1. The Paralegal Professional Chapter Six The Court System and Alternate Dispute Resolution

2. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 2 The Court System and Alternative Dispute Resolution This chapter focuses on the various court systems, the jurisdiction of courts to hear and decide cases, the litigation process, and alternative dispute resolution.

3. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 3 State Court Systems State systems include Limited-jurisdiction trial courts Limited by subject or amount in controversy May or may not be courts “of record” (with a transcript of the proceedings) General-jurisdiction trial courts Handle a variety of matters “of record” May be separate divisions for civil & criminal Hear evidence & testimony, render a decision

4. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 4 State Court Systems (cont.) Intermediate appellate courts (some states) Handle appeals of right from lower court decisions Cannot hear new evidence Determine only issues of law, not of fact Court of last resort: highest state court (frequently the state Supreme Court) Usually handles appeals from intermediate appellate court Final decision, unless a federal constitutional or statutory conflict arises

5. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 5 Federal Court System Special federal courts (limited jurisdiction) Tax Court Claims Court Court of International Trade Bankruptcy Court U.S. District Court Trial court 96 Districts (venue), with at least one in each state

6. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 6 Federal Court System (cont.) U.S. Courts of Appeals Intermediate appellate courts 13 Circuits (jurisdiction & venue) Hear appeals from District Courts (Circuits 1-12) or Special Federal Courts (13 th Cir.)

7. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 7 Supreme Court of the United States U.S. Supreme Court: Highest court of the federal system: Final appeal Final arbiter of Constitutional law Nine justices Grant certiorari to the few cases they choose to hear; if Court decides to hear the case, it will issue a writ of certiorari

8. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 8 Supreme Court of the United States (cont.) VOTING by the U.S. Supreme Court: Unanimous – all nine Justices join in a single decision Majority – less than unanimous, but an opinion of the court reflects the majority view Plurality – not precedent because no one theory reflected the view of the majority, although a majority agreed upon an outcome Tie – if there is a vacant spot, it is possible to have a tie vote, which neither decides the case nor sets precedent

9. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 9 Supreme Court of the United States (cont.) The opinion of the court is the reasoning behind the unanimous or majority decision, reported for use in future decisions A concurring opinion may be written by a justice who votes in the majority, but has arrived at the decision for different reasons A dissenting opinion may be written by a justice who voted in the minority, explaining his or her reason for not agreeing with the majority

10. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 10 Jurisdiction of Federal and State Courts A federal or state court must have subject-matter jurisdiction to hear a case. Article III, Section 2, of the U.S. Constitution sets forth the jurisdiction of federal courts. Federal courts have limited jurisdiction to hear cases involving federal questions and cases involving diversity of citizenship. State courts have jurisdiction to hear certain types of cases.

11. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 11 Jurisdiction of Federal and State Courts (cont.) Federal Court Jurisdiction: Federal Question: cases arising under the U.S. Constitution, treaties and federal statutes. 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. Amount must exceed $75,000.

12. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 12 Jurisdiction of Federal and State Courts (cont.) State Court Jurisdiction: jurisdiction to hear cases that federal courts do not have jurisdiction to hear. Exclusive jurisdiction (federal courts): federal crimes, antitrust, bankruptcy, patent and copyright, suits against the U.S. and admiralty cases. Concurrent jurisdiction: state courts may hear some cases heard by federal courts.

13. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 13 Personal Jurisdiction and Other Issues Standing: The plaintiff must have an interest or stake in the outcome of the suit There must be a real issue in controversy, not just a hypothetical one Trivial or frivolous suits will not be heard

14. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 14 Personal Jurisdiction and Other Issues (cont.) Subject-matter The court must be authorized to hear this type of suit (e.g., tax dispute in Tax Court) In personam The court has jurisdiction over a person who has filed a suit in that court, or over a defendant by service of process Physical or mail service within the bounds of the jurisdiction By publication Of a corporation “doing business” within the jurisdiction In rem The property in issue is within the jurisdiction Quasi in rem Party in one jurisdiction attaches property in another jurisdiction

15. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 15 Personal Jurisdiction and Other Issues (cont.) Long Arm Statutes: permit a state to obtain personal jurisdiction over an out-of-state defendant. Venue: A case must be heard by the court that has jurisdiction nearest where the incident occurred or where the parties reside. Forum Selection Clause: jurisdiction by contract Choice of Law Clause: which law to apply by contract

16. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 16 Alternative Dispute Resolution (ADR) Alternatives to litigation may best serve the client; usually saves time and money. Negotiation: parties try to reach a voluntary settlement to their dispute. Mediation: a neutral 3 rd party (mediator) assists the parties to reach a settlement. Non-binding. Conciliation: an interested 3 rd party assists the parties to reach a settlement. Mini trial: a short trial session Fact finding: parties hire fact-finder to investigate the dispute and report findings to their adversaries. Judicial Referee: retired judge or lawyer to conduct a private trial.

17. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 17 Alternative Dispute Resolution (ADR) (cont.) Arbitration: neutral 3 rd party hears and decides the dispute Parties agree to arbitration by contract stipulating any dispute arising out of the contract shall be arbitrated. Decision is binding. Submission to arbitration can be conducted post- dispute in the absence of a contract. Arbitration generally faster and less-expensive than litigation. Online arbitration is available also.

18. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 18 Alternative Dispute Resolution (ADR) (cont.) Arbitration agreements are enforceable and a party can be compelled to arbitrate under the FAA The UAA provides for court-annexed arbitration in state court systems, and outlines the process Court-ordered arbitration is generally not binding (the parties did not agree to be bound), but frequently leads to settlement

19. The Paralegal Professional, 3e Goldman and Cheeseman © 2011, 2008, 2003, Pearson Higher Education, Upper Saddle River, NJ 07458. All Rights Reserved. 19 Alternative Dispute Resolution (ADR) (cont.) Many organizations provide support services for ADR The American Arbitration Association is the world’s leading provider of arbitration and ADR services. Help locate qualified neutral decision-makers or mediators Help arrange times, locations Can help prepare the decision & award, mediation agreement or judgment entry