Unit 3 Dispute Resolution ARE 306. I. Litigation in an Adversary System

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1 Unit 3 Dispute Resolution ARE 306 I. Litigation in an Adversary System In an adversarial system, two parties present conflicting positions to a judge and, often, a jury. The plaintiff (called the petitioner in a court of equity) is the party who initiates the lawsuit. The defendant (or respondent in a suit for equity) is the party who is sued. An intervenor is a third party, not originally a party to the suit, who comes into the suit with the court s permission in order to protect his rights or file a claim. Amicus curae means friend of the court and refers to a person, not the plaintiff or defendant, with strong views on the subject matter of the case who requests permission to file a brief on behalf of one of the parties. An amicus curae does not become a party to the suit. Our common law adversarial system is to be contrasted with civil law inquisitorial systems of justice prevalent in most of the world except those once under British influence. Under our system each party has the primary responsibility to bring information before the judge or jury. The judge and jury are generally prohibited from making any inquiries or investigations on their own. Indeed if it is found that either the judge or jury considered evidence not presented by a party, a mistrial may be declared, and a new trial ordered. Parties generally have no duty to volunteer evidence unless requested to do so as the result of a proper discovery request from an adverse party. (Exceptions to this general rule are found mostly under rules governing prosecutorial conduct in criminal trials.) Under an inquisitorial system a court official or judge may have the responsibility of conducting an independent investigation. Under such a system the parties are generally required to reveal all relevant information in their possession to the court. There are generally three types of courts. First, administrative courts handle individual adjudication by administrative agencies. Second, trial courts have the power to decide questions of fact and law. Third, appellate courts have the authority to review decisions of trial courts or lower appellate courts. However, in this review, they are confined to the trial court record and limited to questions of law (not fact). The role of a jury is to determine questions of fact. A grand jury is convened to hear accusations in criminal cases and to decide whether there is reason to have a trial. This jury does not determine whether the defendant is guilty. It is called a grand jury because it has more jurors than a trial jury (12-23 jurors). The ordinary jury for a trial is called a petit jury, and it consists of 6-12 members. Jurisdiction is the power of a court to hear and issue a decision in a certain type of case. There are different types of jurisdictions. For example, jurisdiction concerning the parties can involve jurisdiction over the person or over property. Personal jurisdiction is the power that a court has over the defendant s person, and it is required in order for the court to issue a judgment that affects the interests of a particular person. On the other hand, jurisdiction over property is either in rem, which is the court s power to determine the rights of all parties to certain property, or quasi in rem, which is the power of the 1

2 court to determine only the defendant s interest in certain property within the geographical limits of the court. Another type of jurisdiction is that which is inherent in the court itself. A court has general jurisdiction for any cases that are the type that the court is authorized to hear. However, jurisdiction in that court can then be limited by dollar amount, subject matter, or geography. The venue of a lawsuit is the location of the court proceedings. This is based on convenience if more than one court has jurisdiction. A judgment of a court with improper venue is nonetheless valid and enforceable whereas the judgment of a court that lacks jurisdiction is void and unenforceable. Certain preliminary matters must be addressed before a trial begins. For example, a person must have standing in order to initiate a lawsuit, which means that his own interests have been directly affected by the matter in controversy to the extent that he is the proper one to bring suit. A case is considered moot when there is no actual controversy to be settled, and courts will not hear such a case. Also, a matter must be ripe for review by an appellate court, which means that an actual injury or loss must have occurred, in order to avoid speculation by a court. Once these matters are determined, each party can compel a disclosure of material facts by the other party in a process called discovery. This process assists each side in preparing its case and may narrow the issues. Also, before trial, each party can make pretrial motions. For example, a defendant can file a motion to dismiss, where he claims that, even if the facts are true, the plaintiff does not have a recognized cause of action. Another example is a motion for summary judgment which can be made by either party at any time prior to the verdict. Here the moving party claims that there is no genuine issue as to any material fact and that he is entitled to prevail as a matter of law. The function of a trial is to settle a dispute in a peaceful manner. Each side to the controversy has an opportunity to present its evidence and reasons for prevailing. The role of the judge is to keep order and rule on issues of law. The role of the jury is to decide what are the true facts. After the jury is selected, each side gets an opportunity to present its case. The attorney for each side makes an opening statement. In a civil case, the plaintiff has the initial burden to prove that there is sufficient evidence to support his position. If he does so, then the defendant has the burden of producing evidence to contradict the evidence submitted by the plaintiff. The jury (or the judge if there is no jury) must consider only the evidence admitted during the trial when deciding on what are the true facts. Evidence can be the testimony of witnesses or physical evidence. After all evidence is presented, the attorneys make closing arguments, and the jury considers the evidence and reaches a verdict. After the verdict is rendered, the losing party can make a motion for a judgment notwithstanding the verdict (J.N.O.V.) (judgment as a matter of law in the federal courts) which seeks a judgment under the law in spite of a contrary verdict by the jury. In order for a judge to grant this motion, there must be no substantial evidence to support the 2

