1. Chapter 3 Trials and Resolving Disputes

2. Chapter Issues Basic Trial ProceduresBasic Trial Procedures Procedures and Processes of Litigating a DisputeProcedures and Processes of Litigating a Dispute Remedies in Civil LitigationRemedies in Civil Litigation Appellate StageAppellate Stage Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR) –Arbitration –Negotiation-Settlement –Mediation –Other forms of ADR

3. The Judicial System The court system is adversarial in natureThe court system is adversarial in nature Parties have the responsibility for bringing a lawsuit, shaping issues and presenting evidenceParties have the responsibility for bringing a lawsuit, shaping issues and presenting evidence Court applies legal rules to facts presentedCourt applies legal rules to facts presented Trials are often costly and uncertainTrials are often costly and uncertain Juries tend to be less sympathetic to businessesJuries tend to be less sympathetic to businesses

4. Basic Trial Procedures Pleading Stage Discovery Stage Pretrial Stage Trial Stage Appellate Stage Enforcement Stage See Exhibit 3.2

5. The Pleadings Stage PLAINTIFF FILES: Complaint Notice of lawsuit given by service of process by summons DEFENDANT FILES: Responses to Complaint –Motion to Dismiss (Demurrer) –Answer (may include affirmative defenses) –Counterclaim

6. Discovery Stage (Legal Tools to Obtain Evidence) Discovery Stage (Legal Tools to Obtain Evidence) Purposes toPurposes to –1) preserve evidence, –2) limit element of surprise, –3) encourage settlement

7. DISCOVERY TOOLS Depositions of parties and witnesses (including experts)Depositions of parties and witnesses (including experts) Interrogatories of the partiesInterrogatories of the parties Use of Expert WitnessesUse of Expert Witnesses Requests for AdmissionsRequests for Admissions Orders of Production of DocumentsOrders of Production of Documents Physical/Mental ExaminationsPhysical/Mental Examinations

8. Pretrial Stage Summary Judgment—either party may requestSummary Judgment—either party may request Pretrial Conference—either party may requestPretrial Conference—either party may request –Usually attorneys and judge attend –Simplify issues –Plan course of the trial –Judges’ often encourage parties to reach out-of- court settlement

9. Jury Selection Jury Selection 6 th and 7 th Amendments gives right to a jury in certain cases6 th and 7 th Amendments gives right to a jury in certain cases If no use of jury, judge becomes trier of factIf no use of jury, judge becomes trier of fact Selection of jury involves voir direSelection of jury involves voir dire Attorneys allowed limited number of challenges to reject prospective jurors without stating reasonAttorneys allowed limited number of challenges to reject prospective jurors without stating reason Usually 12 persons on jury panelUsually 12 persons on jury panel Some states have fewer—such as 6 jurorsSome states have fewer—such as 6 jurors

10. Trial Stage Opening Statements by attorneysOpening Statements by attorneys Presentation of Direct TestimonyPresentation of Direct Testimony Closing argumentsClosing arguments Instructions to Jury (also called charges)Instructions to Jury (also called charges) Verdict by jury. Judgment may be set aside for jury misconduct.Verdict by jury. Judgment may be set aside for jury misconduct. Motions For A VerdictMotions For A Verdict –Motion For A Directed Verdict/Motion For Judgment As A Matter of Law Cases have been presented, but before going to jury, either party requests entering judgment in its favorCases have been presented, but before going to jury, either party requests entering judgment in its favor –Motion for Judgment As A Matter of Law/Motion For Judgment Notwithstanding the Verdict (N.O.V.)

11. Remedies in Civil Litigation (See Exhibit 3.4) Equitable remediesEquitable remedies –Specific performance –Injunction PermanentPermanent TemporaryTemporary Monetary damagesMonetary damages –Compensatory –Punitive or exemplary –Nominal

12. Appellate Stage (Appeal Based on Error of Law) Arguments before the courtArguments before the court –Written Briefs –Oral Arguments Decisions by the courtDecisions by the court –Majority opinion –Concurring opinions –Dissenting opinions Outcomes of decisionsOutcomes of decisions –Affirmed –Modified –Reversed –Remanded

13. Enforcement Stage If no further appeal is available, judgment becomes finalIf no further appeal is available, judgment becomes final It is res judicataIt is res judicata Enforcement of judgment is through writ of executionEnforcement of judgment is through writ of execution Court orders an official (i.e. sheriff) to satisfy judgment through an act (such as seizure of property, garnishment, etc.)Court orders an official (i.e. sheriff) to satisfy judgment through an act (such as seizure of property, garnishment, etc.)

14. ARBITRATION Cheaper, faster, and often considered more fair Neutral 3 rd party – usually an expert Arbitrator’s decision is binding Arbitration decision is final and matter usually cannot be litigated again or appealed Uniform Arbitration Act (UAA) upholds the integrity of this process

15. The Arbitration Process The Arbitration Process Decided at time of making the contract or after dispute arises Begins when party files a submission Parties agree on arbitrator(s) The hearing procedure –Closed door –Less evidentiary formality –Good faith cooperation required

16. Voluntary and Compulsory Arbitration Labor Contracts –Unions –Insurance contracts –Stockbrokers –Pro-baseball, football Public Sector Employment Police officers Firefighters Public school teachers

17. Negotiation Negotiation Least formal form of ADR Parties decide to settle matter between themselves Often use lawyers or representatives, though not required –Lawyers, etc. are agents of the parties of the dispute Negotiated settlement is usually a contract, which is enforceable, like other contracts, by the courts

18. Mediation 3rd neutral person (mediator) assists the parties of the dispute Parties mutually decide on a resolution Mediator makes suggestions Mediator’s suggestions are NOT BINDING on the parties Parties may go to trial after this ADR Mediation often helps to maintain the relationship between the parties