Litigation and Alternatives for Settling Civil Disputes CHAPTER FIVE

5 | 2 Copyright © Houghton Mifflin Company. All rights reserved. Civil Lawsuit Steps A civil lawsuit goes through the following steps: –Plaintiff meets with attorney to determine merits of case –A summons and complaint prepared by the plaintiff’s attorney –Answer: by the defendant –Pretrial proceedings: the process of filing motions, conducting discovery, and the pretrial conference –Trial –Judgment –Appeal

5 | 3 Copyright © Houghton Mifflin Company. All rights reserved. Complaint and Response A complaint includes: – Names of the parties being sued – The reason for bringing the lawsuit – The remedy the plaintiff to the lawsuit is seeking Once the complaint is served the defendant can answer the complaint with a denial of liability. – If the defendant fails to answer the complaint, he/she can lose the case by default. Taken together the complaint and answer are known as the “pleadings.”

5 | 4 Copyright © Houghton Mifflin Company. All rights reserved. Pretrial Proceedings Motions – can be filed by plaintiff or defendant to ask the judge to rule on a point of law Discovery – steps taken to learn in detail the nature of the evidence of the case; helps to prevent any surprises in the case Pretrial Conference: – Last attempt to settle the case before trial. – If the case cannot be settled, then the judge and the parties plan the course of the trial.

5 | 5 Copyright © Houghton Mifflin Company. All rights reserved. Trial If the parties do not agree to a trial by the judge alone, they will have a jury trial. Step 1 – The jury is selected through a process called voir dire; potential jurors are questioned to determine whether they are impartial or would be biased in the case. –The parties can dismiss any number of prospective jurors with good cause. –The parties can dismiss a limited number of jurors for any reason.

5 | 6 Copyright © Houghton Mifflin Company. All rights reserved. Trial (continued) Step 2 – The attorneys for each side make their opening statements to the jury. –Opening statements give the judge and jury an overview of what evidence (legal proof) each party plans to present. Step 3 – After opening statements, the plaintiff presents his or her evidence through testimony of witnesses and exhibits: –The plaintiff’s questioning of his or her witnesses is known as direct examination. –The defendant’s attorney can cross-examine the plaintiff’s witnesses.

5 | 7 Copyright © Houghton Mifflin Company. All rights reserved. Trial (continued) Step 4 – The defendant presents his or her evidence through testimony of witnesses and exhibits: –The defendant’s questioning of his or her witnesses is known as direct examination. –The plaintiff’s attorney can cross-examine the defendant’s witnesses. Step 5 – Both parties present their closing arguments to the judge and jury. –The attorneys will argue to the jury why it should decide the case in their favor. (To win the case, the plaintiff must prove the case “by a preponderance of the evidence.”)

5 | 8 Copyright © Houghton Mifflin Company. All rights reserved. Trial (continued) Step 6 – After closing arguments, the judge charges the jury, which means the judge tells the jury what the law is. The judge will tell the jury to decide the case using the preponderance of the evidence standard. –Preponderance of the evidence means the jury must decide who presented the more convincing case.

5 | 9 Copyright © Houghton Mifflin Company. All rights reserved. Trial (continued) After the judge has charged the jury, the jury retires to the jury room and deliberates all the evidence that was presented to it. Once the jury has decided the case, it returns to the courtroom and its verdict is announced in open court. After the verdict is announced, judgment is entered in the case; this is the official decision of the case entered in the court record.

5 | 10 Copyright © Houghton Mifflin Company. All rights reserved. Trial (continued) Posttrial – The party losing the case has certain options: –The party losing the case can request that the judge grant a new trial. –The party losing the case can appeal the decision. –In either case, the party must be able to show a critical legal error occurred that changed the outcome of the case.

5 | 11 Copyright © Houghton Mifflin Company. All rights reserved. Alternative Dispute Resolution Going to trial with a case is expensive, time consuming, stressful, and aggravating. Thus, alternative methods of dispute resolution are growing. Those alternative methods include: –Arbitration –Mediation –Minitrial –Summary Jury Trial –Private Trial –Informal Settlement Between the Parties

5 | 12 Copyright © Houghton Mifflin Company. All rights reserved. Alternative Dispute Resolution Arbitration – a complete substitute for the jury trial process –In the arbitration process, the parties submit their dispute to an impartial arbitrator or an impartial arbitration panel who will render a binding decision in the case. –This allows the parties to avoid the expense associated with pursuing a case through the courts. –Many businesses have added binding arbitration clauses to their contracts.

5 | 13 Copyright © Houghton Mifflin Company. All rights reserved. Alternative Dispute Resolution (continued) Mediation – requires parties involved in a dispute to sit down with an impartial third party (the mediator) and discuss ways to resolve the dispute. –The mediator assists the parties in communicating with each other and at times will recommend solutions to their problems. –The parties in this situation are seeking to find a compromise solution to their issue. Parties generally reserve the right to go to arbitration or litigate the dispute.

5 | 14 Copyright © Houghton Mifflin Company. All rights reserved. Alternative Dispute Resolution (continued) Minitrial – a process where the plaintiff and defendant present their cases to a neutral adviser. After the presentation, the plaintiff and defendant, having heard both sides, attempt to settle the case. If the attempt to settle the case doesn’t work the neutral adviser renders a nonbinding opinion on how he/she believes the case would be decided in court.

5 | 15 Copyright © Houghton Mifflin Company. All rights reserved. Alternative Dispute Resolution (continued) Summary Jury Trial –After a lawsuit has been started, but before trial, opposing lawyers present their cases to a sample jury. –The lawyers then can converse with the jury and ask how they reached their decision in the case. –Gives each side the opportunity to evaluate their positions and may help them reach a settlement. Private Trial – the parties hire a retired judge with the power to enter a legally binding agreement. –State legislatures have given the power to these judges to decide cases.

5 | 16 Copyright © Houghton Mifflin Company. All rights reserved. Alternative Dispute Resolution (continued) Negotiation –The attempt to get the parties to sit down and discuss facts of the situation and try to find mutual solution. –Be careful on leaping into litigation; it is a time-consuming and expensive process. Your resources may be better used in places other than legal fees. Litigation should be the last resort. Each of these alternative dispute resolution techniques is an attempt to decide or settle the case without having a jury trial.

5 | 17 Copyright © Houghton Mifflin Company. All rights reserved. Online Dispute Resolution As the use of the Internet and cyberspace grows so too does the idea using the virtual world to resolve disputes. The cost savings offered would benefit the litigants. Although the resolution of complex issues presents challenges the medium opens several opportunities.