Chp 3: Courts And Alternative Dispute Resolution

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Judicial Review

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The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch; essential rule of the courts(judiciary) is to interpret and apply the laws.

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Jurisdiction

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The authority of a court to hear and decide.

There is personal jurisdiction and rem jurisdiction.

There are courts of limited and general jurisdiction.

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Personal Jurisdiction

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When a court can exercise authority over any person or business that resides in a certain geographic area such as state trial courts having jurisdiction over residents and businesses residing in its state.

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Rem Jurisdiction

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A court can exercise jurisdiction over property that is located within its boundaries even if the owner resides in another state.

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Long Arm Statute

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A state statute that permits a state to exercise jurisdiction over nonresident defendants; a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state.

However, to justify the jurisdiction a court must be convinced that the defendant has minimum contacts with the state.

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Minimum Contacts

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Means that the defendant must have enough of a connection to the state for the judge to conclude that it's fair for the state to exercise power over the defendant.

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Corporate Contacts

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Corporation is normally subject to personal jurisdiction in the state in which it's incorporated, has its principal office, and is doing business.

Minimum contact requirement met for courts if the corporation advertises or sells its products within the state, or places its goods into the stream of commerce with the intent that the goods are to be sold in the state.

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Courts of General(unlimited) Jurisdiction

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Examples include state trial courts and federal district courts.

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Courts of Limited Jurisdiction

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Examples include probate courts, bankruptcy courts, domestic relation or family courts, Islamic law courts

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Probate Courts

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A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate; relating to the transfer of a person's assets and obligations after death, including matters relating to custody and guardianship of children.

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Bankruptcy Courts

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A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.

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Jurisdiction over Subject Matter

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A limitation on the type of cases a court can hear, which is usually defined in the statue or constitution creating the court.

Can be limited by the subject of the lawsuit and the amount in controversy(felony or misdemeanor).

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Original and Appellate Jurisdiction

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Courts with original jurisdiction are trial courts, meaning they are courts in which lawsuits begin, trials take place, and evidence is presented, while courts with appellate jurisdiction are reviewing courts or appellate courts in which cases can only be brought to them on appeal from an order or a judgment of a trial court or other lower court.

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District Courts

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Federal trial courts.

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Jurisdiction of Federal Courts

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Federal courts have subject matter jurisdiction in federal questions and diversity of citizenship.

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Federal Question

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A question that pertains to the U.S. constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case; a person's right under the US constitution; Federal court will apply federal law

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Diversity of Citizenship

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A basis of federal court jurisdiction over a lawsuit between citizens of different states and countries; federal courts will apply relevant state laws

Most basic case has two requirements

1. plaintiff and defendant must be residents of two different states.

2. dollar amount in controversy must exceed $75,000

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Concurrent Jurisdiction

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Jurisdiction that exists when two different courts have the power to hear a case, as in cases involving diversity of citizenship.

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Exclusive Jurisdiction

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Jurisdiction that exists when a case can only be heard in a particular court or type of court, such as cases involving federal crimes(bankruptcy, patents, copyrights, lawsuits against the US).

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Jurisdiction in Cyberspace

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Courts exercise the sliding scale standard to exercise jurisdiction in cases involving internet transactions.

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Sliding-Scale Standard

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Three types of internet business contacts:

1. Substantial business conducted over the internet(with contracts and sales); proper jurisdiction

2. Some interactivity through a Web site; Improper jurisdiction

3. Passive advertising; not appropriate

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International Jurisdiction Issues

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Most world courts are indicating that minimum contacts are enough to compel the defendant to appear and that a physical presence is not necessary.

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Venue

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The geographic district in which a legal action is tried and from which the jury is selected; most appropriate physical location for for a trial

Pretrial publicity or other factors may require a change in venue.

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Standing to Sue

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The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit(seeking relief).

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Justiciable Controversy

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A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.

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The State Court Systems

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Include:

1. Trial Courts of limited jurisdiction

2. trial courts of general jurisdiction

3. appellate courts

4. State's highest court(state supreme court)

Generally any person may plead the case before a trial court, and then, if he or she loses, appeal to at least one level of appellate court.

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Trial Courts

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Courts in which trials are held and testimony taken, including courts of limited and general jurisdiction.

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Small Claims Courts

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Inferior trial courts with limited jurisdiction that hear only civil cases involving claims of less than a certain amount, such as $5,000 and where parties can litigate informally without an attorney.

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Inferior Trial Courts

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Examples include small claims courts and local municipal courts that hear mainly traffic cases.

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Appellate or Reviewing Courts

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Generally do not conduct new trials, in which evidence is submitted to the court and witnesses are examined, but rather an appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error.

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Question of Fact

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In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point.

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Question of Law

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In a lawsuit, an issue involving the application or interpretation of a law.

Is what appellate courts generally focus on.

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Highest State Courts

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The decisions of each state's highest court are final on all questions of state law, but in issues of federal law, a decision made by a state supreme court can be overruled by the United States Supreme Court.

