Chapter 3 Dispute Resolution

Transcription

1 Chapter 3 Dispute Resolution 1 Litigation The process of filing claims in court, preparing for trial, and the things you do during trial. In other words, using the courts to resolve your legal dispute. Alternative dispute resolution Any formal or informal process used to settle a (legal) dispute without trial. 2 Negotiation and Settlement The process of directly discussing terms of a possible settlement of the dispute, reaching an agreement regarding such terms, and memorializing them in a settlement contract. In this contract, the plaintiff agrees never to sue the defendant for the alleged wrongs; and in return, the defendant generally agrees to pay the plaintiff a sum of money. 3 1

2 Why are well over 90% of all lawsuits settled before they reach trial? Answer: 1. Trial is expensive 2. Trial is unpredictable. 6 2

3 Mediation The process of using a neutral person to aid in the settlement of a legal dispute. A mediator s decision is nonbinding. The two parties often split the cost of the mediator. 7 Mediation Mediators are especially common in divorce and child custody cases. The mediator works with the parties to try to find a win-win solution. Litigation, by contrast, tends to set the parties against each other. 8 Arbitration A form of alternative dispute resolution in which the parties hire a neutral third party to hear their respective arguments, receive evidence, and then make a binding decision. 9 3

4 Arbitration vs. Mediation Arbitrators must be licensed to practice as lawyers, magistrates, or judges; mediators need not be. After hearing the arguments of both sides, the arbitrator will issue a binding decision, called an award. It is very, very difficult to get the fairness of an arbitration award reviewed by a court of law. 10 Arbitration Clauses Many employment and sales contracts between businesses and individuals contain an arbitration clause. These often specify that the company will get to choose the arbitrator. Many experts worry that these arbitrators will be biased toward the companies that give them so much business. 11 Arbitration Clauses In addition, the arbitration clause may specify that the arbitration proceeding will take place in a far away state. Nevertheless, courts usually find these mandatory arbitration clauses enforceable. This is an evolving area of the law. 12 4

5 Court Systems The United States has at least 51 separate systems of courts. One nationwide system of federal courts serves the entire country. In addition, each state has its own court system. 13 Structure of a Typical State Court System Structure of the California Court System California Supreme Court California Courts of Appeal (6 geographic districts, each with many addresses) Superior Court of California, County of Santa Clara 57 more counties with similar structures One Family Law Court One Juvenile Delinquency Court Ten general jurisdiction courthouses 5

6 Appeals courts Three or more judges hear each case There are no juries, ever No witnesses are allowed only the parties and their lawyers may appear. This means the appeals court will defer to the trial court for a determination of the facts of the case. 16 Jurisdiction Jurisdiction refers to a court s power to hear a case and to issue a decision binding on the parties. A plaintiff may start a lawsuit only in a court that has jurisdiction over that kind of case. 17 Two Kinds of Civil Lawsuits Are Permitted in Federal Court Federal question cases, and Diversity cases 18 6

7 Federal Question Cases Cases that either: 1.Are based on a violation of a federal statute, or 2.Challenge the constitutionality of a statute or governmental action. 19 Diversity of citizenship Concurrent Jurisdiction State, Civil Law Yes Diversity of Citizenship? > $75K? Yes No Concurrent Federal Jurisdiction No Exclusive State Jurisdiction 20 Smiles v. Coastal Insurance Co. Could it have been filed in federal court? Yes. Why? 21 7

8 Smiles v. Coastal Insurance Co. 1. Insurance law is virtually all state law 2. Beth Smiles is a resident of Oregon 3. Coastal Insurance Company is incorporated in Georgia. 4. The amount in controversy is $2 million. 22 Smiles v. Coastal Insurance Co. Why did Janet Booker file the case in Oregon state court instead? Possible reasons: Courtroom is closer Case will be heard sooner State judges more sympathetic to a small Oregon businessperson than an insurance company based in Georgia? 23 Basic Structure of the Federal Court System 8

9 Smiles v. Coastal Insurance Company The documents that begin a lawsuit are called the pleadings. These consist of the complaint, the answer, and sometimes a reply

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11 Reply A reply is a written response to an answer. The plaintiff only needs to file a reply if the answer is accompanied by a counterclaim (which California calls a cross-complaint) Coastal Insurance Company s answer is not accompanied by a counterclaim. 31 Judgment on the Pleadings A motion to dismiss is a request that the court terminate a case without permitting it to go further. Example: If you sue your boss for having really bad breath, your boss s lawyer will file a motion to dismiss, and the court will grant it. 32 The Tools of Discovery Interrogatories Depositions Productions of documents and things Requests for Admission Physical and Mental Examination 33 11

12 Motion for Summary Judgment At the conclusion of discovery, either party may file a motion for summary judgment. A motion for summary judgment asks the judge to declare the filing party the winner. 34 Essential Fact A fact the plaintiff must prove to win their case. Janet Booker must prove: 1. That Tony Caruso is dead, and 2. That his death was accidental. in order to win her case. 35 Motion for Summary Judgment If the defendant files the motion, they must argue that at least one essential fact is not in dispute, and that fact has been resolved in favor of the defendant

