, worth over $2 million.
d. Pete, incarcerated in a federal prison in Kansas, wants to sue the United States government. He claims that his treatment by prison authorities violates three federal statutes.

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Practice Test #4

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Probationary schoolteachers sued the New Madrid, Missouri, school district, claiming that the school district refused to give them permanent jobs because of their union organizing activity. The defendant school district claimed that each plaintiff was refused a permanent job because of inferior teaching. During discovery, the plaintiffs asked for the personnel files of probationary teachers who had been offered permanent jobs. The school district refused to provide them, arguing that the personnel files did not indicate the union status of the teachers and therefore would not help the plaintiffs. The trial court ruled that the school district need not release the files. On appeal, the plaintiffs argue that this hindered their ability to prove the real reasons they had been fired. How should the appeals court rule?

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Practice Test #5

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Students are now suing schools for sexual harassment. The cases raise important issues about the limits of discovery. In a case in Petaluma, California, a girl claimed that she was harassed for years and that the school knew about it and failed to act. According to press reports, she alleges that a boy stood up in class and asked, “I have a question. I want to know if [Jane Doe] has sex with hot dogs.” In discovery, the school district sought the parents' therapy records, the girl's diary, and a psychological evaluation of the girl. Should they get those things?

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Practice Test #6

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British discovery practice differs from that in the United States. Most discovery in Britain concerns documents. The lawyers for the two sides, called solicitors, must deliver to the opposing side a list of all relevant documents in their possession. Each side may then request to look at and copy those it wishes. Depositions are rare. What advantages and disadvantages are there to the British practice?

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Practice Test #7

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ETHICS Trial practice also is dramatically different in Britain. The parties' solicitors do not go into court. Courtroom work is done by different lawyers, called barristers. The barristers are not permitted to interview any witnesses before trial. They know the substance of what each witness intends to say, but do not rehearse questions and answers, as in the United States. Which approach do you consider more effective? More ethical? What is the purpose of a trial? Of pretrial preparation?

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Practice Test #8

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Claus Scherer worked for Rockwell International and was paid over $300,000 per year. Rockwell fired Scherer for alleged sexual harassment of several workers, including his secretary, Terry Pendy. Scherer sued in United States District Court, alleging that Rockwell's real motive in firing him was his high salary. Rockwell moved for summary judgment, offering deposition transcripts of various employees. Pendy's deposition detailed instances of harassment, including comments about her body, instances of unwelcome touching, and discussions of extramarital affairs. Another deposition, from a Rockwell employee who investigated the allegations, included complaints by other employees as to Scherer's harassment. In his own deposition, which he offered to oppose summary judgment, Scherer testified that he could not recall the incidents alleged by Pendy and others. He denied generally that he had sexually harassed anyone. The district court granted summary judgment for Rockwell.

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Practice Test #8 Continued

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Was its ruling correct?

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Practice Test #9

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Lloyd Dace worked for ACF Industries as a supervisor in the punchpress department of a carburetor factory. ACF demoted Dace to an hourly job on the assembly line, and Dace sued, claiming that ACF discriminated on the basis of age. At trial, Dace showed that he had been 53 years old when demoted and had been replaced by a man aged 40. He offered evidence that ACF's benefits supervisor had attended the meeting at which his demotion was decided, and that the benefits supervisor was aware of the cost savings of replacing Dace with a younger man. At the end of Dace's case, ACF moved for a directed verdict and the trial court granted it. The judge reasoned that Dace's entire case was based on circumstantial evidence. He held that it was too speculative for the jury to infer age discrimination from the few facts that Dace had offered. Was the trial court correct?

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Practice Test #10

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YOU BE THE JUDGE WRITING PROBLEM Apache Corp. and El Paso Exploration Co. operated a Texas gas well that exploded, burning out of control for over a year. More than 100 plaintiffs sued the two owners, claiming damage to adjoining gas fields. The plaintiffs also sued Axelson, Inc., which manufactured a valve whose failure may have contributed to the explosion. Axelson, in turn, sued Apache and El Paso. Axelson sought discovery from both companies about an internal investigation they had conducted, before the blowout, concerning kickbacks (illegal payments) at the gas field. Axelson claimed that the investigation could shed light on what caused the explosion, but the trial court ruled that the material was irrelevant, and denied discovery. Axelson appealed. Is the investigation discoverable?

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Practice Test #10 Continued

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Argument for Axelson: If the companies investigated kickbacks, they were concerned about corruption and mismanagement—both of which can cause employees to cut corners, ignore safety concerns, fabricate reports, and so forth. All of those activities have the potential to cause a serious accident. All parties are entitled to discover material that may lead to relevant evidence, and that could easily happen here. Argument for Apache and El Paso: This is a fishing expedition. The investigation was completed before the explosion and is completely unrelated. Any internal investigation has the potential (a) to reveal valuable business or trade secrets and (b) to prove embarrassing to the companies investigated. Axelson's motive is to force the two owners to settle in order to avoid such revelations. Discovery is not supposed to be a weapon.

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Practice Test #11

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Imogene Williams sued the U.S. Elevator Corp. She claimed that when she entered one of the company's elevators, it went up three floors but failed to open, fell several floors, stopped, and then continued to erratically rise and fall for about 40 minutes. She claimed physical injuries and emotional distress. At trial, U.S. Elevator disputed every allegation. When the judge instructed the jury, he asked them to decide whether the company had been negligent. If it had, the jury was to decide what physical injuries Williams had suffered. The judge also instructed them that she could receive money for emotional damages only if the emotional damages resulted from her physical injury. The jury found for U.S. Elevator, deciding that it had not been negligent. On appeal, Williams argues that the judge was wrong in stating that the emotional injuries had to result from the physical injuries. The court of appeals agreed that the instruction was incorrect.

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Practice Test #11 Continued

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There could be emotional damages even if there were no physical injuries. What appellate remedy is appropriate?

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Practice Test #12

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ROLE REVERSAL Write a multiple-choice question that illustrates the unique significance of summary judgment: that there is no need for a trial because there are no essential facts in dispute.