PROFESSIONAL PRACTICE 544

Transcription

1 PROFESSIONAL PRACTICE 544 Spring Semester 2015 Michael J. Hanahan, Esq. Partner Schiff Hardin LLP 233 S. Wacker, Ste Chicago, IL

2 PROFESSIONAL PRACTICE 544 January 12, 2015 Introduction, Legal Foundation, Dispute Resolution To Court or Not? Michael J. Hanahan, Esq. Schiff Hardin LLP 233 S. Wacker, Ste Chicago, IL

3 How This Class Works First half (pre mid-term): Theory Second half (post mid-term): Practice Grading based on mid-term and final exams Both multiple choice, open book/notes. No homework. Just lecture/discussion and two AIA documents. Class participation can boost borderline grades. Opportunity to raise grades of C or below by writing paper. Attendance is important, but lectures will be posted on my website. Schiff Hardin LLP scholarship for best performance. 2

4 LEVELS OF GOVERNMENT National (not Federal ) State Municipal City Village Can be separate taxing body (e.g., MPEA) 4

5 FUNCTIONS OF LAW Criminal Law Protects the state Protects people Jury of your peers Civil Law Balancing interests of groups/individuals Ensuring predictability Statutes and common law Uses the jury system as well 5

6 HIERARCHY OF LAWS 1. Constitution 2. Statute 3. Executive Order 4. Administrative Regulation 5. Common Law (court-made) 6. Contracts and Agreements 7. Custom and Practice 6

7 CLAIMS

8 WHAT IS A CLAIM? Because of claims, we need laws. Civil and criminal. This class mainly explores civil claims. Claims against design professionals. Claims against owners. Claims against contractors. What is a claim and how is it resolved? 7

9 ELEMENTS OF A CLAIM Is the claim based in tort or contract? Existence of a duty By law, contract, or otherwise. Breach of that duty The failure to perform. Performing in a manner not consistent with the standard of care. Causation Damages 7

10 DISPUTE RESOLUTION PROCEDURES Binding: Non-Binding Litigation/Lawsuit (traditional method) Expensive, time consuming. Arbitration (only by agreement) Can be, but not always cheaper and faster than litigation. Negotiation (always encouraged). Limited to skill and attitude of the parties. Mediation (only by agreement) Often faster and cheaper than other methods. 8

11 ANATOMY OF A LAWSUIT 1. Summons and Complaint (Plaintiff) 2. Defendant s initial responses Motion to Dismiss Answer Affirmative Defenses Counterclaim 9

12 ANATOMY OF A LAWSUIT (Cont d.) 3. Pre-trial Discovery Production of Documents Interrogatories Depositions Subpoenas to third parties 10

13 ANATOMY OF A LAWSUIT (Cont d.) 4. Trial (Jury or Bench) Jury selection Opening statements Evidence and witnesses Closing arguments Jury instructions Verdict/judgment 5. Appeal Written briefs on limited issues Oral arguments 11

14 ARBITRATION

15 HOW AN ARBITRATION WORKS 1. Demand for Arbitration (Claimant) 2. Arbitrator Selection Process By agreement, by define rules How many panel members 3. Respondent s Answering Statement (and Counter-Demand) 13

16 HOW AN ARBITRATION WORKS (Cont d.) 4. Limited Discovery Mutual document exchange. Interrogatories typically not permitted or very limited Depositions also usually limited or prohibited. Subpoenas to third parties for documents or attendance at hearing only. 14

17 HOW AN ARBITRATION WORKS (Cont d.) 5. Evidentiary Hearing Opening statements Witnesses, but no evidentiary exclusions Arbitrator may ask questions Closing arguments and/or written briefs Award 6. No right of appeal Arbitrators can make errors of law or fact without being overturned Fraud or overt bias can be appealed 15

18 MEDIATION

19 MEDIATION PROCEDURES 1. Generally Two Types Evaluative Non-Evaluative 2. It Is A Business Resolution 3. The Mediation Process Individual Meetings/Written Submittals to Educate Mediator Joint/Confrontational Session Separation of Parties and Shuttle Diplomacy 4. Mediation may be Interrupted or Continued 17

20 Questions