The Legal Process: The Adversary System and Dispute Resolution The adversary system of trial, sometimes called the sporting approach to the truth, recalls our commitment to democracy as the least corruptible form of government. The system requires that two equally matched lawyers joust in open court. Each lawyer makes the best case and fights as hard as he can for his client The fight encompasses not only the questions of guilt and innocence, but the range of evidence that the jury should be allowed to hear. George P. Fletcher (A Crime of Self-Defense) I. The Adversary System: A distinctive feature of a common law legal system: A. Adversary system: A method of litigation in which each party is solely responsible for presenting the facts and legal theories supporting its position in an attempt to convince either judge or jury of its right to prevail. The judge plays a relatively passive role in developing evidence and questioning witnesses, but adjudicates all legal issues. B. The adversary system is an aspect of procedural law C. Role of the lawyers 1. Operational and strategy decisions 2. Control the development and presentation of evidence D. Role of the judge 1. Referee/umpire 2. Responsible for legal decisions throughout the trial process; instructs jury on the law in jury trials; also decides disputed facts in bench trials. E. A trial is a concentration of proceedings an event. F. Contrast the adversary system with civil law legal systems (non-adversary, Interrogative systems) where, among other things, the judge plays a more active role in evidence development and witness questioning. G. There are different philosophies of fact-finding and dispute resolution in the civil law and common law. The Legal Process 1
II. The process of a lawsuit in a civil action Phase 1: THE PLEADINGS: blueprints of the trial; define issues for the court and for the parties; serve as a record of the adjudicated issues; may permit case to be disposed of before trial 1. Plaintiff files a complaint with the court A. Elements of the complaint: 1. Statement of court s jurisdiction 2. Short and plain statement describing the claim 3. Prayer for relief 2. Service of process on the defendant (Summons) 3. Defendant may react to the complaint by filing: A. Motion to dismiss B. Answer Admissions Denials Affirmative defenses Counterclaims 4. Plaintiff may respond to defendant s motion or answer: Reply 5. Defendant may respond to the plaintiff s reply: Rejoinder Phase 2: DISCOVERY 1. Purpose and scope: Purpose: Allows the parties to gather and exchange information related to the cause of action on which the lawsuit is based; permits both sides to fully understand the case before trial; may promote settlement. The Legal Process 2
2. Tools of discovery A Requests for admissions B. Depositions: oral interview of a party or witness by the lawyers, taken under oath and usually recorded and transcribed by a court reporter (court official responsible for recording witness testimony word for word (verbatim) and preparing a written transcript.) C. Interrogatories to the parties D. Production of documents, objects, data E. Physical or mental examination; site visits, etc. Phase 3: JURY SELECTION 1. Selection process of jurors for case (voir dire) 2. Impaneling and swearing in of jurors Phase 4: Phase 5: THE PRE-TRIAL CONFERENCE: Takes place with a judge; is an opportunity to reach early settlement, clarify and simplify issues, prepare case for trial. The Trial 1. Plaintiff s opening statement 2. Defendant s opening statement 3. Plaintiff s case in chief A. Burden of proof (preponderance of the evidence) B. Presentation of evidence: Documents, exhibits, etc. C. Examination of witnesses: ordinary and expert Plaintiff s direct examination.defendant s cross examination Plaintiff s redirect.defendant s recross. Observations on the examination of witnesses 4. Plaintiff rests his case The Legal Process 3
5. Possible filing of a motion to dismiss by the defendant 6. Defendant s case in chief 7. Defendant rests his case 8. Possible filing of motions for a directed verdict 9. Plaintiff s rebuttal 10. Defendant s surrebuttal 11. Closing arguments 12. Jury trial: Judge instructs jury on the law and the case is submitted to the jury for factual determinations A. Jury deliberations B. Jury renders verdict C. Judge enters judgment Non-jury trial (bench trial): Judge makes findings of facts and conclusions of law; judge enters judgment 13. Appeal rights III. Rules governing the trial process A. Federal Rules of Civil Procedure B. Why are there rules of evidence? 1. Purpose: to govern what is and is not admissible at trial in order to ensure a fair adjudication. The Legal Process 4
2. Trustworthiness: Only the most reliable and credible evidence should be presented to the fact finder. 3. Evidence must be relevant. IV. Alternative dispute resolution (ADR): Neutral third parties attempt to resolve disputes; provides the opportunity to avoid costly litigation A. Lawsuit/litigation and/or ADR: pros and cons B. Types of ADR 1. NEGOTIATED SETTLEMENT; possible anytime during the dispute process 2. MEDIATION: process whereby a neutral third party intervenes in a controversy to assist the parties in reaching a resolution. Use of mediation is preferably voluntary (sometimes mandatory) The mediator s recommendation is not binding. Examples: disputes between business partners; family law issues; employer/employee; landlord/tenant, etc. 3. ARBITRATION: quasi judicial; both sides are heard ; evidence presented in an informal matter; arbitrator makes a judgment Arbitrators usually have expertise in the subject area Contracts may require arbitration (arbitration clause) Courts may require parties to engage in arbitration Arbitrator s decision may be binding in certain cases Examples: contract disputes; consumer and commercial disputes; securities/investment disputes The Legal Process 5