3 jury s verdict. Another post-trial motion is a motion for a new trial. This can be made by either party and argues that the judge made a serious legal error during the trial. A judgment is the final decision of a court regarding the rights and claims of the parties to a suit and resolves the dispute. The judge may also issue orders which are directions of the court, not included in the judgment. After a judgment is rendered by the court, either party has a right to appeal that decision to a higher court. The appeal may be as of right, which is a predetermined route to a particular higher court (e.g., from the trial court to an intermediate appellate court) or the appellate court may have the discretion as to whether to take the appealed case. Historically, there have been separate systems of jurisprudence for law and equity, though now in federal courts and most state courts, the same court has jurisdiction over both legal and equitable matters. In an action under law, the relief granted to the plaintiff is usually confined to monetary damages. However, in an action for equitable relief, the remedy is usually injunctive (prohibitive) such as (1) a temporary restraining order (TRO) which is granted in emergency conditions, for a short period of time, without advance notice (ex parte) to the adverse party, (2) a preliminary injunction, granted after a hearing, for the purpose of preserving the relative positions of the parties until the rights of the parties can be determined, and (3) a permanent injunction which may remain in force for years after the conclusion of the suit. The Seventh Amendment right to a jury trial is available only in civil actions at law and in serious criminal matters. When there are so many potential parties in an action that it would be impossible to bring them all before the court, one or more can bring the suit on behalf of the entire class. This is called a class action. The representative of the class must fairly represent the entire class, and the class must be ascertainable and all members must have a definable interest in the controversy. Class action law suits may make it economically feasible to seek a remedy where each person's individual damages were not large enough to make an individual suit feasible. Alternative dispute resolution (ADR) is a way to resolve a civil dispute without filing a lawsuit. The parties agree to have the controversy heard by an impartial third party. One form of ADR is mediation. This is usually voluntary although courts and legislatures are increasingly making it mandatory. Mediation may, as with nuisance actions against farmers, be a statutory precondition for filing a lawsuit. mediation may also be ordered by a judge after a suit is filed. The suggestions made by the mediator are not binding so that even if mediation is mandatory there is no requirement that an agreement be reached. Another form is arbitration. This usually results from a contractual agreement or is required by a statute. A hearing is held before an arbitrator, and then he makes his decision, which is binding on the parties if the arbitration is binding. If the arbitration is nonbinding the parties may accept or reject the decision. II. The Federal Court System 3

4 Jurisdiction is the authority of a court to hear and make a binding decision in a particular case. The federal courts have jurisdiction over cases where the subject matter involves a federal question, i.e., a claim based on the U.S. Constitution, a federal statute, or a federal treaty. Federal courts have exclusive jurisdiction in the areas of patents, copyrights, trademarks, admiralty, bankruptcy, antitrust, as well as those cases involving federal crimes and suits in which the U.S. is a party. In contrast, federal courts have concurrent (shared) jurisdiction with state courts in the areas of federal questions (e.g., most environmental statutes). Also, in cases involving diversity of citizenship (the parties are from different states) when the amount in controversy exceeds $75,000, federal and state courts have concurrent jurisdiction. For the federal court to have diversity jurisdiction, diversity must be complete - no defendant or plaintiff from the same state. In diversity cases the federal court will apply state law. The determination of which state's law to apply is governed by complex choice of law rules. Where federal jurisdiction is based upon a federal question, related state claims may be heard by the federal court under pendant jurisdiction. If the federal claim is dismissed, the pendant claims must also be dismissed. This past year (2005), Congress created a new type of federal jurisdiction over certain large dollar class actions. The U.S. Supreme Court is the highest court in the country. Article III of the U.S. Constitution established this court. The Supreme Court has one Chief Justice and eight Associate Justices appointed by the President with the consent of the Senate. The Constitution gives original jurisdiction (a case is first heard in this court) in all cases that involve Ambassadors or other public Ministers and Consuls or in disputes between states. In all other cases involving federal questions, the U.S. Supreme Court has appellate jurisdiction (review of a case heard first in another court). In some cases, an appeal is mandatory, but usually the Court decides whether it will hear a case on appeal and does so by granting a writ of certiorari. The other federal courts created by Article III are the appellate courts (called Circuit Courts of Appeal) and the trial courts (called District Courts). The intermediate appellate courts are called Circuit Courts because the judges used to travel out to the courts within their areas (circuits). North Carolina is in the Fourth Circuit, which also includes Maryland, South Carolina, Virginia and West Virginia. In total, there are 13 federal circuits, of which 11 are geographic groupings of states, one is for the District of Columbia (D.C.), and the last is the Federal Circuit (a non-geographic circuit whose reviews are limited to specific subject matter). In addition to its geographical jurisdiction, the D.C. Circuit Court is assigned the role of reviewing certain environmental and other regulations. In addition to the above federal courts, the U.S. Constitution, in Article I, established certain specialty courts for specific types of disputes. Unlike the judges of Article III courts who have life terms, the judges of Article I courts are appointed for fixed terms. The standard of review for specialty courts is usually more stringent than for other courts. Examples of Article I courts are the U.S. Bankruptcy Court, the U.S. Court of Federal Claims, the U.S. Tax Court, and the U.S. Court of International Trade. 4

5 III. North Carolina Courts North Carolina has two appellate courts. The Supreme Court is the highest court, and it usually chooses which cases it will hear. Its decisions are binding on all lower courts, both appellate and trial courts. This court is composed of one Chief Justice and six Associate Justices, and they are elected for eight-year terms. The N.C. Court of Appeals reviews cases from the trial courts, and the right to this review is usually automatic upon a proper request, rather than at the discretion of the Court. There are twelve judges, but only three judges hear each case. The decisions of this court are binding on all trial courts. There are several types of trial courts in the North Carolina system, including the Superior Court Division and the District Court Division. The Superior Court is a court of general jurisdiction, which means that it can hear all cases except those specifically assigned to certain specialty courts, such as probate court. A Superior Court judge presides over civil actions involving more than $10,000, all criminal felonies and other criminal cases appealed from the District Court. In the District Court Division, a District Court judge hears most civil actions where the amount in controversy is less than $10,000, juvenile matters, domestic relations matters such as divorce, child support, child custody, and division of marital property, as well as cases concerning involuntary commitment of mentally ill persons and most criminal misdemeanors. If a civil action involves $4,000 or less, it is heard by a Magistrate. These cases have a right of appeal de novo to the District Court, which means that the case will be started over as if it had never been heard by the Magistrate. 5