Presentation on theme: "Alternative Dispute Resolution ◙ Negotiation Parties make offers and counter-offers for settlements. May be face-to-face or through lawyers. ◙ Mediation."— Presentation transcript:
Alternative Dispute Resolution ◙ Negotiation Parties make offers and counter-offers for settlements. May be face-to-face or through lawyers. ◙ Mediation Neutral person (mediator) attempts to get parties to reach a voluntary settlement. Mediation may be ordered by a judge. Mediator does not render a decision. ◙ Arbitration Neutral person (arbitrator) is involved. Arbitrator does render a binding decision. Arbitration may be mandatory, if chosen in advance as the method for dispute resolution.
Three Areas of Law ◙ Alternative Dispute Resolution ◙ Litigation/Court Systems ◙ Civil Lawsuits
Litigation vs. Alternative Dispute Resolution ◙ Litigation refers to lawsuits; the process of filing claims in court, and ultimately going to trial. ◙ Alternative Dispute Resolution is any other formal or informal process for settling disputes without going to trial.
Alternative Dispute Resolution (most common forms) ◙ Negotiation Parties make offers and counter-offers for settlements. May be face-to-face or through lawyers. ◙ Mediation Neutral person (mediator) attempts to get parties to reach a voluntary settlement. Mediation may be ordered by a judge. Mediator does not render a decision. ◙ Arbitration Neutral person (arbitrator) is involved. Arbitrator does render a binding decision. Arbitration may be mandatory, if chosen in advance as the method for dispute resolution.
Alternative Dispute Resolution (less common forms) ◙ Mini-trial Parties stage a short trial to a panel of three “judges.” Two of the “judges” are executives of the disputing corporations; the third is a neutral party. Lawyers present shortened cases; “judges” discuss settlement. ◙ Summary Jury Trial Initiated and supervised by a court. Each side summarizes to a mock jury what witnesses would say if called before a real jury. Jury deliberates and tries to reach consensus, but may vote individually if necessary. Allows each side to see how a trial might turn out.
State Court System Trial Courts of General Jurisdiction Trial Courts of Limited (or Specific) Jurisdiction State Supreme Court (Highest Appeals Court) Lower Appeals Courts General Civil Division General Criminal Division Small Claims Division Municipal Division Juvenile Division Probate Division Land Division Domestic Relations Division One judge; may have jury Three judges; never a jury Usually 7 Justices; may refuse to hear a case; final authority Click on any box below for a definition of the jurisdiction of that trial court.
Federal Courts -- Two kinds of civil lawsuits permitted ◙ Federal Question Cases A claim based on the United States Constitution, a federal statute, or a federal treaty ◙ Diversity Cases When the plaintiff and defendant are citizens of two different states, AND the amount in dispute is greater than $75,000
The Federal Court System Primary Trial Court Trial Courts of Limited (Specific) Jurisdiction United States Supreme Court ( Highest Appeals Court) Lower Appeals Courts U.S. District Courts U.S. Bankruptcy Courts U.S. Tax Courts Various Federal Agencies U.S. Court of International Trade U.S. Claims Court U.S. Patent & Trademark Office Trial Courts of Limited (Specific) Jurisdiction Three judges hear each case, brought up from the District Courts. Nine Justices; appointed for life; may refuse to hear a case; final authority Click on any box below for a definition of the jurisdiction of that trial court. U.S. Courts of Appeals (12 Circuits) U.S. Court of Appeals for the Federal Circuit Hears appeals from specialized trial courts. * Click here to see a map of the 12 Circuits of the U.S. Courts of Appeals.
Steps in Beginning Litigation ◙ Pleadings: Papers that begin a lawsuit 1. Complaint -- Short, plain statement of the allegations and the legal claims. This is “served” or delivered with a summons. 2. Answer -- A brief reply to the allegations. 3. Counter-Claim -- Sometimes the accused party will initiate a second suit in response to the first. 4. Reply -- A brief reply to the counter-claim.
Possible Variations on Pleadings ◙ Counter-claim If the accused party thinks the accusing party has contributed to the problem or has wronged them, they may file a second suit, in reverse of the first. ◙ Class Actions If the wrong in question has affected a large number of persons, the suit may become a class-action suit, with the plaintiff representing an entire class of plaintiffs. In 2005, Congress passed a statute to force large, multi- state class actions out of state courts into federal. ◙ Judgment on the Pleadings Either party can ask the court for a judgment based on the initial complaint and answer, but few cases are dismissed at this point.