13 Motion for Summary Judgment If the plaintiff files the motion, they must argue that there are no essential facts in dispute, and that all essential facts have been resolved in favor of the plaintiff. 37 Motion for Summary Judgment In considering this motion, the judge must view the evidence in the light most favorable to the non-moving party. This means the judge must believe not just that she thinks the moving party is right, but that no reasonable person would think otherwise. 38 The Story of Bob and Susan: Version 1 Bob and Susan meet at a church pancake breakfast. Bob agrees in writing to sell Susan his new Ferrari for $25,000. Later, Bob refuses to honor the agreement, claiming that he was drunk when he signed. Susan has 35 witnesses who swear that Bob was sober. Susan moves for summary judgment at the conclusion of discovery

14 The Story of Bob and Susan: Version 2 Bob agrees orally to sell Susan his new Ferrari for $25,000. Bob had not been drinking, and nobody (including him) claims he was drunk. Bob moves for summary judgment at the conclusion of discovery. Will the judge grant this motion? 40 Jones v. Clinton In 1997, Paula Jones alleged that, while he was governor of Arkansas, Bill Clinton invited her to his hotel room, put his hand on her thigh, was rebuffed, and then exposed himself. President Clinton moved for summary judgment. Was his motion granted? 41 Jones v. Clinton Title VII of the Civil Rights Act of 1964 prohibits discrimination by most employers on the basis of race, color, religion, sex or national origin. In the late 1970s, courts began holding that sexual harassment in the workplace is sex discrimination, and is therefore prohibited under Title VII. Courts have defined two types of prohibited sexual harassment: quid pro quo harassment and hostile work environment harassment

15 Jones v. Clinton To establish quid pro quo harassment, a plaintiff must show that her refusal to submit to unwelcome sexual advances or requests for sexual favors resulted in a tangible job detriment. The judge concluded that Ms. Jones allegations, even if true, make no such showing. 43 Jones v. Clinton To establish hostile work environment harassment, a plaintiff must show that she was exposed to pervasive (repeated) undesirable or offensive conduct in the workplace directed towards persons of her gender that interfered with her work performance or created an intimidating, hostile, or abusive working environment. Again, the judge concluded that Ms. Jones allegations, even if true, make no such showing. 44 Preparing for Trial Neither Janet nor Rich file a motion for summary judgment. Preparing for trial has cost Beth many lost hours at work. It has been more than a year since Beth filed her complaint

16 Right to a Jury Trial in a Civil Proceeding As a general rule, in a civil proceeding, both the plaintiff and the defendant have a right to demand a jury trial when the lawsuit is one for money damages. If the plaintiff is seeking an equitable remedy, such as an injunction, there is no jury right for either party. 46 Voir Dire Challenge for cause: An attorney s request to excuse a prospective juror because of apparent bias. Peremptory challenge: An attorney s request to excuse a prospective juror for an unstated reason. 47 The Trial Opening statements: Plaintiff goes first. Burden of proof: By a preponderance of the evidence Plaintiff s case: Janet must prove two things

17 The Trial Direct examination: Asking questions of a witness you have called. Cross examination: Asking questions of a witness the other side has called. Janet must call all her witnesses first. Then the plaintiff will rest. Now it is time for the defense to present their case-in-chief. 49 Rules of Evidence Most witnesses are generally only permitted to testify on things they thought or saw or heard (or smelled, felt or tasted) in the past. And they are not permitted to report most things they heard other people say (hearsay evidence.) 50 Rules of Evidence Most witnesses are not permitted to give testimony that calls for opinion or speculation. But expert witnesses can generally give their opinions on matters relating to their area of special expertise

18 Expert Witnesses Janet calls a marine geologist as a witness, and gets him to testify that, in his expert opinion, even experienced swimmers can be overwhelmed by a sudden shift in ocean currents. 52 Motion for a Directed Verdict A request for a ruling that the plaintiff has entirely failed to prove some aspect of his or her case. Rich argues that Janet has completely failed to prove that Tony s death was accidental. The judge disagrees, and therefore denies the motion. 53 Fact are elusive and often controlling In the back of the courtroom, Craig Bergson, Tony s college roommate, has important, relevant information in his possession that the parties never learn about. This kind of thing happens all the time in real court cases! 54 18

19 Jury Instructions After the defense s closing argument, the judge issues final instructions to the jury. Rich asks the judge to rephrase the part about the legal presumption of accidental death, but the judge declines. 55 Jury Deliberations and Verdict In both Oregon and California, ¾ of the jurors in a civil proceeding must agree; otherwise it s a hung jury. The jury deliberates until ¾ of them agree, or until they are deadlocked. The jury s deliberations are generally secret and unreported. 56 Motions After the Verdict A Motion for a Judgment N.O.V. (JNOV) A Motion for a New Trial 57 19

20 The Appeal The appeals court is looking for errors of law that may have changed the legal outcome of the case. They seem especially interested in Judge Rowland s instructions to the jury. This makes Beth nervous, so she settles before the appeals court can render their verdict. 58 Fictional, But Realistic The case of Smiles v. Coastal Insurance Company is fictional but realistic. Facts are elusive, and often controlling. Litigation is unpredictable