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Unformatted text preview: M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 206 CHAPTER 6 The Court System and
Alternative Dispute Resolution DIGITAL RESOURCES
Chapter 6 Digital Resources at www.pearsonhighered.com/goldman
Video Case Studies:
Meet the Courthouse Team
Jury Selection: Potential Juror Challenged for Cause
Settlement Conference with Judge
Chapter Summary • Web Links • Court Opinions • Glossary • Comprehension Quizzes
Technology Resources M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 207 LEARNING OBJECTIVES “ After studying this chapter, you
should be able to: I was never ruined but twice; once when I lost
a lawsuit, and once when I won one. ” Voltaire 1. Recognize the professional
opportunities for paralegals in
2. Describe the state court systems.
3. Describe the federal court system.
4. Explain subject-matter jurisdiction
of federal and state courts.
5. Describe in personam jurisdiction
6. Recognize the professional
opportunities for paralegals in
alternative dispute resolution. Paralegals at Work
You have applied for a position as a paralegal at a law firm
that specializes in litigation. Most of the law firm’s practice
is in the area of tort litigation, particularly representing
plaintiffs in negligence cases. The firm has scheduled an interview with you. On the day you arrive for the interview,
you are called into the office of Ms. Harriet Green, a senior
partner in the firm. Ms. Green wants to determine your
knowledge of judicial and nonjudicial dispute resolution.
Ms. Green informs you that she will tell you the facts of a
case and will ask you several questions about the case.
Ms. Green explains that Ms. Heather Andersen has retained the law firm as the plaintiff to represent her in an accident case. Ms. Green explains that Ms. Andersen was driving
her automobile on the main road of your city when Mr. Joseph
Burton, driving another automobile, ran a red street light and
hit Ms. Andersen’s vehicle, causing her severe physical injuries, as well as pain and suffering. The law firm plans to file
a lawsuit for the tort of negligence on behalf of Ms. Andersen,
the plaintiff, against Mr. Burton, the defendant. Ms. Andersen
is a resident of your state. Mr. Burton is a resident of another
state who was visiting your state when the accident occurred.
Ms. Green asks you the following questions: “What is a
complaint?” “In what court or courts can our law firm file
the complaint on behalf of Ms. Andersen?” “If we lose the
case at trial, to what court can our law firm, on behalf of
Ms. Andersen, appeal the trial court’s decision?” “After the
case is filed in the court, is there any way of resolving the
case in favor of Ms. Andersen before the case goes to trial?”
Consider the issues involved in this scenario as you read
the chapter. 7. Explain the use of arbitration
8. Explain the use of mediation
9. Explain a paralegal’s duty to
provide pro bono services to
the public. 207 M06_GOLD0000_00_SE_CH06.QXD 208 12/5/09 1:03 AM Page 208 PA R T I I Introduction to Law INTRODUCTION FOR THE PARALEGAL
A paralegal often assists attorneys who represent clients in the courts of this country.
The court systems and the procedure to bring and defend a lawsuit are complicated,
and a paralegal should be knowledgeable of court systems and how a lawsuit proceeds
to trial and is decided in court.
Also, some parties to a dispute will choose to settle a case, or have the case
reviewed or determined by a private party rather than by the courts. Thus, a paralegal
should be knowledgeable of the manner and procedures for having disputes resolved
outside of the court system.
The two major court systems in the United States are: (1) the federal court system, and (2) the court systems of the 50 states and the District of Columbia. Each of
these systems has jurisdiction to hear different types of lawsuits. The process of bringing, maintaining, and defending a lawsuit is called litigation. Litigation is a difficult,
time-consuming, and costly process that must comply with complex procedural rules.
Although it is not required, most parties employ a lawyer to represent them when they
are involved in a lawsuit.
Several forms of nonjudicial dispute resolution have developed in response to the
expense and difficulty of bringing a lawsuit. These methods, collectively called alternative dispute resolution (ADR), are being used more and more often to resolve commercial disputes.
Paralegals are especially valuable in providing support to lawyers who are engaged in litigation and alternative dispute resolution. Paralegals interview clients, prepare documents submitted to courts, conduct legal research, and assist lawyers during
trial and alternative dispute resolution.
This chapter focuses on the various court systems, the jurisdiction of courts to
hear and decide cases, the litigation process, and alternative dispute resolution.
The following feature discusses the career opportunities for paralegal professionals in courts and litigation. State Court Systems
Paralegal professionals should be familiar with the state court system in which he or
she could be involved in assisting attorneys who practice before one of these state CAREER OPPORTUNITIES FOR PARALEGALS
IN COURTS AND LITIGATION
Paralegals are an extremely fortunate group of individuals because many of them get to work in a special
environment—the court system. Paralegals are often
hired by state and federal courts to assist judges in the
preparation of trial. Paralegals often assist a judge or
justice by conducting research, briefing arguments,
preparing documents, and such.
In addition to working for the courts directly, many
more paralegals are employed by attorneys who represent clients who are involved in litigation in the courts.
These paralegals may work for plaintiffs’ attorneys and
defendants’ attorneys in civil litigation lawsuits such as
breach of contract, negligence and product liability,
business litigation, and other civil lawsuits. These civil
lawsuits may be either in state courts or federal courts. Paralegals are also hired to work for prosecuting
attorneys and defense attorneys in the criminal law
area. Paralegals assist prosecuting and defense attorneys to prepare for trial and assist the attorney during
trial. Criminal law cases are brought both in state
and federal courts, depending on the jurisdiction of
A paralegal who works for the courts or litigation attorneys must have a detailed knowledge of the
court systems that serve the relevant jurisdiction that
he or she works in. Paralegals who work in positions
that are not directly involved in supporting lawsuits in
court should still have knowledge of the court systems in this country and the jurisdiction of such court
systems. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 209 C H A P T E R 6 The Court System and Alternative Dispute Resolution 209 Courthouse, St. Louis,
Missouri. State courts hear and
decide the majority of cases in the
United States. courts. Each state and the District of Columbia have separate court systems. Most state
court systems include:
■ Limited-jurisdiction trial courts
General-jurisdiction trial courts
Intermediate appellate courts
Supreme court (or highest state court) Limited-Jurisdiction Trial Court
State limited-jurisdiction trial courts, which sometimes are referred to as inferior
trial courts, hear matters of a specialized or limited nature.
Examples Traffic courts, juvenile courts, justice-of-the-peace courts, probate
courts, family law courts, and courts that hear misdemeanor criminal law cases
and civil cases involving lawsuits of less than a certain dollar amount. Because
these courts are trial courts, evidence can be introduced and testimony given.
Most limited-jurisdiction courts keep a record of their proceedings. Their decisions usually can be appealed to a general-jurisdiction court or an appellate court. Web Exploration
Use www.google.com and find
out if your state has a smallclaims court. If so, what is the
dollar limit for cases to qualify
to be heard by the small-claims
court? Many states also have created small-claims courts to hear civil cases involving
small dollar amounts (e.g., $5,000 or less). Generally, the parties must appear individually and cannot have a lawyer represent them. The decisions of small-claims courts
are often appealable to general-jurisdiction trial courts or appellate courts. General-Jurisdiction Trial Court
Every state has a general-jurisdiction trial court. These courts often are called
courts of record because the testimony and evidence at trial are recorded and stored
for future reference. These courts hear cases that are not within the jurisdiction of General-jurisdiction trial court
(courts of record) A court that
hears cases of a general nature
that are not within the jurisdiction
of limited-jurisdiction trial courts. M06_GOLD0000_00_SE_CH06.QXD 210 12/5/09 1:03 AM Page 210 PA R T I I Introduction to Law limited-jurisdiction trial courts, such as felonies, civil cases above a certain dollar
amount, and so on. Some states divide their general-jurisdiction courts into two divisions, one for criminal cases and another for civil cases.
General-jurisdiction trial courts hear evidence and testimony. The decisions
these courts hand down are appealable to an intermediate appellate court or the state
supreme court, depending on the circumstances. Intermediate Appellate Court
court An intermediate court that
hears appeals from trial courts. In many states, intermediate appellate courts (also called appellate courts or courts of
appeal) hear appeals from trial courts. These courts review the trial court record to
determine any errors at trial that would require reversal or modification of the trial
court’s decision. Thus, the appellate court reviews either pertinent parts or the entire
trial court record from the lower court. No new evidence or testimony is permitted. The
parties usually file legal briefs with the appellate court, stating the law and facts that support their positions. Appellate courts usually grant a short oral hearing to the parties.
Appellate court decisions are appealable to the state’s highest court. In less populated states that do not have an intermediate appellate court, trial court decisions can
be appealed directly to the state’s highest court. Highest State Court
Highest state court The top
court in a state court system; it
hears appeals from intermediate
state courts and certain trial
courts. Web Exploration
Go to Exhibit 6.2. Find the website
for your state or district or
territory and go to this website.
What is the name of the highest
court? In what city is the highest
court located? Each state has a highest state court in its court system. Most states call this highest
court supreme court. The function of a state supreme court is to hear appeals from
intermediate state courts and certain trial courts. The highest court hears no new
evidence or testimony. The parties usually submit pertinent parts of or the entire lower
court record for review. The parties also submit legal briefs to the court and typically
are granted a brief oral hearing. Decisions of state supreme courts are final, unless a
question of law is involved that is appealable to the U.S. Supreme Court.
Exhibit 6.1 portrays a typical state court system. Exhibit 6.2 lists the websites for
the court systems of 50 states and jurisdictions associated with the United States. Federal Court System
Paralegal professionals are sometimes involved in assisting attorneys who practice before one of the many federal courts. Article III of the U.S. Constitution provides that
the federal government’s judicial power is vested in one “supreme court.” This court is
the U.S. Supreme Court. The Constitution also authorizes Congress to establish
“inferior” federal courts in the federal court system. Pursuant to this power,
Congress has established special federal courts, the U.S. district courts, and the U.S.
courts of appeal. Federal judges are appointed for life by the President with the advice
and consent of the Senate (except bankruptcy court judges, who are appointed for
14-year terms, and U.S. Magistrate Judges, who are appointed for an 8-year term). Special Federal Courts
The special federal courts established by Congress have limited jurisdiction. They
Web Exploration ■ Go to http://www.uscourts.gov/
courtlinks/. Choose and click on
“Bankruptcy Court.” Place the
cursor on your state and click.