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The Federal Court System

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Three tiered model:

1. U.S. district courts(trial courts of general jurisdiction) and various courts of limited jurisdiction

2. U.S. court of appeals(intermediate court of appeals)

3. The United States Supreme Court

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U.S. District Courts

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The equivalent of state courts with general jurisdiction, have original jurisdiction in federal matters, and where federal cases originate.

94 of them in the U.S. and at least one in each state.

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U.S. Court of Appeals

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There are 13 U.S. court of appeals(U.S. circuit court of appeals) where the federal courts of appeals for 12 of the circuits hear appeals from the federal district courts located within their respective judicial circuits and the The Court of Appeals for the 13th circuit(Federal Circuit) has national appellate jurisdiction over certain types of cases, such as patent law and cases with the U.S. government as the defendant.

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The United States Supreme Court

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Highest level of three tiered model(all other courts considered inferior), has nine justices, primarily functions as an appeals court reviewing any case decided by any federal court of appeals and some cases decided in state courts.

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Writ of ceritorari

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A writ from a higher court asking a lower court for the record of a case.

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Rule of Four

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A rule of the U.S. Supreme Court under which the court will not issue of writ of ceritorari unless at least 4 justices approve of the decision to issue the writ.

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Petitions Granted by The Court

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Generally, the Supreme Court grants petitions when cases raise important constitutional questions or when the lower courts are issuing conflicting decisions on a significant issue.

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Litigation

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The process of resolving a dispute(lawsuit) through the court system

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Pleadings

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Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case; the complaint and answer(and the counterclaim and reply); inform each party of the other's claims and specify the issues involved in the case.

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Complaints

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The pleading made by a plaintiff alleging wrongdoing on the part of the defendant. When filed with a court, the complaint initiates a lawsuit.

Contains:
1. A statement of facts necessary for the court to take jurisdiction.
2. A brief summary of the facts necessary to show that the plaintiff is entitled to relief
3. A statement of the remedy that the plaintiff is seeking

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Summons

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A document informing a defendant that a legal action has been commenced against her or him and that the defendant must appear in court on a certain date to answer the plaintiff's complaint.

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Default Judgment

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A judgement entered by a court against a defendant who is failed to appear in a court to answer or defend against the plaintiff's claim.

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Counterclaim

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A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

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Reply

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Procedurally, a plaintiff's response to a defendant's answer.

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Affirmative Defense

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Defendant can admit to the truth of the plaintiff's complaint, but raise new facts that may result in the dismissal of the action, such as bringing up the statue of limitations.

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Motion to Dismiss

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A pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff's claim to state a cause of action has no basis in law.

Grounds for dismissal of a case include improper delivery of the complaint and summons, improper venue, and the plaintiff's failure to state a claim for which the court could grant relief.

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Motion for Judgment on The Pleadings

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A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute and the sole issue to be resolved is an issue of law.

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Motion for Summary Judgment

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A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if there are no facts in dispute and it's purely a question of law.

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Discovery

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A method by which the opposing parties obtain information from each other to prepare for trial.

Includes gaining access to witness, documents, records, and other types of evidence as long as they're not privileged information and relevant to the claim or defense of any party.

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Deposition

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The testimony of a party to a lawsuit or a witness taken under oath before a trial.

The deponent answers questions asked by attorneys, and the questions and answers are recorded by a an authorized court official and sworn to and signed by the deponent.

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Interrogatories

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A series of written questions for which written answers are prepared by a party to a lawsuit(directed at plaintiff or defendant), usually with the assistance of the party's attorney, and then signed under oath.

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Requests for Other Information

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Written Request(admission of truth) can be served, access to documents not in possession can be granted, and a physical or medical examination can be ordered.

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E-Evidence

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A type of evidence that consists of all computer-generated or electronically recorded information.

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E-Discovery Procedure

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Expert must be hired to retrieve evidence in its electronic format by using software to reconstruct email exchanges and establish who knew what and what they knew about it.

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Advantages and Disadvantages to E-Evidence

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Can uncover proverbial smoking gun to win a lawsuit from damaging information found in backup copies of emails, but it's quite costly and time consuming.

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Pretrial Conference

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Either party requests this in which attorneys and the judge have an informal discussion to explore the possibility of a settlement without trial or to identify the matters that are in dispute to plan the course for the trial.

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Jury Selection

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A trial can be held with or without a jury and the rights to trial are usually guaranteed, but many cases this right is not exercised and is assumed to be waived unless a party requests it in a civil case.

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Voir Dire

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An important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors.

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Challenging a juror peremptorily

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Asking an individual not to be sworn in as a juror without providing any reason.

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Challenging a juror for cause

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Providing a reason as to why a juror should not be sworn in.

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At the trial

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Attorneys present their opening arguments, setting forth the facts that they expect to prove during the trial.

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Motion for a Directed Verdict

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A motion for the judge to take the decision out of the jury's hands and to direct a verdict for the party making the motion on the ground that the other party did not provide sufficient evidence to support his or her claim.

