Chapter 3 Dispute Resolution

Similar documents
The Legal Process: The Adversary System and Dispute Resolution

Chapter 02 THE COURT SYSTEM AND DISPUTE RESOLUTION

The American Court System BASIC JUDICIAL REQUIREMENTS. Jurisdiction

Printable Lesson Materials

Chapter 3 The Court System and Chapter 4 The Litigation Process

Civil Procedure. The Origin of a Lawsuit. The Resolution of Private Disputes Chapter 2 Part 2 Civil Procedure

So, You re Thinking of Filing A Lawsuit? San Mateo County Superior Court

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

HANDBOOK FOR TRIAL JURORS SERVING IN THE UNITED STATES DISTRICT COURTS

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

I Have A Case in Court, Now What? San Mateo County Superior Court

Pretrial Activities and the Criminal Trial

PROVIDING PROCEDURAL CONTEXT: A BRIEF OUTLINE OF THE CIVIL TRIAL PROCESS

ownload file at

LEGAL GLOSSARY Additur Adjudication Admissible evidence Advisement Affiant - Affidavit - Affirmative defense - Answers to Interrogatories - Appeal -

1. Minor criminal cases and civil disputes are decided in the appellate courts.

Robert I, Duke of Normandy. 22 June July 1035

CASE NUMBER: DIV 71. It appearing that this case is at issue and can be set for trial, it is ORDERED as follows:

716 West Ave Austin, TX USA

STUDENT STUDY GUIDE CHAPTER SIX

CHAPTER 8 The Courtroom Work Group and the Criminal Trial. Teaching Outline. I. Introduction (p.226)

Fall, Criminal Litigation 9/4/17. Criminal Litigation: Arraignment to Appeal. How Do We Get A Case?

THE ANSWER BOOK FOR JURY SERVICE

Glossary of Terms for Business Law and Ethics

Department 16 has prepared this document to assist counsel in scheduling motions and reporters in Department 16.

chapter30dispute Resolution Name

The Civil Action Part 1 of a 4 part series

JUDGE DENISE POSSE LINDBERG STOCK CIVIL JURY INSTRUCTIONS TABLE OF CONTENTS

2:16-cv EIL # 106 Page 1 of 20

Mock Trial Practice Law Test

Court Records Glossary

acquittal: Judgment that a criminal defendant has not been proved guilty beyond a reasonable doubt.

JUROR INSTRUCTIONS ALONG W/ QUESTIONS & ANSWERS FOR POTENTIAL JURORS

LAW ON PREVENTION OF AND PROTECTION AGAINST DISCRIMINATION

A SUMMARY OF THE SHORT, SUMMARY, AND EXPEDITED CIVIL ACTION PROGRAMS AROUND THE COUNTRY

COPYRIGHT 2009 THE LAW PROFESSOR

CIRCUIT AND CHANCERY COURTS:

Alpena County. Version 1.0 JURY DUTY HANDBOOK

PRETRIAL INSTRUCTIONS. CACI No. 100

FOR CODERS 102. Other Notes (if you have a note for ABF staff, write it below or on the back of this page) Very weak/flimsy case

STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF JACKSON BUSINESS COURT DIVISION. via telephone (check one) /

PART I THE JUDICIAL SYSTEM

UNIFORM ORDER SETTING CASE FOR JURY TRIAL AND PRE-TRIAL CONFERENCE AND REQUIRING PRE-TRIAL MATTERS TO BE COMPLETED

IN THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI AT LIBERTY. STATE OF MISSOURI ) ) Plaintiff ) ) VS ) Case No. ) ) Defendant )

GRIEVANCE AND ARBITRATION PROCEDURES FOR ANY DISPUTES RELATING TO EMPLOYEES AND JOB APPLICANTS OF BILL S ELECTRIC COMPANY

SOUTHERN GLAZER S WINE AND SPIRITS, LLC. EMPLOYMENT ARBITRATION POLICY

Chapter SECTION OPENER / CLOSER: INSERT BOOK COVER ART. Section 2.1 A Dual Court System

Argued September 27, 2017 Decided. Before Judges Alvarez, Nugent, and Geiger.

RULE 7: CALENDAR CALL AND PRETRIAL MEMORANDA

UNIFORM ORDER SETTING CASE FOR JURY TRIAL; PRE-TRIAL CONFERENCE AND REQUIRING PRETRIAL MATTERS TO BE COMPLETED

RULE CHANGE 2018(06) COLORADO RULES OF CIVIL PROCEDURE

CHAPTER 2: DISPUTE SETTLEMENT

Connecticut s Courts

Overview of Pretrial & Trial Procedure. Basic Concepts. What is Proof (Evidence) David Hamilton City Attorney Reno & Honey Grove Tx.

