Learning Objectives. Litigation. The Legal & Regulatory Environment of Business 16e

Transcription

1 McGraw-Hill/Irwin Copyright 2013 by The McGraw-Hill Companies, Inc. All Right Reserved The Legal & Regulatory Environment of Business 16e Chapter 4 Litigation Reed Pagnattaro Cahoy Shedd Moorhead 4-2 Learning Objectives To understand the litigation process and the parties to a case. To discuss how issues such as standing, personal jurisdiction and class actions can impact litigation. To understand how pretrial procedures, including pleadings, discovery and motions affect litigation

2 Learning Objectives To recognize the major steps in a civil trial. To appreciate post trial issues, such as appeals and enforcement. 4-4 Introduction An impartial enforcement and dispute resolution process is essential to any system that preserves private property interests. To conduct business and enforce rights, we need a process to resolve disputes. 4-5 Parties Plaintiff v. Defendant Counterclaim- Counterplaintiff v. Counterdefendant Appellant v. Appellee Petitioner v. Respondent Third-Party Defendant 4-6 2

3 Getting Into Court Standing to Sue Subject Matter Jurisdiction Personal Jurisdiction Need all three to get into court 4-7 Getting Into Court Standing Must involve actual case or controversy Plaintiff must have personal stake in resolution 4-8 Getting Into Court Subject Matter Jurisdiction Power to hear type of case General or limited jurisdiction E.g. probate court, traffic court, federal courts

4 Getting Into Court Court s authority over parties to case Summons/service of process Long arm statutes minimum contacts Extradition Personal Jurisdiction 4-10 Class-Action Suits Filed On Behalf Of All With Similar Claim Notice Given To All Members Of Class Plaintiffs Pay Court Costs Settlement Benefits Class Release All Claims 4-11 Procedural Rules Pleadings Pretrial Motions Appeal Discovery Post trial Motions Pretrial Conference Trial

5 Pre-Trial Procedures Pleadings Complaint Answer- Counterclaims Default Order court may order if no answer filed QUIZ QUIZ QUIZ For any court to exercise authority in any given case, which of the following must happen: a. Court has jurisdiction of subject matter b. Court can exercise personal jurisdiction of the defendant c. Plaintiff has standing to bring the case before the court d. All the above 4-14 Discovery Purpose Lawsuit Based On Merits Of Case Assist In Trial Preparation Narrow Issues Types: Interrogatories Request for Production of Documents Deposition Request for Admissions

6 Scope of Discovery Discoverable Evidence Information Admissible Allowable if it At Trial will lead to evidence admissible during trial High Cost of Discovery caused by time searching for information preparing depositions copying and shipping costs attorneys fees interpreting requests 4-16 Discovery Abuse Parties become aggressive Damage to litigation process Key is to act reasonably and prudently Avoid extreme positions 4-17 Food for thought In a recent survey of 1000 judges, abusive discovery was rated highest among the reasons for the high cost of litigation

7 Motions Pretrial Determination of Question of Law Statute of Limitations Judgment on Pleadings or Summary Judgment (concludes litigation prior to trial) Frivolous Cases (Fed. Rule 11) 4-19 Food for thought I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution --Thomas Jefferson 4-20 Trial Jury Selection Voir Dire to speak the truth Challenges For cause Peremptory Constitutional violations Elimination of peremptory challenges?

8 Food for thought In 1986, racial discrimination was banned in the use of peremptory challenges. Batson v. Kentucky, 476 U.S. 79 (1986) In 1994, gender discrimination was banned in the use of peremptory challenges. J.E.B. v. Alabama Ex Rel. T.B., 511 U.S. 127 (1994) Courts are currently divided on the issue of banning discrimination based on religion in the use of peremptory challenges Trial Jury Selection Voir Dire Opening Statement Overview of Essential Facts Presentation of Evidence Jury Verdict Instruction to Jury Closing Arguments Directed Verdict 4-23 Burden of Proof Burden/responsibility of evidence Criminal cases- beyond a reasonable doubt Civil cases Preponderance of evidence Clear & convincing proof

9 Civil Case Decision Judgment- in favor of party that won jury s verdict Judgment notwithstanding the verdict- post trial motion. Judge may enter judgment counter to jury s verdict 4-25 Post-Trial Appeals procedure Brief Oral argument Judge/Justice s opinion Deference to trial courts Enforcement Execution Garnishment Doctrine of Res Judicata 4-26 QUIZ QUIZ QUIZ Directed verdict refers to the a. Power of court over parties involved. b. Power granted to litigant to reject jurors. c. Power of court to order sworn questioning of witnesses outside of court. d. Power of court to grant a decision in favor of defendant when insufficient evidence is presented at trial

10 Summary Steps in a Civil Trial Pleadings Discovery Voir dire Opening statements Plaintiff s case Defendant s case Closing arguments Jury instructions Deliberation Verdict Judgment Note that various motions may be filed throughout the trial