What is the location of the
Bankruptcy Court closest to you? ■
■ U.S. Tax Court: Hears cases involving federal tax laws
U.S. Court of Federal Claims: Hears cases brought against the United
U.S. Court of International Trade: Hears cases involving tariffs and
international commercial disputes
U.S. Bankruptcy Court: Hears cases involving federal bankruptcy laws M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 211 C H A P T E R 6 The Court System and Alternative Dispute Resolution 211 Exhibit 6.1 Typical state court system APPEAL
APPEAL TO U.S. SUPREME COURT
.S. SUPREME State Supreme Court State Appeals Court State Trial Courts of
(one per county) Civil
Division Small Claims
Division Justice of the
Peace Courts U.S. District Courts
The U.S. District Courts are the federal court system’s trial courts of general jurisdiction. The District of Columbia and each state have at least one federal district court;
the more populated states have more than one. The geographical area that each court
serves is referred to as a district. At present there are 94 federal district courts. The federal district courts are empowered to impanel juries, receive evidence, hear testimony,
and decide cases. Most federal cases originate in federal district courts. U.S. Courts of Appeals
The U.S. Courts of Appeals are the federal court system’s intermediate appellate
courts. The federal court system has 13 circuits. Circuit refers to the geographical area
served by a court. Eleven are designated by a number, such as the “First Circuit,”
“Second Circuit,” and so on. The Twelfth Circuit court is located in Washington,
D.C., and is called the District of Columbia Circuit.
As appellate courts, these circuit courts hear appeals from the district courts
located in their circuit, as well as from certain special courts and federal administrative
agencies. The courts review the record of the lower court or administrative agency
proceedings to determine if any error would warrant reversal or modification of the
lower court decision. No new evidence or testimony is heard. The parties file legal
briefs with the court and are given a short oral hearing. Appeals usually are heard by a
three-judge panel. After the panel renders a decision, a petitioner can request a review
en banc by the full court. U.S. District Courts The federal
court system’s trial courts of
general jurisdiction. Web Exploration
Go to http://www.uscourts.gov/
courtlinks/. Choose and click on
“District Court.” Place the cursor
on your state and click. What is
the location of the U.S. District
Court closest to you? U.S. Courts of Appeals The
federal court system’s intermediate
appellate courts. Web Exploration
Visit the website of the U.S.
Court for the Federal Circuit at
www.fedcir.gov/. M06_GOLD0000_00_SE_CH06.QXD 212 12/5/09 1:03 AM Page 212 PA R T I I Introduction to Law Exhibit 6.2 Websites for state court systems
State Website Alabama
District of Columbia
www.courts.state.pa.us M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 213 C H A P T E R 6 The Court System and Alternative Dispute Resolution 213 Exhibit 6.2 Websites for state court systems
and jurisdictions (continued)
State Website Puerto Rico
www.courts.state.wy.us Exhibit 6.3 Map of the federal circuit courts The Thirteenth Circuit court of appeals was created by Congress in 1982. Called
the Court of Appeals for the Federal Circuit and located in Washington, D.C., this
court has special appellate jurisdiction to review the decisions of the Court of Federal
Claims, the Patent and Trademark Office, and the Court of International Trade. This
court of appeals was created to provide uniformity in the application of federal law in
certain areas, particularly patent law.
The map in Exhibit 6.3 shows the 13 federal circuit courts of appeals. Exhibit 6.4
lists the websites of the 13 U.S. courts of appeals. Web Exploration
Go to http://www.uscourts.gov/
courtlinks/. Choose and click on
“Court of Appeals.” Place the
cursor on your state and click.
What is the location of the U.S.
Court of Appeals closest to you? M06_GOLD0000_00_SE_CH06.QXD 214 12/5/09 1:03 AM Page 214 PA R T I I Introduction to Law Exhibit 6.4 Websites for federal courts of appeals
Court of Appeals Main Office Website First Circuit
Second Circuit Boston, Massachusetts
New York, New York www.ca1.uscourts.gov
www.ca2.uscourts.gov Third Circuit
District of Columbia
Court of Appeals for
the Federal Circuit Philadelphia, Pennsylvania
St. Paul, Minnesota
San Francisco, California
Washington, DC www.ca3.uscourts.gov
www.cafc.uscourts.gov Supreme Court of the United States, Washington, DC. The highest court in the land is
the Supreme Court of the United States, located in Washington, DC. The U.S. Supreme
Court decides the most important constitutional law cases and other important issues it deems
ripe for review and decision. The Supreme Court’s unanimous and majority decisions are
precedent for all the other courts in the country. Supreme Court of the United States
Paralegals should be familiar with Supreme Court of the United States, its jurisdiction,
the types of cases it hears, how cases are determined to be heard by the Supreme
Court, and the voting of the Supreme Court justices. The highest court in the land is
the Supreme Court of the United States located in Washington, D.C. This court is
composed of nine justices who are nominated by the President and confirmed by the M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 215 C H A P T E R 6 The Court System and Alternative Dispute Resolution 215 Exhibit 6.5 Federal court system
U.S. Supreme Court
Washington, D.C. U.S. Courts of Appeals U.S. Court of Appeals
for the federal circuit (for 11 territorial circuits and D.C. circuit) Many Federal
Agencies U.S. District
(96 districts) U.S. Tax
Court U.S. Court
of Fe d e r a l
Claims U.S. Court of
Trade U.S. Pa t e n t
and Trademark Office U.S. B a n k r u p t cy
Courts Senate. The President appoints one justice as chief justice, responsible for the administration of the Supreme Court. The other eight justices are associate justices.
The U.S. Supreme Court, which is an appellate court, hears appeals from federal circuit courts of appeals and, under certain circumstances, from federal district
courts, special federal courts, and the highest state courts. The Supreme Court hears
no evidence or testimony. As with other appellate courts, the lower court record is reviewed to determine whether an error has been committed that warrants a reversal or
modification of the decision. Legal briefs are filed, and the parties are granted a brief
oral hearing. The Supreme Court’s decision is final.
Exhibit 6.5 illustrates the federal court system. U.S. Supreme Court The
Supreme Court was created by
Article III of the U.S. Constitution.
The Supreme Court is the highest
court in the land. It is located in
Washington, DC. Petition for Certiorari
A petitioner must file a petition for certiorari asking the Supreme Court to hear the
case. If the Court decides to review a case, it will issue a writ of certiorari. Because the
Court issues only about 100 opinions each year, writs usually are granted only in cases
involving constitutional and other important issues.
The justices meet once a week to discuss what cases merit review. The votes of four
justices are necessary to grant an appeal and schedule an oral argument before the Court
(“rule of four”). Written opinions by the justices usually are issued many months later.
The U.S. Constitution gives Congress the authority to establish rules for the
appellate review of cases by the Supreme Court, except in the rare case where mandatory review is required. Congress has given the Supreme Court discretion to decide
what cases it will hear.
Exhibit 6.6 shows a petition for certiorari to the U.S. Supreme Court. Petition for certiorari A petition
asking the Supreme Court to hear
one’s case. Writ of certiorari An official
notice that the Supreme Court will
review one’s case. M06_GOLD0000_00_SE_CH06.QXD 216 12/5/09 1:03 AM Page 216 PA R T I I Introduction to Law Exhibit 6.6 Petition for certiorari for the case District of
Columbia, . . . v. Dick Anthony Heller M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 217 C H A P T E R 6 The Court System and Alternative Dispute Resolution Exhibit 6.6 Petition for certiorari for the case District of
Columbia, . . . v. Dick Anthony Heller (continued) 217 M06_GOLD0000_00_SE_CH06.QXD 218 12/5/09 1:03 AM Page 218 PA R T I I Introduction to Law Vote of the U.S. Supreme Court
Each justice of the Supreme Court, including the chief justice, has an equal vote. The
Supreme Court can issue the following types of decisions:
■ Unanimous decision. If all of the justices voting agree as to the outcome
and reasoning used to decide the case, it is a unanimous opinion. Unanimous decisions are precedent for later cases.
Example Suppose all nine justices hear a case, and all nine agree to the outcome (the petitioner wins) and the reason why (the Equal Protection Clause of
the U.S. Constitution had been violated); this is a unanimous decision. ■ Majority decision. If a majority of the justices agree to the outcome and
reasoning used to decide the case, it is a majority opinion. Majority decisions are precedent for later cases.
Example If all nine justices hear a case, and five of them agree as to the outcome (the petitioner wins) and all of these five justices agree to the same reason
why (the Equal Protection Clause of the U.S. Constitution has been violated), it
is a majority opinion. ■ Plurality decision. If a majority of the justices agree to the outcome of
the case, but not to the reasoning for reaching the outcome, it is a plurality opinion. A plurality decision settles the case but is not precedent
for later cases.
Example If all nine justices hear a case, and five of them agree as to the outcome (the petitioner wins), but not all of these five agree to the reason why (suppose that three base their vote on a violation of the Equal Protection Clause and
two base their vote on a violation of the Freedom of Speech Clause of the U.S.
Constitution), this is a plurality decision. Five justices have agreed to the same
outcome, but those five have not agreed for the same reason. The petitioner wins
his or her case, but the decision is not precedent for later cases. Web Exploration
Go to the website of the U.S.
Supreme Court at www
.supremecourtus.gov. Who are the
nine justices of the U.S. Supreme
Court? Who is the Chief Justice?
What President appointed each
justice and what political party
(e.g., Democrat, Republican) did
that President belong to? ■ Tie decision. Sometimes the Supreme Court sits without all nine justices present because of illness or conflict of interest, or because a justice
has not been confirmed to fill a vacant seat on the court. In the case of a
tie vote, the lower court decision is affirmed. These votes are not precedent for later cases.
Example A petitioner won her case at the court of appeals. At the U.S.