Illinois and Federal Civil and Criminal Procedure Local Practice Overview. Illinois State Bar Association Basic Skills Course

CBA Municipal Court Pro Bono Panel Program Municipal Procedure Guide 1 February 2011

DEPARTMENT C26 GUIDELINES HONORABLE GREGORY H. LEWIS

Effective September 1, 2018 TABLE OF RULES II. TRANSFER TO ARBITRATION AND ASSIGNMENT OF ARBITRATOR

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION : : : : : : : : : : :

JUDICIAL REVIEW. In Marbury v. Madison (1803), arguably the most significant case in American constitutional law, the U.S. Supreme Court opined:

10/18/ :38 AM 18CV47218 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH. Case No. COMPLAINT.

TRIAL ADVOCACY - FALL 2005

CASE NUMBER: UNIFORM ORDER SETTING CASE FOR JURY TRIAL; PRE-TRIAL CONFERENCE AND REQUIRING PRETRIAL MATTERS TO BE COMPLETED

CHAPTER 3. Court Systems. 3-1 Forms of Dispute Resolution 3-2 The Federal Court System 3-3 State Court Systems

ALTERNATIVE DISPUTE RESOLUTION (ADR) INFORMATION PACKAGE

Pages , Looking Back

CRIMINAL PRE-TRIAL BEST PRACTICES

LIST OF CHAPTERS. Joseph J. Mellon, Esq. Thomas J. Tomazin, Esq. Lorraine E. Parker, Esq. Lauren E. Sykes, Esq. Krista Maher, Esq.

The Judicial Branch. Chapter

The jury panel is selected by lot from all the names of registered voters or from persons having a valid driver s license.

Civil Litigation Forms Library

Dodge County. 1) Rules of Decorum. (Sixth Judicial District)

Chapter 2. Courts and Alternative Dispute Resolution

How the Law Works A guide to the Oregon court system and civil cases

Definitions of Legal Terms

STATE OF MICHIGAN COURT OF APPEALS

LOCAL RULES of the COURT OF COMMON PLEAS OF CLARION COUNTY

Common law reasoning and institutions Civil and Criminal Procedure (England and Wales) Litigation U.S.

IN THE GENERAL COURT OF JUSTICE DISTRICT COURT DIVISION., ) Plaintiff, ) ) CONSENT STIPULATIONS FOR v. ) ARBITRATION PROCEDURES ), ) Defendant.

GRAY, L.L.C. 760 ROUTE 10 WEST, SUITE 203 WHIPPANY, NEW JERSEY PH: F: Attorneys for Plaintiff S.P., a fictitious name

Glossary of Terms acquit action adjudication Administrator advance sheets adversary system affidavit affidavit of prejudice affirm allegation

Employment Dispute Arbitration Rules and Procedures

Prepared by Public Counsel s Federal Pro Se Clinic

Chapter 6. Litigation Process (Federal and State) Now that you know about the structure of the court system, now you will learn about the process.

The Inclusive School: Constitutional and Statutory Rights of School Employees

Chapter 02 Courts and Court Procedures

SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE. JUDGE MELISSA R. McCORMICK DEPARTMENT C13. CLERK: Alma Bovard COURT ATTENDANT: As Assigned

Special Civil A Guide to the Court

LOCAL RULES AND PROCEDURES FOR THE CALENDARING OF CIVIL CASES DISTRICT COURT DIVISION

Litigation Unveiled Click to edit Master title style

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION. v. Case No. 6:13-cv-1839-Orl-40TBS ORDER

Trial Academy Voir Dire: The Rejection Process

LIMITED JURISDICTION

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ORDER

TRIAL PRACTICE No SPRING 2012

MODEL JURY SELECTION QUESTIONS

Insight from Carlton Fields

Honorable R. Stanton Wettick, Jr. COMPLEX CASES. See Local Rule 249(1).

May 7, Dear Ms. England:

FORT SILL LEGAL ASSISTANCE. Small Claims Court. Speedy Justice Between Parties

Transcription:

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

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

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

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

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

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

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

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

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. 26 27 9

28 2012 29 30 10

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

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. 36 12

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. 39 13

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. 42 14

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. 45 15

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. 48 16

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. 51 17

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

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

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. 59 20