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Unformatted text preview: Kulper - Econ 189 Kulper 1 Litigation vs. Alternative Dispute Resolution
u Litigation refers to lawsuits; the process of filing claims in court, and ultimately going to trial. Alternative Dispute Resolution is any other formal or informal process for settling disputes without going to trial. u Kulper - Econ 189 Kulper 2 Alternative Dispute Resolution
u Negotiation Mediation (most common forms) • Parties make offers and counter-offers for settlements. • May be face-to-face or through lawyers. u • Neutral person (mediator) attempts to get parties to reach a voluntary settlement. • Mediator does not render a decision. u Arbitration
• Neutral person (arbitrator) is involved. • Arbitrator does render a binding decision. • Arbitration may be mandatory, if chosen in advance as the method for dispute resolution. Kulper - Econ 189 Kulper 3 State Court System
u Trial Courts
• Almost all cases begin in trial courts, with a judge and usually a jury. • Trial courts determine the facts of a particular dispute and apply the law to those facts. • Courts can only hear cases under their jurisdiction. u Appellate Courts
• Appeal courts generally accept the facts given to them by trial courts and just review the trial record to see if the court made any errors of law. • The highest appeals court in a state is the state Supreme Court. Kulper - Econ 189 Kulper 4 State Court System
Usually 7 Justices; may refuse to hear a case; final authority Three judges; never a jury State Supreme Court (Highest Appeals Court) Lower Appeals Courts Click on any box below for a definition of the jurisdiction of that trial court.
General Civil Division General Criminal Division Small Claims Division Municipa l Division Juvenile Division Land Division Domestic Relations Division Trial Courts of General Jurisdiction
One judge; may have jury Probate Division Trial Courts of Limited (or Specific) Jurisdiction One judge; may have jury Kulper - Econ 189 Kulper 5 Federal Courts Two kinds of civil lawsuits permitted • Federal Question Cases
Diversity Cases – A claim based on the United States Constitution, a federal statute, or a federal treaty
• When the plaintiff and defendant are citizens of two different states, AND • the amount in dispute is greater than $75,000 Kulper - Econ 189 Kulper 6 Federal Court System
u Trial Courts
• United States District Courts are the primary trial courts in the federal system. • The nation is divided into about 94 districts, each with its own district court. • There are also specialized trial courts, such as Bankruptcy Court and Tax Court. u Appellate Courts
• United States Courts of Appeals are the intermediate courts of appeals. The nation is divided into circuits. • The highest appeals court is the United States Supreme Court. Kulper - Econ 189 Kulper 7 The Federal Court System * Click here to see a map of the 12 Circuits of the U.S. Courts of Appeals. United States Supreme Court (Highest Appeals Court) Nine Justices; appointed for life; may refuse to hear a case; final authority Hears appeals from specialized trial courts. Three judges hear each case, brought up from the District Courts. U.S. Courts of Appeals (12 Circuits) Click on any box below for a definition of the jurisdiction of that trial court.
U.S. District Courts U.S. Bankruptcy Courts U.S. Tax Courts U.S. Court of Internationa l Trade Various Federal Agencies U.S. Claims Court U.S. Patent & Trademark Office Lower Appeal s Courts U.S. Court of Appeals for the Federal Circuit Primar y Trial Court Trial Courts of Limited (Specific) Jurisdiction Trial Courts of Limited (Specific) Jurisdiction
8 Kulper - Econ 189 Kulper Steps in Beginning Litigation
• Pleadings: Papers that begin a lawsuit
1. Complaint -- Short, plain statement of the
allegations and the legal claims. This is “served” or delivered with a summons. 2. Answer -- A brief reply to the allegations. 3. Counter-Claim -- Sometimes the accused
party will initiate a second suit in response to the first. 4. Reply -- A brief reply to the counter-claim. Kulper - Econ 189 Kulper 9 Possible Variations on Pleadings • Class Actions • Default Judgment – If the plaintiff has evidence that the wrong in question has affected a large number of unrelated persons, the suit may become a classaction suit, with the plaintiff representing an entire class of plaintiffs. – If the defendant fails to answer in time, the plaintiff will ask for a default judgment, meaning an automatic win without a trial.