Supreme Court, only eight justices hear the case. Four justices vote for the petitioner, and four justices vote for the respondent. This is a tie vote. The petitioner
remains the winner because she won at the court of appeals. The decision of the
Supreme Court sets no precedent for later cases. A justice who agrees with the outcome of a case but not the reason proffered by
other justices can issue a concurring opinion, setting forth his or her reasons for deciding the case. A justice who does not agree with a decision can file a dissenting opinion
that sets forth the reasons for his or her dissent. Jurisdiction of Federal and State Courts
Jurisdiction over the subject
matter of a lawsuit. A federal or state court must have subject-matter jurisdiction to hear a case. Article
III, Section 2, of the U.S. Constitution sets forth the jurisdiction of federal courts. Federal courts have limited jurisdiction to hear cases involving federal questions and cases
involving diversity of citizenship. State courts have jurisdiction to hear certain types of
cases. Jurisdiction of federal and state courts to hear cases is discussed in the following
paragraphs. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 219 C H A P T E R 6 The Court System and Alternative Dispute Resolution 219 Subject-Matter Jurisdiction of Federal Courts
Federal courts have jurisdiction to hear cases based on the subject matter of the case.
The federal courts have jurisdiction to hear cases involving “federal questions.”
Federal question cases are cases arising under the U.S. Constitution, treaties, and federal statutes and regulations. There is no dollar-amount limit on federal question cases
that can be brought in federal court. Federal question A case arising
under the U.S. Constitution,
treaties, or federal statutes and
regulations. Example A lawsuit involving federal securities law concerns a federal question
(a federal statute) and will be heard by a U.S. district court. Subject-Matter Jurisdiction of State Courts
State courts have jurisdiction to hear cases involving subject matters that federal courts
do not have jurisdiction to hear. These usually involve state laws.
Examples Real estate law, corporation law, partnership law, limited liability
company law, contract law, sales and lease contracts, and negotiable instruments
are state law subject matters. Diversity of Citizenship
A case involving a state court subject matter may be brought in federal court if there is
diversity of citizenship. Diversity of citizenship occurs if the lawsuit involves (a) citizens of different states, (b) a citizen of a state and a citizen or subject of a foreign country, and (c) a citizen of a state and a foreign country is the plaintiff. A corporation is
considered to be a citizen of the state in which it is incorporated and in which it has its
principal place of business. The reason for providing diversity of citizenship jurisdiction was to prevent state court bias against nonresidents. The federal court must apply
the appropriate state’s law in deciding the case. The dollar amount of the controversy
must exceed $75,000 to be brought in federal court. If this requirement is not met, the
action must be brought in the appropriate state court.
Example Henry, a resident of the state of Idaho, is driving his automobile in the
state of Idaho when he negligently hits Mary, a pedestrian. Mary is a resident of
the state of New York. There is no federal question involved in this case; it is an
automobile accident that involves state negligence law. However, there is diversity
of citizenship in this case: Henry is from the state of Idaho, while Mary is from another state, the state of New York. Usually the case must be brought in the state
in which the automobile accident occurred because this is where most of the witnesses and evidence will be from. In this case, Mary, the plaintiff, may bring her
lawsuit in federal court in Idaho, and if she does so the case will remain in federal
court. If Mary brings the case in Idaho state court it will remain in Idaho state
court if Henry agrees; however, Henry can move the case to federal court. Exclusive and Concurrent Jurisdiction
Federal courts have exclusive jurisdiction to hear cases involving federal crimes, antitrust, bankruptcy, patent and copyright cases, suits against the United States, and
most admiralty cases. State courts cannot hear these cases.
State and federal courts have concurrent jurisdiction to hear cases involving
diversity of citizenship and federal questions over which federal courts do not have
exclusive jurisdiction (e.g., cases involving federal securities laws). If a plaintiff brings
a case involving concurrent jurisdiction in state court, the defendant can remove the
case to federal court. If a case does not qualify to be brought in federal court, it must
be brought in the appropriate state court.
The following feature discusses a paralegal’s duty to investigate in what court a
particular action should be brought. Diversity of citizenship A case
between (1) citizens of different
states, (2) a citizen of a state and a
citizen or subject of a foreign
country, and (3) a citizen of a state
and a foreign country where a
foreign country is the plaintiff. M06_GOLD0000_00_SE_CH06.QXD 220 12/5/09 1:03 AM Page 220 PA R T I I Introduction to Law ETHICAL PERSPECTIVE Duty of a Paralegal to Investigate What
Court in Which to Bring a Lawsuit
Mya is driving her automobile in St. Ignace, Michigan, when her car is rear-ended by
another automobile driven by Pierre. Mya is injured in the accident. The accident
was caused by Pierre’s negligence in driving above the speed limit and not paying
attention to the road. Mya comes to attorney Paula Johnson’s office to consult
about suing Pierre to recover monetary damages for her physical injuries and also
to recover damages for the pain and suffering.
You work as the paralegal for Attorney Johnson. Attorney Johnson asks you to
investigate the facts and determine in what court the case could be brought. You
correctly determine that the subject matter of the case—negligence in causing an
automobile accident—belongs in state court. And because the accident occurred in
Michigan you automatically assume that the case should be brought in Michigan
state court. However, you fail to determine what states the plaintiff and defendant
are residents of.
You report to Attorney Johnson that the case should be brought in Michigan
state court. Here, you have failed to conduct the proper investigation necessary to
determine the proper court for the case to be brought in. You have failed to find out
what states the parties are residents of, or if one of the parties is a resident of a
foreign country. If the parties are from different states, or one of the parties is from
a foreign country, the case qualifies to be brought in federal court because of
diversity of citizenship. By failing to conduct a proper investigation you have been
negligent and have breached your ethical duty as a paralegal that you owe to your
supervising attorney. By failing to discover whether the case involves diversity of
citizenship, the case may end up being brought in Michigan state court when in fact
the case qualifies to be brought in federal court as well. Without this information,
Attorney Johnson is lacking sufficient information to decide the benefits of bringing
the case in either state or federal court. Personal Jurisdiction and Other Issues
Not every court has the authority to hear all types of cases. First, to bring a lawsuit in
a court, the plaintiff must have standing to sue. In addition, the court must have
jurisdiction to hear the case, and the case must be brought in the proper venue. These
topics are discussed in the following paragraphs. Standing to Sue
To bring a lawsuit, a plaintiff must have standing to sue. This means the plaintiff must
have some stake in the outcome of the lawsuit.
Example Linda’s friend Jon is injured in an accident caused by Emily. Jon
refuses to sue. Linda cannot sue Emily on Jon’s behalf because she does not have
an interest in the result of the case. In Personam Jurisdiction
In personam (personal)
jurisdiction Jurisdiction over
the parties to a lawsuit. Jurisdiction over a person is called in personam jurisdiction, or personal jurisdiction.
A plaintiff, by filing a lawsuit with a court, gives the court in personam jurisdiction over
himself or herself. The court must also have in personam jurisdiction over the defendant,
which is usually obtained by having a summons served to that person within the territorial boundaries of the state (i.e., service of process). Service of process is usually
accomplished by personal service of the summons and complaint on the defendant. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 221 C H A P T E R 6 The Court System and Alternative Dispute Resolution 221 If personal service is not possible, alternative forms of notice, such as mailing of
the summons or publication of a notice in a newspaper, may be permitted. A corporation is subject to personal jurisdiction in the state in which it is incorporated, has its
principal office, and is doing business.
A party who disputes the jurisdiction of a court can make a special appearance in
that court to argue against imposition of jurisdiction. Service of process is not permitted during such an appearance. In Rem Jurisdiction
A court may have jurisdiction to hear and decide a case because it has jurisdiction
over the property of the lawsuit: This is called in rem jurisdiction (“jurisdiction over
Example A state court would have jurisdiction to hear a dispute over the ownership of a piece of real estate located within the state. This is so even if one or
more of the disputing parties lives in another state or states. In rem jurisdiction Jurisdiction
to hear a case because of
jurisdiction over the property
of the lawsuit. Quasi in Rem Jurisdiction
Sometimes a plaintiff who obtains a judgment against a defendant in one state will
try to collect the judgment by attaching property of the defendant that is located
in another state. This is permitted under quasi in rem jurisdiction, or attachment
Example If a plaintiff wins a monetary judgment against a defendant in a
Florida state court, but the defendant’s only property to satisfy the judgment is
located in Idaho, the Idaho state court has quasi in rem jurisdiction to order the
attachment of the defendant’s property in Idaho to satisfy the Florida court
judgment. Quasi in rem (attachment)
jurisdiction Jurisdiction allowed
a plaintiff who obtains a judgment
in one state to try to collect the
judgment by attaching property
of the defendant located in
another state. Long-Arm Statutes
In most states, a state court can obtain jurisdiction over persons and businesses located
in another state or country through the state’s long-arm statute. These statutes extend a state’s jurisdiction to nonresidents who were not served a summons within the
state. The nonresident must have had some minimum contact with the state
[International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 1945
U.S. Lexis 1447 (1945)]. In addition, maintenance of the suit must uphold the traditional notions of fair play and substantial justice.
The exercise of long-arm jurisdiction is generally permitted over nonresidents
who have (1) committed torts within the state (e.g., caused an automobile accident in
the state), (2) entered into a contract either in the state or that affects the state (and
allegedly breached the contract), or (3) transacted other business in the state that
allegedly caused injury to another person. Long-arm statute A statute that
extends a state’s jurisdiction to
nonresidents who were not served
a summons within the state. Venue
Venue requires lawsuits to be heard by the court with jurisdiction nearest the location
in which the incident occurred or where the parties reside.
Example Harry, a Georgia resident, commits a felony crime in Los Angeles
County, California. The California Superior Court, located in Los Angeles, is the
proper venue because the crime was committed in Los Angeles County and the
witnesses are probably from the area, and so on.
Occasionally, pretrial publicity may prejudice jurors located in the proper venue.
In these cases, a change of venue may be requested so a more impartial jury can be
found. The courts generally frown upon forum shopping (i.e., looking for a favorable
court without a valid reason). Venue A concept that requires
lawsuits to be heard by the court
with jurisdiction that is nearest the
location in which the incident
occurred or where the parties
reside. M06_GOLD0000_00_SE_CH06.QXD 222 12/5/09 1:03 AM Page 222 PA R T I I Introduction to Law Forum-Selection and Choice-of-Law Clauses
Parties sometimes agree in their contract as to what state’s courts, federal courts, or
country’s court will have jurisdiction to hear a legal dispute should one arise. Such
clauses in contracts are called forum-selection clauses.
