1. Chapter 6 Civil Litigation and Its Alternatives

2. Litigation v. Alternative Dispute Resolution o What is litigation? o Alternative approaches to litigation o Alternative Dispute Resolution (ADR) 2

3. 3 Search for Alternatives to Litigation o Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve. o There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.

4. 4 ADR o ADR describes any procedure or device for resolving disputes other than the traditional judicial process. o Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. o Most common: negotiation, mediation, arbitration.

5. 5 Negotiation and Mediation o Less than 10% of cases reach trial. o Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case. o Successful negotiation involves thorough preparation, from a position of strength.

6. 6 Assisted Negotiation o Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3 rd party ( e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement. o Expert evaluations. o Conciliation: 3 rd party assists in reconciling differences.

7. 7 Mediation o Involves a neutral 3 rd party (mediator). o Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.” o Advantages: few rules, customize process, parties control results (win-win). o Disadvantages: mediator fees, no sanctions or deadlines.

8. 8 Arbitration o Many labor contracts have binding arbitration clauses. o Settling of a dispute by a neutral 3 rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official. o More formal than negotiation or mediation – similar to trial

9. 9 Arbitration Process o Contracts include a binding arbitration clause or through a submission agreement. o Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award. o Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

10. 10 Setting Aside an Arbitration Award o Losing party may appeal the decision to a court. o Winning party may ask a court to enforce the award. o Court’s role is limited to determining whether a valid award exists o Facts and legal conclusions are usually final.

11. 11 Setting Aside an Award o Award result of fraud or corruption. o Arbitrator bias. o Arbitrator abuse of discretion. o Arbitrator exceeded powers.

12. 12 Disadvantages of Arbitration o Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence. o Arbitrators do not have to issue written opinions. o Generally, no discovery available.

13. 13 Introduction to a Civil Lawsuit o “Road to justice” in civil lawsuit can consume much time and money – may not conclude for several years due to delays, appeals, etc.; attorney’s fees and costs may be in 10’s of 1,000’s even in average case. o Cost/benefit analysis – probability of winning; expense vs. relief; value of early settlement. o Many procedures to follow before, during and after trial, such as filing deadlines, rules of evidence, motions, etc.; noncompliance with these procedures may result in monetary, evidence and/or terminating sanctions.

14. 14 Stages of Litigation o Informal Negotiations. o Pleadings. o Service of Process. o Defendant’s Response. o Discovery. o Pre-Trial. o Trial. o Post-Trial.

15. 15 Litigation- Pleadings 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

16. 16 Pleadings o Accident, breach of contract or other incident(s) – may be one event or series of events over days, weeks, months or years. o Party consults with attorney – initial client interview; review facts, documents, etc.; signing of retainer agreement; evaluate deadlines such as statute of limitations. o Informal investigation and/or settlement negotiations prior to lawsuit; note that investigation and negotiation can happen at any time during lawsuit. o Exhaust administrative remedies (will be applicable in cases vs. gov’t only) – can have quick deadlines. o Filing of complaint and summons issued – o complaint specifies parties o ultimate facts in support of causes of action (what happened?) and relief sought (prayer); o summons is pre-printed form identifying parties, court’s and plaintiff’s attorney’s contact information, and admonition to respond within certain time. o Sample complaint: Page 114

17. 17 Pleadings-Service of Process o Defendant served with Complaint and Summons. o Court acquires Personal Jurisdiction over Defendant (person or corporation). o Corporate Defendants are served via Registered Agent.

18. 18 Pleadings-Answer o The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint. o In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.

19. 19 Pleadings-Answer o Defendant’s Answer: o May state General Denial. o Move for Change of Venue. o Allege Affirmative Defenses. o Counter Claim against Plaintiff.

20. 20 Dismissal and Judgments Before Trial o Defendant can move the Court to dismiss the Action for various reasons, such as: o The Court lacks jurisdiction. o The Plaintiff has failed to make all of the allegations, in his Complaint, that the law requires (i.e., the plaintiff has failed to state a cause of action). o Court looks only at facts in Complaint o Known as Motion to Dismiss – Rule 12 o If Defendant fails to answer, a default judgment can be entered

21. Judgments Before Trial o Motions for Summary Judgment o Federal Rules of Civil Procedure 56 o Court considers additional evidence presented in documents other than pleadings, including depositions, answers to interrogatories, admissions and affidavits o If all documents show that o There is no genuine issue as to any material fact and o The moving party is entitled to a judgment as a matter of law o The court will grant the motion and enter judgment for the moving party 21

22. 22 Litigation- Discovery 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

23. 23 Discovery o Discovery is the process by which parties obtain information from the opposing party prior to trial. Various tools are used: o Depositions & Interrogatories. o Deposition: sworn testimony taken outside the courtroom o Interrogatories: written questions sent by one party that another party must answer in writing o Requests for Admissions. o Requests for Production of Documents and Objects.

24. 24 Litigation- Pre-Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

25. 25 Litigation-Pre-Trial o Mediation-Arbitration. o Settlement Conference o Disposition Without Trial: o Default Judgments. o Dismissals (With/Without Prejudice). o Summary Judgment. o Settlement. o Pre-Trial Orders (ex:TRO, In Limine ).

26. 26 Litigation- Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

27. 27 The Trial o Trial is fundamentally an evidence presentation and authentication procedure. o To prevail, Plaintiff must introduce a preponderance of competent, relevant evidence with respect to each disputed allegation in order to prove it.

28. 28 The Trial [2] o The Defendant will attempt to introduce a preponderance of competent evidence to disprove at least one of the disputed allegations. o Hearsay is inadmissible.

29. 29 The Trial [3] o Bench Trial (no jury). o Jury Selection process involves: o Voir Dire; o Peremptory Challenges; o Challenges to biased jurors; o Pick and Impanel the Jury; and o Selection of Alternate Jurors.

30. 30 The Trial [4] o Opening Statements (Plaintiff first). o Plaintiff’s Case--Evidence: o Witnesses- Direct examination vs. Cross X and Redirect o Admissibility of evidence decided by judge. Parties object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted into the trial.

31. 31 The Trial [5] o Plaintiff’s Case ( cont’d ). o Party may impeach the testimony or credibility of opposing witness by showing prior inconsistent statements and/or perjury. o Defendant’s Case is next. o Closing Arguments (Plaintiff first). o Jury Instructions, Deliberations and Verdict.

32. 32 The Trial [6] o Jury’s Verdict: o Criminal case--burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury. o Civil Cases—generally, burden of proof is by “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.

33. 33 Litigation- Post Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

34. 34 Post Trial o Judgment: Jury verdict is entered by the Clerk of Court. o A party may move for a New Trial. o A party may file a Motion for Judgment N.O.V.. o Sentencing (criminal).

35. 35 Post Trial-Appeal o A party may appeal not only the jury’s verdict but any legal issue, motion or court ruling during the trial. o The party filing the appeal (Appellant) files a brief that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on Appellant’s behalf. o Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.

36. 36 Post Trial-Enforcement o Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms. o Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.