Ch. 3 - Litigation and Alternate Dispute Resolution.docx - Chapter 3 Litigation and Alternative Dispute Resolution Adversarial System Both civil and

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Chapter 3 – Litigation and Alternative Dispute Resolution Adversarial System Both civil and criminal proceedings in US are based on so-called adversarial system Adversarial when describing American approach to litigation, we are referring primarily to the amount of control that the parties and their attorneys have over the procedure Under adversarial system, parties themselves (acting through their attorneys) research the law and find and develop the evidence Trial judge normally takes no action unless a party specifically requests it Although the parties and their attorneys have primary control over the issues and evidence, the trial judge obviously has the duty to exercise ultimate supervisory authority over the entire process State and federal courts in US employ lay juries as fact-finders in more types of cases than do courts in other common-law countries Inquisitorial system o Trial judge has much more control over the process, and the parties have much less than in adversarial system o Judge has authority to decide which issues will be addressed o Judges usually in charge of investigation and gathering evidence (with investigators) Adversarial system requires fewer judges and more lawyers than inquisitorial system Inquisitorial system expends more time and effort of public officials Adversarial system puts primary responsibility for developing the facts in the hands of those who have a natural incentive to do a more thorough job Note on Attorney’s Fees o Many countries follow a ‘losers pay’ system in which the party losing a trial pays a reasonable attorney fee to winning party (called “English Rule”) o American system has both parties paying all of own attorney feeds Ashcroft vs. Iqbal A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” Litigation: Pretrial Proceedings Pleading Stage o Commenced by plaintiff, through an attorney, filing a complaint (or petition) with the court having jurisdiction of the case o Plaintiff asks the court to issue a summons to the defendant o After being served the summons, defendant has prescribed period of time in which to file a response, normally an answer to the complaint The Complaint o The complaint sets forth the plaintiff’s version of the facts and ends with a “prayer” (request) for a certain remedy based on these facts o In most complaints, the remedy requested by the plaintiff is an award of money damages to be paid by the defendant to compensate the plaintiff for his or her losses o Restitution - a return of the purchase price
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Motion to Dismiss o Before filing an answer to the plaintiff’s complaint, the defendant can file a motion to dismiss Files if believed that the plaintiff has no claim even if all allegations in the complaint are true o If court grants the motion to dismiss, sometimes the plaintiff will be given an opportunity to amend the complaint o
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