In addition to agreeing to a forum, the parties also often agree in contracts as to
what state’s law or country’s law will apply in resolving a dispute. These clauses are
called choice-of-law clauses. Alternative Dispute Resolution (ADR) Alternative dispute resolution
(ADR) Methods of resolving
disputes other than litigation. The use of the court system to resolve business and other disputes can take years and
cost thousands, if not millions, of dollars in legal fees and expenses. In commercial litigation, the normal business operations of the parties are often disrupted. To avoid or
lessen these problems, businesses are increasingly turning to methods of alternative
dispute resolution (ADR) and other aids to resolving disputes. The most common
form of ADR is arbitration. Other forms of ADR are negotiation, mediation, conciliation,
minitrial, fact-finding, and using a judicial referee.
The following feature discusses the career opportunities for paralegal professionals in alternative dispute resolution. Negotiation
Negotiation A procedure in
which the parties to a dispute
engage in negotiations to try to
reach a voluntary settlement of
their dispute. The simplest form of alternative dispute resolution is engaging in negotiation between
the parties to try to settle a dispute. Negotiation is a procedure whereby the parties to
a dispute engage in discussions to try to reach a voluntary settlement of their dispute.
Negotiation may take place either before a lawsuit is filed, after a lawsuit is filed, or
before other forms of alternative dispute resolution are engaged in.
In a negotiation, the parties, who often are represented by attorneys, negotiate with each other to try to reach an agreeable solution to their dispute. During CAREER OPPORTUNITIES FOR PARALEGALS
IN ALTERNATIVE DISPUTE RESOLUTION
The growth in using alternative dispute resolution to
solve disputes has been phenomenal. Alternative dispute resolution is just that—an alternative to using the
litigation process and court systems to resolve disputes.
The major form of alternative dispute resolution
is arbitration. The United States Supreme Court has
upheld the use of arbitration in many types of disputes. Arbitration is used particularly in contract disputes, because many contracts contain arbitration
clauses—that is, the parties to the contract have
agreed in their contract not to use the court systems
to solve their disputes. Instead, they have expressly
agreed that an arbitrator, and not a jury, will resolve
Most major companies have placed arbitration
agreements in their contracts. Examples Arbitration clauses appear in contracts to purchase goods, to lease automobiles, to
employ services, and in other types of contracts.
Also, arbitration clauses are included by employers in many employment contracts. Thus, if an employee has a dispute with his or her employer, the
dispute goes to arbitration for resolution because
the employee has given up his or her right to use the
court system by agreeing to the arbitration clause.
Mediation also has become an indispensable
method of helping to solve disputes. In mediation, the
mediator does not act as a decision-maker but, instead, acts as a facilitator to try to help the disputing
parties reach a settlement of their dispute. Mediation
often is used in family law matters, particularly in helping reach a settlement in divorce cases.
Paralegals who work for lawyers in business lawrelated matters, contract disputes, and family law matters should have a thorough understanding of
alternative dispute resolution. Paralegals often are
called upon to help attorneys prepare for arbitration,
mediation, and other forms of alternative dispute resolution. This chapter addresses the major forms of
alternative dispute resolution. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 223 C H A P T E R 6 The Court System and Alternative Dispute Resolution negotiation proceedings, the parties usually make offers and counteroffers to one another. The parties or their attorneys also may provide information to the other side
that would assist the other side in reaching an amicable settlement.
Many courts require that the parties to a lawsuit engage in settlement discussions
prior to trial to try to negotiate a settlement of the case. The judge must be assured
that a settlement of the case is not possible before he or she permits the case to go to
trial. Judges often convince the parties to engage in further negotiations if the judge
determines that the parties are not too far apart in the negotiations of a settlement.
If a settlement of the dispute is reached through negotiation, a settlement agreement is drafted that contains the terms of the agreement. A settlement agreement is
an agreement that is voluntarily entered into by the parties to a dispute that settles the
dispute. Each side must sign the settlement agreement for it to be effective. The settlement agreement usually is submitted to the court, and the case will be dismissed
based on execution of the settlement agreement. 223 Settlement agreement An
agreement voluntarily entered into
by the parties to a dispute that
settles the dispute. Arbitration
Paralegals working in many areas of the law—litigation, contract law, business law, and
such—will encounter arbitration clauses in some of the cases that they are working on.
In arbitration, the parties choose an impartial third party to hear and decide the dispute.
This neutral party is called the arbitrator: Arbitrators usually are selected from members of the American Arbitration Association (AAA) or another arbitration association.
Labor union agreements, franchise agreements, leases, and other commercial
contracts often contain arbitration clauses that require disputes arising out of the
contract to be submitted to arbitration. If there is no arbitration clause, the parties can
enter into a submission agreement, whereby they agree to submit a dispute to arbitration after the dispute arises.
The benefits of arbitration are that it is less expensive than litigation, is completed
faster than a lawsuit, and is decided by a person who is knowledgeable in the area of law
that is in dispute. Some consumers and employees who are subject to arbitration agreements argue that arbitration unfairly favors businesses and employers over them.
In the past, some courts were reluctant to permit arbitration of a dispute or found
that arbitration agreements were illegal. However, in a series of cases the U.S. Supreme
Court upheld the validity of many types of arbitration clauses or agreements.
Exhibit 6.7 is the form for a Demand for Arbitration. Federal Arbitration Act
The Federal Arbitration Act (FAA) was originally enacted by Congress in 1925 to
reverse the longstanding judicial hostility to arbitration agreements that had existed as
English common law and had been adopted by American courts [9 U.S.C. Sections 1 et. seq.].
The Act provides that arbitration agreements involving commerce are valid, irrevocable, and enforceable contracts, unless some grounds exist at law or equity (e.g., fraud,
duress) to revoke them. The FAA permits one party to obtain a court order to compel
arbitration if the other party has failed, neglected, or refused to comply with an arbitration agreement.
About half of the states have adopted the Uniform Arbitration Act, which promotes the arbitration of disputes at the state level. Many federal and state courts have
instituted programs to refer legal disputes to arbitration or another form of alternative
dispute resolution. ADR Providers
ADR services usually are provided by private organizations or individuals who qualify
to hear and decide certain disputes. For example, the American Arbitration Association (AAA) is the largest private provider of ADR services. The AAA employs persons Arbitration A form of ADR in
which the parties choose an
impartial third party to hear and
decide the dispute. M06_GOLD0000_00_SE_CH06.QXD 224 12/5/09 1:03 AM Page 224 PA R T I I Introduction to Law Exhibit 6.7 Demand for arbitration Source: Reprinted with permission of American Arbitration Association Web Exploration
Go to the website of the American
Arbitration Association (AAA) at
28749 and read the article entitled
“Arbitration and Mediation.” who are qualified in special areas of the law to provide mediation and arbitration services in those areas. These persons are called neutrals.
For example, if parties have a contract dispute involving an employment contract,
a construction contract, an Internet contract, or other commercial contract or business
dispute, the AAA has a special group of neutrals that can hear and decide these cases.
Other mediation and arbitration associations are located throughout the United States
and internationally. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 225 C H A P T E R 6 The Court System and Alternative Dispute Resolution 225 ADR Procedure
An arbitration agreement often describes the specific procedures that must be followed
for a case to proceed to and through arbitration. If one party seeks to enforce an arbitration clause, that party must give notice to the other party. The parties then select an
arbitration association or arbitrator as provided in the agreement. The parties usually
agree on the date, time, and place of the arbitration. This can be at the arbitrator’s offices, at a law office, or at any other agreed-upon location.
At the arbitration, the parties can call witnesses to give testimony, and introduce
evidence to support their case and refute the other side’s case. Rules similar to those
followed by federal courts usually are adhered to at the arbitration. Often, each party
pays a filing fee and other fees for the arbitration. Sometimes the agreement provides
that one party will pay all of the costs of the arbitration. Arbitrators are paid by the
hour or day, or other agreed-upon method of compensation. Decision and Award
After the hearing is complete, the arbitrator reaches a decision and issues an award.
The parties often agree in advance to be bound by an arbitrator’s decision and remedy.
This is called binding arbitration. In this situation, the decision and award of the arbitrator cannot be appealed to the courts. If the arbitration is not binding, the decision and award of the arbitrator can be appealed to the courts. This is called
non-binding arbitration. Courts usually give great deference to an arbitrator’s decision and award.
If a decision and award has been rendered by an arbitrator but a party refuses to
abide by the arbitrator’s decision, the other party may file an action in court to have the
arbitrator’s decision enforced.
Example Assume that there has been a contract dispute between NorthWest Corporation and SouthEast Corporation that goes to binding arbitration. The arbitrator issues a decision that awards SouthEast Corporation $5 million against
NorthWest Corporation. If NorthWest Corporation fails to pay the award, SouthEast Corporation can file an action in court to have the award enforced by the court. Other Forms of ADR
As mentioned, in addition to arbitration and negotiation, the other forms of ADR are
mediation, conciliation, minitrial, fact-finding, and using a judicial referee. These forms of
ADR are discussed in the following paragraphs. Mediation
Mediation is a form of negotiation in which a neutral third party assists the disputing
parties in reaching a settlement of their dispute. The neutral third party is called a
mediator. The mediator usually is a person who is an expert in the area of the dispute,
or a lawyer or retired judge. The mediator is selected by the parties as provided in their
agreement, or as otherwise selected by the parties. Unlike an arbitrator, however, a mediator does not make a decision or an award.
A mediator’s role is to assist the parties in reaching a settlement. The mediator
usually acts as an intermediary between the parties. In many cases the mediator will
meet with the two parties at an agreed-upon location, often the mediator’s office or one
of the offices of the parties. The mediator then will meet with both parties, usually separately, to discuss their side of the case.
After discussing the facts of the case with both sides, the mediator will encourage
settlement of the dispute and will transmit settlement offers from one side to the other.