Kulper - Econ 189 Kulper 10 Discovery next step after pleadings
Allows both side to uncove e nce e s r vide , ncouraging a se m nt or ttle e e nsuring fe surprise during a trial. w s • Interrogatories – written questions that the other • Depositions – interview (under oath) of other party • Production of Evidence – each side may • Physical or Mental Exam – one party may request to see the other side’s evidence request the court to order an examination of the other party if relevant or potential witnesses; done by opposing lawyer party must answer, under oath • EDiscovery – electronic communications which may be requested by a party to gather information about a case Kulper - Econ 189 Kulper 11 Discovery (cont’d)
• Sometimes the results from interrogatories and depositions will cause one side or the other to file a motion in response. – Motion to compel answers to interrogatories – may be made if one side thinks the other has not adequately answered interrogatories – Motion for protective order – is a request to the court that the other side be made to reduce the number of depositions. Kulper - Econ 189 Kulper 12 Other Steps Before Trial
• Summary Judgment a ruling by the • Final Preparation if the case is to court that no trial is necessary because there are no essential facts in dispute; may be requested by either side. proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.
Kulper - Econ 189 Kulper 13 Adversary System
• The adversary system presumes that the truth will be found if lawyers are allowed to question witnesses for both sides. • In most cases, both the plaintiff and the defendant have the right to a jury trial, but also may waive that right. In some types of trials, there is no right to a jury.
Kulper - Econ 189 Kulper 14 Procedural Rules for a Trial
• Burden of Proof
– The plaintiff must convince the jury that its version of the case is correct. – In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). – In a criminal case, the proof required is higher; it must be beyond a reasonable doubt.
Kulper - Econ 189 Kulper 15 The Plaintiff’s Case
• First, Opening Arguments • Plaintiff Calls Witnesses
– This is a brief summary, given by each side, of the facts they hope to demonstrate. – Questions to own witnesses is direct examination. – Lawyer only asks questions with helpful answers. – Questions to opposing witnesses is cross examination. – Again, lawyer asks questions with helpful answers. – This is asking the judge to decide that the plaintiff has no case worth proceeding with. • Defendant Questions Witnesses • Defendant Moves for Directed Verdict Kulper - Econ 189 Kulper 16 The Defendant’s Case
• Opening Arguments • Defendant Calls Witnesses
– Defendant’s opening arguments were presented earlier, before the plaintiff presented its case. – Questions to own witnesses is direct examination. – Lawyer only asks questions with helpful answers. – Questions to opposing witnesses is cross examination. – Again, lawyer asks questions with helpful answers. – Brief summary, by both sides, urging the jury to believe their side of the case. • Plaintiff Questions Witnesses • Closing Arguments Kulper - Econ 189 Kulper 17 After Both Sides Rest (Finish)
u Jury Instructions
• The judge instructs the jury to evaluate the case solely on the facts of the evidence presented. • If the case is influenced by a certain legal presumption, the judge will summarize that for the jury. u Deliberation and Verdict
• The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks). • Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required. Kulper - Econ 189 Kulper 18 The Trial is Over… or is it?
u Motions after the Verdict • The loser might request the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence. u Appeal • The recourse for the loser is to file an appeal, a request for a higher court to examine the facts. • The appeals court may affirm the verdict, modify the award, reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict. u Settlement • At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal.
Kulper - Econ 189 Kulper 19 “The process of litigation, with its potential for errors or biases, may influence the outcome of a dispute as strongly as the law itself. That is all the more reason to prevent disputes if possible, or to use alternative methods of dispute resolution.”
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- Spring '08