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Award

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The monetary compensation given to a party at the end of a trial or other proceeding.

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Closing Argument and Awards

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Attorneys' closing argument-->Judge's instruction to jury-->Jury's deliberation that decides for plaintiff or defense and amount of award if plaintiff wins

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Motion for Judgement N.O.V.(Notwithstanding the verdict)

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A motion requesting that the court grant a judgement in favor of the party making the motion on the ground that the jury's verdict on him or her was unreasonable and erroneous.

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Motion for a New Trial

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A motion asserting that the trial was so fundamentally flawed(because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

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The Appeal

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The verdict of the trial can be appealed by a party if there are legitimate grounds for the appeal such as an error on the part of the lower court.

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Brief

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Is a formal legal document outlining the facts and issues of the case, the judges rulings or jury's findings that should be reversed or modified, the applicable law, and arguments on the behalf of the party preparing this document.

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Record on appeal

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Includes the pleadings, the trial transcript, judges rulings on motions made by the parties, and other trial related documents.

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Appellate Review

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1. Can affirm the trial court's decision.

2. Can reverse the trial court's decision

3. Can remand(send back) the case to the trial court

4. Might also affirm or reverse a decision in part

5. Can modify a lower court's decision

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Appeal to a Higher Appellate Court

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Losing party has the right to appeal to the state supreme court, but the state supreme court has the discretionary power and right to accept or reject this appeal.

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Enforcing the Judgement

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If the plaintiff is to win the case, will the defendant have enough assets to cover the award that the plaintiff is entitled to?

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Courts Adapt to the online world

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Internet has brought about changes in court procedures in practices, including new methods for file proceedings and some jurisdictions are exploring the possibility of cyber courts(legal proceedings conducted totally online)

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Electronic Filing

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Case Management/Electronic Case files(CM/ECF) is implemented by federal court system and is accessed through PACER(Public Access to Court Electronic Records) .

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Docket

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The list of cases entered on a court's calendar and thus scheduled to be heard by the court.

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Courts Online

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Courts are beginning to include information on court websites such as judicial decisions, docket information, and court rules and forms.

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Cyber Court and Proceedings

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In the future, litigants will be able to use cyber courts with virtual attorneys, judges, and juries through video cameras and designed chat rooms.

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Alternative Dispute Resolution(ADR)

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The resolution of disputes in ways other than those involved in the traditional judicial process, such as negotiation, mediation, and arbitration.

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Negotiation

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A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.

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Mediation

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A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.

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Arbitration

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The settling of a dispute by submitting it to a disinterested third party(other than the court) who renders a legally binding or nonbinding decision.

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The Arbitrators Decision

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Is a award and will be set aside by a court if:

1. The arbitrators conduct substantially prejudiced the rights of one of the parties

2. The award violates the established public policy.

3. The arbitrator exceeded his or her power.

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Arbitration Clause

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A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.

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Arbitration Statues

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Most states have statues under which arbitration clauses will be enforced, and some state statues compel arbitration of certain types of disputes, such as those involving public employees.

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The Issue of Arbitrability

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Actions over arbitrability often occur when disputes arise over an agreement that contains an arbitration clause: one party files a motion to compel arbitration, while the other party wants to have the dispute settled by a court.

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Mandatory Arbitration in the Employment Context

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Many claim that employees' rights are not sufficiently protected under mandatory arbitration, but the U.S. supreme court has held generally that mandatory arbitration clauses in employment contracts is enforceable; however, some courts have refused to enforce one-sided arbitration clauses on the grounds that they're unconscionable.

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Private Arbitration Proceedings

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Delware Chancery Court established new confidential arbitration process, allowing parties to arbitrate their disputes in private.

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Other Types of ADR

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Includes:

-assisted negotiation

-early neutral case evaluation

- mini trial

- binding mediation

-mediation-arbitration

-summary jury trials(SJTs)

-summary procedures for commercial litigation

-appointment of special masters to help judges in deciding complex issues

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Assisted Negotiation

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Third party that may be an expert in the subject matter of the dispute participates in the negotiation process.

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Early Neutral Case Evaluation

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Parties explain situation to expert and the expert assesses the strengths and weaknesses of each party's claims

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mini-trial

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Parties present arguments before the party(usually an expert), who renders an advisory opinion on how a court would likely decide the issue.

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Binding Mediation

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Mediator may make a legally binding decision if the parties cannot resolve the dispute.

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Mediation Arbitration

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If no settlement is reached through mediation, then the dispute will be arbitrated.

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Summary Jury Trials

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Jury's nonbinding verdict in a trial is used as a guide for the parties to reach an agreement on mandatory negotiations after the trial.

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Providers of ADR Services

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Both government agencies and private organizations provide ADR services whereby American Arbitration Association(AAA) is a major provider.

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Online Dispute Resolution

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The resolution of disputes with the help of organizations that offer dispute-resolution services via the internet.