In doing so, the mediator points out the strengths and weaknesses of each party’s case
and gives his or her opinion to each side why they should decrease or increase their settlement offers. The mediator’s job is to facilitate settlement of the case. Mediation A form of negotiation
in which a neutral third party
assists the disputing parties in
reaching a settlement of their
Mediator A neutral third party
who assists the disputing parties in
reaching a settlement of their
dispute. The mediator cannot make
a decision or an award. M06_GOLD0000_00_SE_CH06.QXD 226 12/5/09 1:03 AM Page 226 PA R T I I Introduction to Law Paralegals in Practice
Kathleen A. Stradley
Kathleen A. Stradley is a
Certified Arbitrator and
Certified Mediator with
26 years of paralegal
experience. She also is an
Advanced Certified Paralegal and Civil Litigation
Specialist. Since 1998,
Kathleen has worked as an
independent contractor of
litigation support and consulting services in North
Dakota and Minnesota.
She assists trial attorneys
and corporations with
case management and
trial preparation. She also
serves as a private arbitrator and mediator in legal
Becoming involved in alternative dispute resolution (ADR)
has been an interesting process. Before starting my own
business, I worked for several law firms and a corporation in
Ohio and North Dakota. During that time, I was aware that
ADR could save a lot of time and money. However, I did not
know much about putting ADR into practice. So, I enrolled
in an intense course that allowed me to obtain my mediator
certification after 40 hours of training.
A short time later, I trained for a new binding arbitration program for the North Dakota Workers’ Compensation
Bureau. This program provided employees and employers
with the option of binding arbitration rather than a formal
administrative hearing or judicial solution. Instead, a hearing
was held in front of three arbitrators, one from each of three societal areas: labor, industry, and the public. For
about a year, I served as a public sector arbitrator and
chairperson for the panel. After the panel was reduced
to one person, I continued to serve as an arbitrator for
Workers’ Compensation hearings.
Later, I served as an arbitrator and mediator through
the American Arbitration Association (AAA) for family,
commercial, personal injury, employment/workplace, and
construction industry claims. In 1997, after a terrible flood
destroyed my hometown of Grand Forks, North Dakota,
I mediated in many disaster-related commercial and construction disputes, as well as family law cases. In more
recent years, I spoke with a number of disaster victims who
experienced an ADR process. Most of them agreed that
ADR was a valuable course of action that helped them
rebuild their homes and lives.
Due to mandatory arbitration provisions in most contracts, and the trend of court ordered dispute resolution
proceedings, I think there will be fewer trials in the future.
Instead, I believe more and more lawsuits will be resolved
with alternative methods. Cases using ADR proceedings
typically involve fewer documents. However, these documents need to be prepared much earlier, and in greater
detail than cases that are tried in court with a jury. In mediation, each party submits their statement of the case and
its value to the mediator in advance of the mediation. In
arbitration, the evidence is submitted to the arbitrator in
advance of the arbitration. ADR proceedings usually occur
after discovery is completed and well in advance of the
Source: Stradley, Kathleen A., “ADR: Changing Ground.” Facts & Findings, the Journal for Legal Assistants XXXI.4 (January 2005): 16–17.
Career Chronicle Edition 2004, NALA. The mediator gives his or her opinion to the parties as to what he or she believes
to be a reasonable settlement of the case, and usually proposes settlement of the dispute. The parties are free to accept or reject such proposal. If the parties agree to a settlement, a settlement agreement is drafted that expresses their agreement. Execution
of the settlement agreement ends the dispute. The parties, of course, must perform
their duties under the settlement agreement.
Example Parties to a divorce action often use mediation to try to help resolve
the issues involved in the divorce, including property settlement, payment of
alimony and child support, custody of children, visitation rights, and other issues.
Exhibit 6.8 is the form for a Request for Mediation.
Conciliation A form of dispute
resolution in which a conciliator
transmits offers and counteroffers
between the disputing parties in
helping to reach a settlement of
their dispute. Conciliator A third party in a
conciliation proceeding who assists
the disputing parties in reaching a
settlement of their dispute. The
conciliator cannot make a decision
or an award. Conciliation
Conciliation is another form of alternative dispute resolution. In conciliation, a party
named a conciliator helps the parties to try to reach a resolution of their dispute. Conciliation often is used when the parties refuse to face each other in an adversarial setting.
The conciliator schedules meetings and appointments during which information can be
transferred between the parties. A conciliator usually carries offers and counteroffers for
a settlement back and forth between the disputing parties. A conciliator cannot make a
decision or an award.
Although the role of a conciliator is not to propose a settlement of the case,
many often do. In many cases, conciliators are neutral third parties, although in some M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 227 C H A P T E R 6 The Court System and Alternative Dispute Resolution 227 Exhibit 6.8 Request for mediation Source: Reprinted with permission of American Arbitration Association. circumstances the parties may select an interested third party to act as the conciliator.
If the parties reach a settlement of their dispute through the use of conciliation, a settlement agreement is drafted and executed by the parties. Minitrial
A minitrial is a voluntary private proceeding in which the lawyers for each side present a shortened version of their case to the representatives of the other side. The
representatives of each side who attend the minitrial have the authority to settle the Minitrial A voluntary private
proceeding in which the lawyers
for each side present a shortened
version of their case to
representatives of the other side,
and usually to a neutral third party,
in an attempt to reach a settlement
of the dispute. M06_GOLD0000_00_SE_CH06.QXD 228 12/5/09 1:03 AM Page 228 PA R T I I Introduction to Law dispute. In many cases, the parties also hire a neutral third party, often someone who
is an expert in the field concerning the disputed matter or a legal expert, who presides
over the minitrial. After hearing the case, the neutral third party often is called upon
to render an opinion as to how the court would most likely decide the case.
During a minitrial, the parties get to see the strengths and weaknesses of their
own position and that of the opposing side. Once the strengths and weaknesses of both
sides are exposed, the parties to a minitrial often settle the case. The parties also often
settle a minitrial based on the opinion rendered by the neutral third party. If the parties settle their dispute after a minitrial, they will enter into a settlement agreement setting forth their agreement.
Minitrials serve a useful purpose in that they act as a substitute for the real trial,
but they are much briefer and not as complex and expensive to prepare for. By exposing the strengths and weaknesses of both sides’ cases, the parties usually are more realistic regarding their own position and the merits of settling the case prior to an
expensive, and often more risky, trial. Fact-Finding
In some situations, called fact-finding, the parties to a dispute will employ a neutral
third party to act as a fact-finder to investigate the dispute. The fact-finder is authorized to investigate the dispute, gather evidence, prepare demonstrative evidence, and
prepare reports of his or her findings.
A fact-finder is not authorized to make a decision or award. In some cases, a factfinder will recommend settlement of the case. The fact-finder presents the evidence
and findings to the parties, who then may use such information in negotiating a settlement if they wish. Judicial Referee
If the parties agree, the court may appoint a judicial referee to conduct a private trial
and render a judgment. Referees, who often are retired judges, have most of the powers of a trial judge, and their decisions stand as a judgment of the court. The parties
usually reserve their right to appeal. Online ADR
Go to the website of the American
Arbitration Association (AAA) at
http://www.adr.com. Does the AAA
provide online dispute resolution? Several services now offer online arbitration. Most of these services allow a party
to a dispute to register the dispute with the service and then notify the other party
by email of the registration of the dispute. Most online arbitration requires the registering party to submit an amount that the party is willing to accept or pay to the
other party in the online arbitration. The other party is afforded the opportunity to
accept the offer. If that party accepts the offer, a settlement has been reached. The
other party, however, may return a counteroffer. The process continues until a
settlement is reached or one or both of the parties remove themselves from the
online ADR process.
Also, several websites offer online mediation services. In an online mediation, the
parties sit before their computers and sign onto the site. Two chat rooms are assigned
to each party. One chat room is used for private conversations with the online mediator, and the other chat room is for conversations with both parties and the mediator.
Online arbitration and mediation services charge fees for their services. The fees
are reasonable. In an online arbitration or mediation, a settlement can be reached
rather quickly without paying lawyers’ fees and court costs. The parties also are acting
through a more objective online process than meeting face-to-face or negotiating over
the telephone, either of which could conclude with verbal arguments.
The ethical duty and social responsibility of a paralegal professional to provide
pro bono services to the public is discussed in the following feature. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 229 C H A P T E R 6 The Court System and Alternative Dispute Resolution 229 ETHICAL PERSPECTIVE A Paralegal’s Duty to Provide Pro Bono
Services to the Public
Mr. Alvarez is a paralegal in a law firm and works directly with Ms. Dawson, a
partner in the law firm. In addition to her law practice with the law firm, Ms. Dawson
volunteers to work one evening per week at a domestic abuse center that serves
women and children.
At the center, Ms. Dawson interviews domestic abuse victims and pursues
whatever legal actions that can be taken to assist the victims and their families. This
often includes doing the legal work for obtaining restraining orders, government
assistance, and spousal and child support. All of Ms. Dawson’s services at the
domestic abuse center are provided pro bono, that is, for free.
One day Ms. Dawson asks her paralegal, Mr. Alvarez, if he would be interested
in volunteering to help her one night each month at the domestic abuse shelter.
Ms. Dawson explains that she could use Mr. Alvarez’s assistance as a paralegal to
help conduct interviews, prepare documents, and obtain government and other
assistance for the domestic abuse victims and their families. Mr. Alvarez would be
under the supervision of Ms. Dawson while working at the center.
Does a paralegal owe an ethical duty to provide pro bono services to the public?
