leb.pp.3 - Chapter 3 Chapter Dispute Resolution Trial of...

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Unformatted text preview: Chapter 3 Chapter Dispute Resolution Trial of Civil Case Trial Pre-Trial: Pleadings Pleadings P’s Complaint (Petition) Statement of Jurisdiction Jurisdiction Statement of Facts Facts – Ashcroft v. Iqbal (2009) Statement of Claims & Legal Theories Claims Prayer for Relief Relief Trial of Civil Case Trial Pre-Trial: Pleadings Pleadings Summons (Citation) Statement notifying D of lawsuit and time Statement notifying of frame for responding frame “Service of Process” --- summons (citation) --served on D along with copy of Complaint (Petition) (Petition) Trial of Civil Case Trial Pre-Trial: Pleadings Pleadings D’s Response i. Do nothing = Default Judgment (1) Fluor Daniel v. Seward (1) Fluor Former employee sued employer for wrongful termination/breach of employment contract. D failed to answer complaint within 20 days of answer service of process. P awarded $562,489 in lost wages & benefits. $562,489 Trial of Civil Case Trial Pre-Trial: Pleadings Pleadings D’s Response iii. File Special Appearance or Other i. Motion Motion * Special Appearance (lack of Special personal jurisdiction) jurisdiction) * Motion to Dismiss (failure to state claim) state Trial of Civil Case Trial Pre-Trial: Pleadings Pleadings D’s Response iii. File an Answer File Answer * Deny or admit P’s allegations Deny * Raise affirmative defenses Raise * Add counterclaims, cross-claims Add Trial of Civil Case Trial Pre-Trial: Pleadings Pleadings P’s Reply Response to D’s counterclaim against P Response Trial of Civil Case Pre-Trial: Discovery Pre-Trial Discovery Prevent surprise at trial, narrow issues, Prevent assess strengths/weaknesses of case, encourage settlement encourage – Request for Admissions: one party’s written Request Admissions one request to opposing party, seeking written admissions or denials – Interrogatories: one party’s written questions one to opposing party, seeking written narrative answers answers Trial of Civil Case Trial Pre-Trial: Discovery Discovery - Request for Production: one party’s Request Production one written request to opposing party, seeking copies of documents or tangible items - Depositions: party or nonparty’s out-ofDepositions party or court sworn testimony Trial of Civil Case Trial Pre-Trial: Discovery Discovery Sanctions for Noncompliance Sanctions Forsythe v. Hales Forsythe Assigned to the following students Assigned to brief and present in class on Thursday, 2/3: Thursday, (1) Jennifer Fan (2) Mick Idrizovic (3) Rachelle Morato Trial of Civil Case Trial Pre-Trial: Motions Motions – Summary Judgment Granted only if: No Genuine Issue of Material Fact No Trial of Civil Case Trial Pre-Trial: Motions Motions – Fontenot v. Upjohn Co. Yes. If no evidence is presented by Yes. either side on key issue, D wins because P has burden of proof. Trial of Civil Case Trial Pre-Trial Conference Informal discussion between judge and attorneys for both sides: attorneys – Pursue settlement – Identify issues for trial Trial of Civil Case Trial Trial 1. Jury Selection (“voir dire”) Jury Select jurors by asking questions and disqualifying certain individuals through: through: a. Challenges for Cause (give reason; a. Cause unlimited number) b. Peremptory Challenges (no reason, Peremptory limited number) Trial of Civil Case Trial Trial 2. Opening Statements Opening Each side provides overview of case overview (big picture of facts and evidence) Trial of Civil Case Trial Trial 3. Evidence Evidence Support for your side of the story Support (documents, witnesses) a. Motions a. Motions Directed Verdict (P and/or D) Directed * Reasonable minds cannot differ as Reasonable minds to conclusion Trial of Civil Case Trial Trial 4. Closing Arguments Each side summarizes case, trying to persuade jury to render verdict in its favor its Trial of Civil Case Trial Trial 5. Jury Instructions, Deliberations, Verdict Jury Judge provides written instructions to jury (explanation of applicable law and burden of proof) * Key: Instructions must be supported by Key Instructions the evidence the Trial of Civil Case Trial Trial 5. Jury Instructions Jury a. Riley v. Willis Riley Assigned to the following students to brief Assigned and present in class on Thursday, 2/3: (1) Zohair Ahmad (1) (2) Lourdes Ibarra (3) Alex Pette (4) Yadi Torres Trial of Civil Case Trial Trial 6. Post-Verdict Motions 6. Post-Verdict a. Motion for Judgment Notwithstanding the Verdict (JNOV) * Reasonable minds cannot differ as to conclusion Trial of Civil Case Trial Trial 6. Post-Verdict Motions 6. Post-Verdict b. Motion for New Trial New (trial judge error, jury misconduct, hung jury) Trial of Civil Case Trial Trial 7. Judgment Judgment Judgment entered in conformity with jury’s verdict, unless judge decides to grant unless Motion for JNOV or Motion for New Trial Collect judgment entered against D: Collect a. Writ of Execution (seize/sell D’s assets) Execution b. Writ of Garnishment (attach D’s wages) Garnishment Post-Trial/Appellate Phase Post-Trial/Appellate Appeal questions of law, not fact – Whether the trial judge’s interpretation and Whether application of the law was correct? application (Examples: rulings on motions, admission of evidence, jury instructions) of Post-Trial/Appellate Post-Trial/Appellate SEC v. Ginsburg Assigned to the following students to Assigned brief and present in class on Thursday, 2/3: 2/3: (1) Nicole Garcia (1) (2) Matthew Kindig (2) (3) Amanda O’Sullivan (4) Victor Pham Alternative Dispute Resolution Resolution Advantages Over Litigation (1) Informal (2) Faster (3) Cheaper (4) More efficient Arbitration Arbitration Arbitrator (decision maker) Arbitration Hearing (both sides present Arbitration arguments) arguments) Arbitration Award (decision) Non-binding (court referral) Non-binding Binding (agreement of parties) Arbitration Agreements Arbitration Liberal Federal policy favoring Liberal favoring enforcement of arbitration agreements enforcement of Federal Arbitration Act Gilmer v. Interstate Gilmer Arbitration agreement binding? Yes, policy considerations favoring arbitration override P’s concerns arbitration P could not show that Congress, in enacting could not Federal Arbitration Act, intended to preclude arbitration of ADEA claims P still free to file claim with EEOC Parties are free to waive rights by agreement Allied-Bruce v. Dobson Allied-Bruce Is D correct (Federal law favoring Is arbitration trumps State law invalidating trumps arbitration)? arbitration)? – Yes, the Federal Arbitration Act overrides Yes, overrides Alabama law (Supremacy Clause) Buckeye v. Cardegna Buckeye Should D’s motion to dismiss be granted? - Yes, arbitration provision is severable Yes, severable from rest of agreement (provision is enforceable even if rest of agreement is not) - Arbitrator can initially consider issue Arbitrator of contract’s validity Mediation Mediation Mediator (facilitator) No Hearing No Award No Texas ADR Procedures Act Texas It is the policy of the State of Texas to It “encourage the peaceable resolution of disputes…” disputes…” – www.tmtr.org/Generalinfo/Statute.htm ...
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This note was uploaded on 08/24/2011 for the course LEB 323 taught by Professor Baker during the Spring '08 term at University of Texas at Austin.

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