Discovery -- next step after pleadings ◙ Interrogatories -- written questions that the other party must answer, under oath ◙ Depositions -- interview (under oath) of other party or potential witnesses; done by opposing lawyer ◙ Production of Evidence -- each side may request to see the other side’s evidence ◙ Physical or Mental Exam – one party may request the court to order an examination of the other party if relevant ◙ Requests for Admission -- each side may request that undisputed facts be admitted or denied, to avoid wasting time on them Discovery allows both sides to uncover evidence, encouraging a settlement without trial or ensuring few surprises during a trial.
Other Steps Before Trial ◙ Summary Judgment -- a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side. ◙ Final Preparation -- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.
Beginning a Trial ◙ Jury Selection: Process called voir dire 1. Questioning -- Each potential juror is questioned, to uncover biases. If both sides agree, they may waive their right to a jury. 2. Challenges for Cause -- Each side can claim any juror shows significant bias. 3. Peremptory Challenges -- Each lawyer can dismiss a limited number of jurors without stating a reason. 4. Jury Chosen -- 12 jurors and 2 alternates
Procedural Rules for a Trial ◙ Burden of Proof The plaintiff must convince the jury that its version of the case is correct. In a civil case, the proof needs to be by a preponderance of evidence (meaning at least slightly more likely to be true). In a criminal case, the proof required is higher; it must be beyond a reasonable doubt. ◙ Rules of Evidence Lawyers are allowed to ask only questions that are relevant to the case.
The Plaintiff’s Case ◙ First, Opening Arguments This is a brief summary, given by each side, of the facts they hope to demonstrate. ◙ Plaintiff Calls Witnesses Questions to own witnesses is direct examination. Lawyer only asks questions with helpful answers. ◙ Defendant Questions Witnesses Questions to opposing witnesses is cross examination. Again, lawyer asks questions with helpful answers. ◙ Defendant Moves for Directed Verdict This is asking the judge to decide that the plaintiff has no case worth proceeding with.
The Defendant’s Case ◙ Opening Arguments Defendant’s opening arguments were presented earlier, before the plaintiff presented its case. ◙ Defendant Calls Witnesses Questions to own witnesses is direct examination. Lawyer only asks questions with helpful answers. ◙ Plaintiff Questions Witnesses Questions to opposing witnesses is cross examination. Again, lawyer asks questions with helpful answers. ◙ Closing Arguments Brief summary, by both sides, urging the jury to believe their side of the case.
◙ Jury Instructions The judge instructs the jury to evaluate the case solely on the facts of the evidence presented. If the case is influenced by a certain legal presumption, the judge will summarize that for the jury. ◙ Deliberation and Verdict The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks). Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required. After Both Sides Rest (Finish)
◙ Motions after the Verdict The loser might request a judgment n.o.v., asking the judge to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence. If the judgment n.o.v. is denied, the losing side may request a new trial, on the same claims. ◙ Appeal The recourse for the loser is to file an appeal, a request for a higher court to examine the facts. The appeals court may affirm the verdict, modify the award, reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict. ◙ Settlement At any point, either side may offer to settle the case, even between the verdict and the beginning of an appeal. The Trial is Over… or is it?
U.S. District Trial Court Primary trial courts in the federal system; the nation is divided into 96 districts (based on population), with one court per district. Go back to Federal Court System slide. Go to next definition. Skip rest of definitions; go back to slide show.
Bankruptcy Court Tax Court Court of International Trade Patent and Trademark Court These trial courts in the federal system hear cases appropriate to their names (tax cases in the tax court, etc.) Appeals from the Bankruptcy and Tax Courts are heard by the Court of Appeals in the appropriate circuit. Appeals from the Court of International Trade and the Patent & Trademark Court are heard by the Court of Appeals in the Federal Circuit. Go back to Federal Court System slide. Go to next definition. Skip rest of definitions; go back to slide show.
Various Federal Agencies Though not actually a part of the Judicial Branch of the Federal government, many Federal agencies have the power to create and enforce appropriate regulations. Go back to Federal Court System slide. Go to next definition. Skip rest of definitions; go back to slide show.
U.S. Claims Court Hears cases brought against the United States, typically on contract disputes. Go back to Federal Court System slide. Go to previous definition. Skip rest of definitions; go back to slide show.
Circuits in the Federal Court System Go back to Federal Court System slide. Go back to slide show. Puerto Rico is part of Circuit 1 Virgin Islands are part of Circuit 3 Northern Marianna Islands are part of Circuit 9 (along with Alaska and Hawaii.) D.C. Circuit Washington, D.C. Federal Circuit Washington, D.C. Source: Administrative Office of the United States Courts, January 1983 6 1 2 3 4 11 5 7 8 9 10