Model and state paralegal Code of Ethics and Professional Responsibility provide
that a paralegal has an ethical duty to provide pro bono services. Thus, a paralegal
should strive to provide pro bono services under the authority of an attorney or as
authorized by a court. It is best if these services are provided to assist the poor,
persons with limited education, charitable programs, or protect civil rights. PARALEGAL’S ETHICAL DECISION
Because a paralegal owes an ethical duty to provide pro bono services to the
public, Mr. Alvarez should agree to assist Ms. Dawson at the domestic abuse shelter
one evening each month in order to fulfill his duty to the public. This would be an
excellent way for Mr. Alvarez to satisfy his ethical duty as a paralegal professional. Concept Review and Reinforcement
Alternative dispute resolution
American Arbitration Association
Arbitration clauses 223
Associate justices 215
Attachment jurisdiction 221
Binding arbitration 225
Change of venue 221
Chief justice 215 Choice-of-law clause 222
Concurrent jurisdiction 219
Concurring opinion 218
Court of Appeals for the Federal
Courts of record 209
Dissenting opinion 218
Diversity of citizenship 219
Exclusive jurisdiction 219 Federal Arbitration Act (FAA) 223
Federal court system 210
Federal question 219
Forum-selection clause 222
General-jurisdiction trial court 209
Highest state court 210
In personam jurisdiction 220
In rem jurisdiction 221
Intermediate appellate court 210
Judicial referee 228
Limited-jurisdiction trial courts 209 M06_GOLD0000_00_SE_CH06.QXD 230 12/5/09 1:03 AM Page 230 PA R T I I Introduction to Law Litigation 208
Long-arm statute 221
Majority decision 218
Non-binding arbitration 225
Online arbitration 228
Online mediation 228
Personal jurisdiction 220
Petition for certiorari 215 Plurality decision 218
Quasi in rem jurisdiction 221
Service of process 220
Settlement agreement 223
Small-claims court 209
Special federal courts 210
Standing to sue 220
State court system 208
Subject-matter jurisdiction 218
Submission agreement 223
Supreme Court of the United
Tie decision 218 Unanimous decision 218
Uniform Arbitration Act 223
U.S. Bankruptcy Court 210
U.S. Courts of Appeals 211
U.S. Court of Federal Claims 210
U.S. Court of International
U.S. District Courts 211
U.S. Supreme Court 215
U.S. Tax Court 210
Writ of certiorari 215 SUMMARY OF KEY
State Court Systems
Court This state court hears matters of a specialized or limited nature (e.g., misdemeanor
criminal matters, traffic tickets, civil matters under a certain dollar amount). Many states
have created small-claims courts that hear small-dollar-amount civil cases (e.g., under
$5,000) in which parties cannot be represented by lawyers. General-Jurisdiction
Trial Court This is a state court that hears cases of a general nature that are not within the jurisdiction
of limited-jurisdiction trial courts. Intermediate Appellate
Court This state court hears appeals from state trial courts. The appellate court reviews the trial
court record in making its decision; no new evidence is introduced at this level. Highest State Court Each state has a highest court in its court system. This court hears appeals from appellate
courts and, where appropriate, trial courts. This court reviews the record in making its
decision; no new evidence is introduced at this level. Most states call this court the
supreme court. Federal Court System
Special Federal Courts Federal courts that have specialized or limited jurisdiction. They include:
1. U.S. Tax Court: hears cases involving federal tax laws
2. U.S. Court of Federal Claims: hears cases brought against the United States
3. U.S. Court of International Trade: hears cases involving tariffs and international
4. U.S. Bankruptcy Court: hear cases involving federal bankruptcy law U.S. District Courts Federal trial courts of general jurisdiction that hear cases that are not within the
jurisdiction of specialized courts. Each state has at least one U.S. district court; more
populated states have several district courts. The area served by one of these courts is
called a district. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 231 C H A P T E R 6 The Court System and Alternative Dispute Resolution U.S. Courts of Appeals 231 Intermediate federal appellate courts that hear appeals from district courts located in their
circuit, and in certain instances from special federal courts and federal administrative
agencies. There are 12 geographical circuits in the United States. Eleven serve areas
composed of several states, and another is located in Washington, DC. A thirteenth circuit
court—the Court of Appeals for the Federal Circuit—is located in Washington, DC, and
reviews patent, trademark, and international trade cases. Supreme Court of the United States
U.S. Supreme Court Highest court of the federal court system; hears appeals from the circuit courts and, in
some instances, from special courts and U.S. district courts. The Court, located in
Washington, DC, comprises nine justices, one of whom is named
Chief Justice. Decisions by U.S.
Supreme Court Petition of certiorari and writ of certiorari: To have a case heard by the U.S. Supreme Court,
a petitioner must file a petition for certiorari with the Court. If the Court decides to hear the
case, it will issue a writ of certiorari. Voting by the U.S.
Supreme Court 1. Unanimous decision: All of the justices agree as to the outcome and reasoning used to
decide the case; the decision becomes precedent.
2. Majority decision: A majority of justices agrees as to the outcome and reasoning used to
decide the case; the decision becomes precedent.
3. Plurality decision: A majority of the justices agrees to the outcome but not to the
reasoning; the decision is not precedent.
4. Tie decision: If there is a tie vote, the lower court’s decision stands; the decision is not
5. Concurring opinion: A justice who agrees as to the outcome of the case but not the
reasoning used by other justices may write a concurring opinion setting forth his
or her reasoning.
6. Dissenting opinion: A justice who disagrees with the outcome of a case may write a
dissenting opinion setting forth his or her reasoning. Jurisdiction of Federal and State Courts
Jurisdiction The court must have jurisdiction over the subject matter of the lawsuit; each court has
limited jurisdiction to hear only certain types of cases. Limited Jurisdiction of
Federal Courts Federal courts have jurisdiction to hear the following types of cases:
1. Federal question: cases arising under the U.S. Constitution, treaties, and federal statutes
and regulations; no dollar-amount limit.
2. Diversity of citizenship: cases between (a) citizens of different states, (b) a citizen of a state
and a citizen or subject of a foreign country; and (c) a citizen of a state and a foreign
country where the foreign country is the plaintiff. The controversy must exceed
$75,000 for the federal court to hear the case. Jurisdiction of State
Courts State courts have jurisdiction to hear cases that federal courts do not have jurisdiction
to hear. Exclusive Jurisdiction Federal courts have exclusive jurisdiction to hear cases involving federal crimes, antitrust,
and bankruptcy; patent and copyright cases; suits against the United States; and most
admiralty cases. State courts may not hear these matters. Concurrent Jurisdiction State courts hear some cases that may be heard by federal courts. State courts have
concurrent jurisdiction to hear cases involving diversity of citizenship cases and federal
question cases over which the federal courts do not have exclusive jurisdiction. The
defendant may have the case removed to federal court. M06_GOLD0000_00_SE_CH06.QXD 232 12/5/09 1:03 AM Page 232 PA R T I I Introduction to Law Personal Jurisdiction and Other Issues
Standing to Sue To bring a lawsuit, the plaintiff must have some stake in the outcome of the lawsuit. In Personam Jurisdiction
(or Personal Jurisdiction) The court must have jurisdiction over the parties to a lawsuit. The plaintiff submits to the
jurisdiction of the court by filing the lawsuit there. Personal jurisdiction is obtained over
the defendant by serving that person service of process. In Rem Jurisdiction A court may have jurisdiction to hear and decide a case because it has jurisdiction over the
property at issue in the lawsuit (e.g., real property located in the state). Quasi In Rem Jurisdiction
A plaintiff who obtains a judgment against a defendant in one state may utilize the court
(or Attachment Jurisdiction) system of another state to attach property of the defendant’s located in the second state.
Long-Arm Statutes These statutes permit a state to obtain personal jurisdiction over an out-of-state defendant
as long as the defendant had the requisite minimum contact with the state. The out-of-state
defendant may be served process outside the state in which the lawsuit has been brought. Venue A case must be heard by the court that has jurisdiction nearest to where the incident at
issue occurred or where the parties reside. A change of venue will be granted if prejudice
would occur because of pretrial publicity or another reason. Forum-Selection Clause This clause in a contract designates the court that will hear any dispute that arises out of
the contract. Choice-of-Law Clause This clause in a contract designates what state’s law or country’s law will apply in resolving
a dispute. Alternative Dispute Resolution (ADR)
ADR ADR consists of nonjudicial means of solving legal disputes. ADR usually saves time and
money required by litigation. Negotiation
Negotiation A procedure whereby the parties to a dispute engage in discussions to try to reach a
voluntary settlement of their dispute. Arbitration
Arbitration Arbitration is a form of ADR where an impartial third party, called the arbitrator, hears and
decides the dispute. The arbitrator makes an award. The award is appealable to a court if
the parties have not given up this right. Arbitration is designated by the parties pursuant to:
1. Arbitration clause: Agreement contained in a contract stipulating that any dispute arising
out of the contract will be arbitrated.
2. Submission agreement: Agreement to submit a dispute to arbitration after the
dispute arises. Federal Arbitration
Act (FAA) Federal statute that provides that arbitration agreements involving commerce are valid,
irrevocable, and enforceable contracts, unless some grounds exist at law or equity
(e.g., fraud, duress) to revoke them. Other Forms of ADR
Mediation In mediation, a neutral third party, called a mediator, assists the parties in trying to reach a
settlement of their dispute. The mediator does not make an award. Conciliation In conciliation, an interested third party, called a conciliator, assists the parties in trying to
reach a settlement of their dispute. The conciliator does not make an award. Minitrial A minitrial is in a short session, the lawyers for each side present their case to
representatives of each party who has the authority to settle the dispute. M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 233 C H A P T E R 6 The Court System and Alternative Dispute Resolution 233 Fact-Finding In fact-finding, the parties hire a neutral third person, called a fact-finder, to investigate the
dispute and report his or her findings to the adversaries. Judicial Referee With the consent of the parties, the court can appoint a judicial referee (usually a retired
judge or lawyer) to conduct a private trial and render a judgment. The judgment stands as
the judgment of the court and may be appealed to the appropriate appellate court. Online ADR
Online ADR A form of alternative dispute resolution where the parties use an online provider of ADR
services. This could be online arbitration, online mediation, and other forms of online ADR. WORKING THE WEB
1. Visit the website http://www.clickNsettle.com. What
services are offered by this website? What are the costs
of using this site’s services?
2. Visit the website http://www.internetneutral.com.
What services are offered by this site? What are the
costs of these services?
3. Visit the website http://www.abanet.org/published/
preview/briefs/home.html. Select one of the case
names. Find the “Petitioner’s Brief” for the selected
case and either print out or write down the “Question
Presented” for that case.
4. Visit the website http://www.law.cornell.edu/supct/
index.html. Find the most recent decision of the U.S. Supreme Court. Read the case heading and the summary of the case. Who are the parties? What issue was
presented to the Supreme Court? What was the decision of the Supreme Court?
5. Go to the website http://www.adr.org.overview. Read
“A Brief Overview of the American Arbitration Association.” Define a “neutral.”
6. Find the homepage for the courts in your state. What
are the names of the courts in your state? Draw a
diagram of the courts of your state. Include limitedjurisdiction courts, general-jurisdiction trial courts,
appellate courts, and the highest state court. CRITICAL THINKING &
1. Describe the difference between state limitedjurisdiction courts and general-jurisdiction courts.
2. What are the functions of the state intermediate courts
and the highest state courts? Explain.
