ReinforcementLEGAL TERMINOLOGYAlternative dispute resolution (ADR)222American Arbitration Association(AAA)223Arbitration223Arbitration clauses223Arbitrator223Associate justices215Attachment jurisdiction221Award225Binding arbitration225Change of venue221Chief justice215Choice-of-law clause222Circuit211Conciliation226Conciliator226Concurrent jurisdiction219Concurring opinion218Counteroffer228Court of Appeals for the FederalCircuit213Courts of record209Dissenting opinion218Diversity of citizenship219Exclusive jurisdiction219Federal Arbitration Act (FAA)223Federal court system210Federal question219Forum-selection clause222General-jurisdiction trial court209Highest state court210In personamjurisdiction220In remjurisdiction221Intermediate appellate court210Judicial referee228Jurisdiction209Limited-jurisdiction trial courts209M06_GOLD0000_00_SE_CH06.QXD 12/5/09 1:03 AM Page 229
230PART II Introduction to LawLitigation208Long-arm statute221Majority decision218Mediation225Mediator225Minitrial227Negotiation222Neutrals224Non-binding arbitration225Online arbitration228Online mediation228Personal jurisdiction220Petition for certiorari215Plurality decision218Quasi in remjurisdiction221Service of process220Settlement agreement223Small-claims court209Special federal courts210Standing to sue220State court system208Subject-matter jurisdiction218Submission agreement223Supreme Court of the UnitedStates214Tie decision218Unanimous decision218Uniform Arbitration Act223U.S. Bankruptcy Court210U.S. Courts of Appeals211U.S. Court of Federal Claims210U.S. Court of InternationalTrade210U.S. District Courts211U.S. Supreme Court215U.S. Tax Court210Venue221Writ of certiorari215SUMMARY OF KEYCONCEPTSState Court SystemsLimited-Jurisdiction TrialCourtThis state court hears matters of a specialized or limited nature (e.g., misdemeanorcriminal matters, traffic tickets, civil matters under a certain dollar amount). Many stateshave 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 CourtThis is a state court that hears cases of a general nature that are not within the jurisdictionof limited-jurisdiction trial courts.Intermediate AppellateCourtThis state court hears appeals from state trial courts. The appellate court reviews the trialcourt record in making its decision; no new evidence is introduced at this level.Highest State CourtEach state has a highest court in its court system. This court hears appeals from appellatecourts and, where appropriate, trial courts. This court reviews the record in making itsdecision; no new evidence is introduced at this level. Most states call this court the supreme court.Federal Court SystemSpecial Federal CourtsFederal 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 commercial disputes 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 230
CHAPTER 6 The Court System and Alternative Dispute Resolution 231 U.S. Courts of Appeals 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 precedent. 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 Subject-Matter 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 12/5/09 1:03 AM Page 231
232 PART II 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 (or Attachment Jurisdiction) A plaintiff who obtains a judgment against a defendant in one state may utilize the court 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 232
CHAPTER 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.
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