3. List the special federal courts, and describe the types of
cases that each of these courts can hear.
4. What is the function of U.S. District Courts? How
many are there?
5. What is the function of U.S. Courts of Appeals? How
many U.S. Courts of Appeals are there? How does the
Court of Appeals for the Federal Circuit differ from the
other U.S. Courts of Appeals?
6. What is the function of the U.S. Supreme Court? How
many justices does the Supreme Court have? How does
the Chief Justice differ from Associate Justices?
7. Explain the difference between the following types of
decisions by the U.S. Supreme Court: (1) unanimous
decision, (2) majority decision, (3) plurality decision,
and (4) tie decision. Which types of decision or decisions
establish precedent? What are concurring opinions and
dissenting opinions? 8. Explain the difference between a federal court’s jurisdiction to hear a case based on (1) federal question
jurisdiction and (2) diversity of citizenship jurisdiction.
9. Explain the difference between subject-matter jurisdiction and in personam jurisdiction. Explain the difference between in rem jurisdiction and quasi in rem
10. What is a long-arm statute? What is the purpose of a
11. What is venue? When can a change of venue be granted?
12. What is the difference between judicial dispute resolution and nonjudicial alternative dispute resolution?
Why would one be preferred over the other, and who
would have a preference?
13. Define arbitration. Describe how the process of arbitration works. What is an award?
14. Describe the difference between mediation and conciliation. How do these differ from arbitration?
15. Describe minitrial and fact-finding. M06_GOLD0000_00_SE_CH06.QXD 234 12/5/09 1:03 AM Page 234 PA R T I I Introduction to Law Building Paralegal Skills
VIDEO CASE STUDIES
Meet the Courthouse Team
An interview with Judge Kenney, a
trial judge, who introduces members
of the courthouse and the roles they
serve as members of the courtroom
After viewing the video case study at www.pearsonhighered
.com/goldman answer the following:
1. What type of relationship should the paralegal develop
with the courthouse team?
2. In addition to the courtroom team, what other members
of the courthouse should the paralegal know about? Jury Selection: Potential Juror
Challenged for Cause
Trial counsel for a case, which is going
to be tried before a jury, are interviewing the individual potential jurors to
select an appropriate jury member. After viewing the video case study at www.pearsonhighered
.com/goldman answer the following:
1. What is the role of the jury in the justice system?
2. Why are the attorneys allowed to request that certain individuals not be allowed to serve on a jury?
3. Is everyone guaranteed a right to a jury trial and the
American system of justice? Settlement Conference with Judge
Opposing counsel are meeting with
Judge Lee prior to the start of the trial.
The trial judge is presenting the
strengths and weaknesses of each side
in an attempt to get the parties to settle the case.
After viewing the video case study at www.pearsonhighered
.com/goldman answer the following:
1. How is a settlement conference with a judge before trial
like an alternative method of dispute resolution?
2. Is the judge in the settlement conference being unfair to
one side or the other?
3. Why is the judge trying to settle the case before trial? ETHICS ANALYSIS &
1. May a paralegal represent a client in court?
2. Are a paralegal’s time records or calendar subject to the
3. You have been appointed as a trustee of a client’s children’s educational trust. You need to petition the
court for a release of the funds for noneducational purposes—paying the taxes on the trust income.
[Ziegler v. Harrison Nickel, 64 Cal. App. 4th 545; 1998
Lexis 500.] May you appear alone as the trustee and
represent the trust in the court proceedings? Would a
nonlawyer, nonparalegal be permitted to appear? DEVELOPING YOUR
With a group of other students, selected by you or as assigned by your instructor, review the facts of the following
case. As a group, discuss the following questions.
1. What is a forum-selection clause?
2. Is putting a forum-selection clause (or choice-of-law
clause) in a contract good practice? 3. If there had not been a forum-selection clause in the
contract, would the state of Washington have jurisdiction over Carnival Cruise Lines to make it answer the
Shute’s lawsuit in Washington? M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 235 C H A P T E R 6 The Court System and Alternative Dispute Resolution Carnival Cruise Lines, Inc. v. Shute
Mr. and Mrs. Shute, residents of the State of Washington,
purchased passage for a seven-day cruise on the Tropicale, a
cruise ship operated by Carnival Cruise Lines. Inc. (Carnival).
They paid the fare to the travel agent, who forwarded the
payment to Carnival’s headquarters in Miami, Florida.
Carnival prepared the tickets and sent them to the Shutes.
Each ticket consisted of five pages, including contract terms.
The ticket contained a forum-selection clause that designated the State of Florida as the forum for any lawsuits
arising under or in connection with the ticket and cruise.
The Shutes boarded the Tropicale in Los Angeles, which set
sail for Puerto Vallarta, Mexico. While the ship was on its return voyage and in international waters off the coast of
Mexico, Mrs. Shute was injured when she slipped on a deck
mat during a guided tour of the ship’s galley. Upon return to
the State of Washington, she filed a negligence lawsuit
against Carnival in U.S. district court in Washington, seeking
damages. Carnival defended, arguing that the lawsuit could
only be brought in a court located in the State of Florida pursuant to the forum-selection clause contained in its ticket.
The U.S. Supreme Court held that the forum-selection
clause contained in Carnival Cruise Lines’ ticket was enforceable against Mrs. Shute. The Supreme Court stated that 235 including a reasonable forum clause in a form contract is permissible for several reasons. First, a cruise line has a special interest in limiting the number of jurisdictions in which it
potentially could be subject to a lawsuit. Because a cruise ship
typically carries passengers from many locales, it is likely that a
mishap on a cruise could subject the cruise line to litigation in
several different jurisdictions. Secondly, a clause establishing
the forum for dispute resolution dispells any confusion as to
where lawsuits arising from the contract must be brought and
defended, sparing litigants the time and expense of pretrial motions to determine the correct forum, and conserving judicial
resources needed to decide such issues. Finally, passengers who
purchase tickets containing a forum-selection clause benefit in
reduced fares reflecting the savings that the cruise line enjoys
by limiting the forum in which it may be sued.
The Supreme Court held that the forum-selection clause
in Carnival Cruise Lines’ ticket was fair and reasonable, and
therefore enforceable against Mrs. Shute. If Mrs. Shute
wished to sue Carnival Cruise Lines, she must do so in a
court in the State of Florida, not in a court in the State of
Source: Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522,
113 L.Ed.2d 622, Web 1991 U.S. Lexis 2221 (Supreme Court of the
United States) PARALEGAL
Based on the facts of the case described in the Opening
Scenario, prepare and complete the following documents as
well as you can from the facts of the scenario. 1. A complaint to file the case on behalf of the plaintiff
against the defendant in the appropriate trial court of
2. The defendant’s answer to the complaint. LEGAL ANALYSIS &
Ashcroft, Attorney General
v. The Free Speech Coalition 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403, Web
2002 U.S. Lexis 2789 Supreme Court of the United States Congress enacted the Child Pornography Prevention Act
(CPPA). Section 2256(8)(B) of the act prohibits “any visual
depiction, including any photograph, film, video, picture, or
computer-generated image or picture” that “is, or appears
to be, of a minor engaging in sexually explicit conduct.”
This section includes computer-generated images known as
“virtual child pornography.” A first-time offender may be
imprisoned for 15 years; repeat offenders face prison sentences up to 30 years. The Free Speech Coalition, a trade
association for the adult-entertainment industry, sued the United States, alleging that Section 2256(8)(B) violated
their constitutional free speech rights. The District Court
granted summary judgment to the United States government, but the court of appeals reversed. The U.S. Supreme
Court granted certiorari.
1. Does Section 2256(8)(B), which criminalizes virtual child
pornography, violate the Freedom of Speech Clause of
the First Amendment to the U.S. Constitution? M06_GOLD0000_00_SE_CH06.QXD 236 12/5/09 1:03 AM Page 236 PA R T I I Introduction to Law Carnival Cruise
Lines, Inc. v. Shute 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622,
Web 1991 U.S. Lexis 2221 Supreme Court of the United States Mr. and Mrs. Shute, residents of the state of Washington,
purchased passage for a seven-day cruise on the Tropicale, a
cruise ship operated by the Carnival Cruise Lines, Inc. (Carnival). They paid the fare to the travel agent, who forwarded
the payment to Carnival’s headquarters in Miami, Florida.
Carnival prepared the tickets and sent them to the Shutes.
Each ticket consisted of five pages, including contract terms.
The ticket contained a forum-selection clause that designated the state of Florida as the forum for any lawsuits arising under or in connection with the ticket and cruise.
The Shutes boarded the Tropicale in Los Angeles, which
set sail for Puerto Vallarta, Mexico. While the ship was on its
return voyage and in international waters off the Mexican
coast, Mrs. Shute was injured when she slipped on a deck mat Allison v. ITE Imperial
Corporation James Clayton Allison, a resident of Mississippi, was employed by the Tru-Amp Corporation as a circuit breaker
tester. As part of his employment, Allison was sent to inspect,
clean, and test a switch gear located at the South Central Bell
Telephone Facility in Brentwood, Tennessee. One day he attempted to remove a circuit breaker manufactured by ITE
Corporation (ITE) from a bank of breakers when a portion of the breaker fell off. The broken piece fell behind a switching bank and, according to Allison, caused an electrical fire
and explosion. Allison was severely burned in the accident.
Allison brought suit against ITE in Mississippi state court,
1. Can this suit be removed to federal court? 621 F.Supp. 456, Web 1985 U.S. Dist. Lexis 14205 United States District Court for the Eastern District of
New York AMF Incorporated and Brunswick Corporation both manufacture electric and automatic bowling center equipment.
The two companies became involved in a dispute over
whether Brunswick had advertised certain automatic scoring
devices in a false and deceptive manner. The two parties settled the dispute by signing an agreement that any future
problems between them involving advertising claims would
be submitted to the National Advertising Council for arbitration. Two years later Brunswick advertised a new product, Calder v. Jones Question
1. Is the forum-selection clause in Carnival Cruise Lines’
ticket enforceable? 729 F.Supp. 45, Web 1990 U.S. Dist. Lexis 607 United States District Court for the Southern District of
Mississippi AMF Inc. v. Brunswick
Corporation during a guided tour of the ship’s galley. Upon return to
Washington, she filed a negligence lawsuit against Carnival
in U.S. district court in Washington, seeking damages. Carnival filed a motion for summary judgment contending that
the suit could be brought only in a court located in the state
of Florida. The District Court granted Carnival’s motion.
The court of appeals reversed, holding that Mrs. Shute could
sue Carnival in Washington. Carnival appealed to the U.S.
Supreme Court. Armor Plate 3000, a synthetic laminated material used to
make bowling lanes. Armor Plate 3000 competed with
wooden lanes produced by AMF. Brunswick’s advertisements
claimed that bowling centers could save up to $500 per lane
per year in maintenance and repair costs if they would switch
to Armor Plate 3000 from wooden lanes. AMF disputed this
claim and requested arbitration.
1. Is the arbitration agreement enforceable? 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804,
Web 1984 U.S. Lexis 41 Supreme Court of the United States The National Enquirer, Inc., a Florida corporation, has its
principal place of business in Florida. It publishes the
National Enquirer, a national weekly newspaper with a circulation of more than 5 million copies. About 600,000 copies,
almost twice the level of the next highest state, are sold in
California. The Enquirer published an article about Shirley
Jones, an entertainer. Jones, a California resident, filed a lawsuit in California state court against the Enquirer and its
president, a resident of Florida. The suit sought damages for
alleged defamation, invasion of privacy, and intentional infliction of emotional distress.
1. Are the defendants subject to suit in California? M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 237 C H A P T E R 6 The Court System and Alternative Dispute Resolution Burnham v. Superior
Court of California 237 495 U.S. 604, 110 S.Ct. 2105, 109 LEd.2d 631,
Web 1990 U.S. Lexis 2700 Supreme Court of the United States Dennis and Francis Burnham were married and lived in New
Jersey, where their two children were born. Ten years later
the Burnhams decided to separate. Mrs. Burnham, who intended to move to California, was to have custody of the
children. Mr. Burnham agreed to file for divorce on grounds
of “irreconcilable differences.” Mr. Burnham threatened to
file for divorce in New Jersey on grounds of “desertion.”
After unsuccessfully demanding that Mr. Burnham adhere to
the prior agreement, Mrs. Burnham brought suit for divorce
in California state court. One month later Mr. Burnham
visited California on a business trip. He then visited his
children in the San Francisco Bay area, where his wife resided. He took the older child to San Francisco for the
weekend. Upon returning the child to Mrs. Burnham’s
home, he was served with a California court summons and a
copy of Mrs. Burnham’s divorce petition. He then returned
to New Jersey. Mr. Burnham made a special appearance in
the California court and moved to quash the service of
1. Did Mr. Burnham act ethically in trying to quash the
service of process? Did Mrs. Burnham act ethically in
having Mr. Burnham served on his visit to California? Is
the service of process good? WORKING WITH THE
LANGUAGE OF THE
COURT CASE Adler v. Duval County School Board
112 F.3d 1475, Web 1997 U.S. App. Lexis 10000
United States Court of Appeals for the Eleventh Circuit Read the following case, excerpted from the court of appeals opinion. Review and brief the case. In your brief, answer the following questions.
1. What is the doctrine of mootness?
2. What was the action the plaintiffs complained of?
3. When would the plaintiffs have had to file and
have their case heard for the court to rule on
their claim? Tjoflat, Circuit Judge
Appellants are four former high school students in the
Duval County, Florida, school system who brought
this action under 42 U.S.C. § 1983 (1994), alleging that
a Duval County school policy permitting studentinitiated prayer at high school graduation ceremonies
(the “policy”) violated their rights under the First and
On June 7, 1993, three of the appellants graduated from Mandarin, one of the schools in the Duval
County system. A fourth appellant graduated in June
1994. Because all four appellants have graduated, we
find that to the extent they seek declaratory and injunctive relief, their case is moot. The only justiciable controversy in this case is the appellants’ claim
for money damages. We affirm the District Court’s
grant of summary judgment for the appellees on this
claim, but we do so without reviewing the merits of 4. How would bringing the cases as a class action
have allowed the court to hear the case under the
Case or Controversy requirement?
5. How does this case differ from the case of Lee v.
Weisman in Chapter 5? the District Court’s constitutional analysis. We begin
by noting that appellants’ claims for declaratory
and injunctive relief are moot. All appellants have
graduated, and none is threatened with harm from
possible prayers in future Duval County graduation
ceremonies. . . .
Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of certain
“Cases” and “Controversies.”. . . The doctrine of
mootness is derived from this limitation because an
action that is moot cannot be characterized as an active
case or controversy. “[A] case is moot when the issues
presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Any decision on the merits of a moot case would be an impermissible advisory opinion.
To apply the doctrine of mootness to this case, we
must distinguish the appellants’ claims for equitable relief from their claim for money damages. . . .
(continued) M06_GOLD0000_00_SE_CH06.QXD 238 12/5/09 1:03 AM Page 238 PA R T I I Introduction to Law Equitable relief is a prospective remedy, intended
to prevent future injuries. In contrast, a claim for
money damages looks back in time and is intended to
redress a past injury. The plaintiff requests money
damages to redress injuries caused by the defendant’s
past conduct and seeks equitable relief to prevent the
defendant’s future conduct from causing future injury.
When the threat of future harm dissipates, the plaintiff’s claims for equitable relief become moot because
the plaintiff no longer needs protection from future injury. This is precisely what happened in this case.
Appellants argue that, despite their graduation
from high school, their claims for declaratory and injunctive relief are not moot because the original injury
is “capable of repetition, yet evading review.” This
exception to the mootness doctrine is narrow. In the
absence of a class action, the “capable of repetition, yet
evading review” doctrine is limited to the situation
where two elements combine: (1) the challenged action
[is] in its duration too short to be fully litigated prior to
its cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be
subjected to the same action again. This case does not
satisfy the second element. Because the complaining
students have graduated from high school, there is no
reasonable expectation that they will be subjected to
the same injury again.
Having disposed of the appellants’ claims for equitable relief, we are left with their claim for money
damages, which we now address. Because the appellants’ claim for money damages does not depend on
any threat of future harm, this claim remains a live controversy. We accordingly turn our focus to the basis for
the appellants’ claim for damages. The complaint
alleges that a “senior class chaplain” delivered a prayer
at the June 7, 1993, Mandarin graduation ceremony at
which appellants Adler, Jaffa, and Zion graduated. The
only past injury for which the appellants could seek
redress is being subjected to this prayer at their graduation ceremony. To prove that the appellees caused this
injury, the appellants alleged in their complaint that
the prayer was “a direct consequence” of the school’s
policy. In their answer, the appellees admitted that a
student said the prayer, but denied that the prayer was
a consequence of the policy.
The only issue the appellants raise on appeal is
whether the District Court erred in holding the policy
constitutional. While the constitutionality of the policy
may have been central to the now moot issue of whether
equitable relief is warranted to prevent the policy from
being implemented at future graduations, it does not
dispose of the issue of whether the appellants should be awarded money damages for being subjected to the
prayer at their graduation. In other words, any claim for
damages does not depend on the constitutionality of the
policy in the abstract or as applied in other Duval
Even if the policy is unconstitutional, the defendants might not be liable if, for example, they did not
implement the policy at the ceremony in question or if
the prayer would have been delivered without the policy. On the other hand, if the District Court was correct in finding the policy constitutional, defendant
Epting, Mandarin’s principal, might nonetheless be liable if he implemented the policy in an unconstitutional manner.
The constitutionality of the policy, therefore, has
little independent relevance to the appellants’ damages claim. Whether they are entitled to damages
depends entirely on the circumstances under which
the prayer was delivered at their graduation ceremony.
In order to prevail, the appellants must have some theory connecting the individual defendants to the
prayer. For these reasons, even if we were to find fault
with the district court’s constitutional analysis of
the policy, this conclusion by itself would not answer
the question of whether the court erred in granting the
appellees summary judgment on the damages claim.
The appellants offer no other grounds in their briefs
for finding trial court error.
After considering the appellants’ briefs and oral
argument, we are convinced that they either fail to
understand the basis for their damages claim or do
not seriously seek damages. They have offered us no
connection between the prayer and their damages
claim; their briefs offer no indication as to any of the
circumstances surrounding the Mandarin graduation
prayer. They failed to argue that the prayer was a
“direct consequence” of the policy, or any other theory
connecting the defendants’ actions to the Mandarin
prayer. Their briefs do not even include the allegation
made in their complaint that a prayer was delivered at
For all these reasons, we hold that they have
waived their damages claim on appeal. We therefore
affirm the District Court’s order to the extent it denied
the appellants’ motion for summary judgment and
granted the appellees’ motions for summary judgment
on the appellants’ damages claim. For the foregoing
reasons, we vacate the district court’s order granting
the appellees summary judgment on the appellants’
claims for declaratory and injunctive relief and remand
the case with instructions that the District Court dismiss those claims. We affirm the District Court’s denial M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 239 C H A P T E R 6 The Court System and Alternative Dispute Resolution of the appellants’ motion for summary judgment and
its grant of summary judgment for the appellees on the
appellants’ damages claim. It is so ordered. UPDATE TO CASE
After a rehearing en banc the court, upon a majority
vote of the judges of the court, issued a subsequent
opinion on June 3, 1999, and on March 15, 2000, on
further proceeding the Court ruled that the policy
on prayer did not violate the Establishment Clause.
On June 19, 2000, the Supreme Court rendered a 239 decision in Santa Fe Independent School District v. Doe,
530 U.S. 290, which invalidated a Texas school board’s
policy permitting students to vote on a prayer subject
to officials’ approval at home football games. The
Duval Court proceeded to rehear the case based on
the Santa Fe decision and ruled again in favor of the
Duval School Board because the prayer there was not
subject to official approval or input [Adler v. Duval
County School Board, 250 F.3d 1330, 2001 U.S. App.
Lexis 8880 (United States Court of Appeals for the
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This note was uploaded on 11/15/2011 for the course LEGAL PA101 taught by Professor Pamelabasmajian during the Winter '11 term at Kaplan University.
- Winter '11