1. Chapter 3 Judicial, Alternative, and E-Dispute Resolution

2. Pretrial Litigation Process
Pleadings
Discovery
Settlement conference
Pretrial motions
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Pleadings
Complaint and summons
Plaintiff files a complaint
Lists parties to the lawsuit
Alleges facts and laws violated
Adds a prayer for relief
Court issues summons
Directs defendant to appear and answer
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Pleadings
Answer
Filed by the defendant
Admits or denies allegations
States affirmative defenses
If all allegations are admitted, a judgment is entered against the defendant
If no answer is filed, a default judgment is entered
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Pleadings
Cross-complaint
Filed by the defendant against the plaintiff to seek damages or other remedy
Reply
Filed by the plaintiff
Serves as answer to the cross-complaint
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Pleadings
Intervention
Other parties with an interest in the lawsuit become parties to the lawsuit
Consolidation
Several lawsuits stemming from the same situation filed against a common defendant
Court will consolidate the lawsuits if no undue prejudice exists
Reduces strain on court system
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Pleadings
Class action
Occurs when a group of plaintiffs collectively bring a lawsuit against a defendant
Must be certified by the appropriate federal or state court
Commonality of claims is essential
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8. Case 3.1: U.S. Supreme Court Class Action Lawsuit
Walmart Stores, Inc. v. Dukes
131 S.Ct. 2541, 180 L.Ed.2d 374, Web 2011 U.S. Lexis 4567 (2011)
Supreme Court of the United States
Issue
Is the certification of the class justified by law?
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Pleadings
Statute of limitations
Establishes the period during which a plaintiff must bring a lawsuit against a defendant
If a lawsuit is not filed within this time period, plaintiff loses the right to sue
Established for each type of lawsuit
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Discovery
Process of discovering facts about the case and witnesses before trial
Purposes
Preventing surprises during trial
Allowing parties to thoroughly prepare for trial
Preserving evidence
Saving court time
Promoting settlement of cases
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Discovery
The major forms of discovery are:
Deposition
Interrogatories
Production of documents
Physical and mental examination
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Pretrial Motions
A motion a party can make to try to dispose of all or part of a lawsuit prior to trial
Types
Motion for judgment on the pleadings
Motion for summary judgment
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13. Settlement Conference
Also known as pretrial hearing
Facilitates the settlement of a case without trial
Informal conference
Used to identify major trial issues and relevant factors
Most cases settle before trial
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Trial
7th Amendment guarantees the right to a jury trial in cases in federal court
Jury trial is held upon the request of either party
If both parties waive their right to a jury, the trial will be without a jury
The judge is the trier of fact in nonjury trials
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Phases of Trial
Jury selection
Opening statements
The plaintiff’s case
The defendant’s case
Rebuttal and rejoinder
Closing arguments
Jury instructions and deliberation
Verdict
Entry of judgment
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Appeal
An appeal can be filed once a final judgment is entered
In a civil case
Either party can appeal the trial court’s decision
In a criminal case
Only the defendant can appeal
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Appeal
Appellate court will:
Reverse lower court decisions for errors of law
Reverse finding of fact only if it is unsupported by any evidence
Not reverse a finding of fact made by a jury or judge
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18. Alternative Dispute Resolution (ADR)
Methods of resolving disputes other than litigation
Negotiation
Arbitration
Mediation
Mini-Trial
Fact-finding
Judicial Referee
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19. Alternative Dispute Resolution (ADR)
Negotiation
Parties engage in discussions to try to reach a voluntary settlement
May take place at any level of litigation
Parties make offers and counteroffers
A settlement-agreement is entered into
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20. Alternative Dispute Resolution (ADR)
Arbitration
Common in commercial and labor disputes
Parties choose neutral third party to hear evidence and testimony and decide the case
Arbitrator makes a decision and enters an award
Arbitration can be binding or non-binding
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21. Alternative Dispute Resolution (ADR)
Uniform Arbitration Act
Promotes the arbitration of disputes at the state level
Federal Arbitration Act
A federal statute that provides for the enforcement of most arbitration agreements
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22. Alternative Dispute Resolution (ADR)
Mediation
Parties choose a neutral third party to assist them
Settlement is reached through intermediation
Mediator is allowed to give opinions to either party
Mediator does not make judgment or issue award
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23. Alternative Dispute Resolution (ADR)
Mini trial
Voluntary private proceeding
Lawyers for each side present their cases to representatives of each party
A neutral third party can be hired
Parties get to see the strengths and weaknesses of their case
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24. Alternative Dispute Resolution (ADR)
Fact finding
A neutral fact-finder is employed to investigate the dispute
The fact-finder presents the findings to the parties
The information is used in negotiating a settlement
The fact-finder is not authorized to make a decision or an award
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25. Alternative Dispute Resolution (ADR)
Judicial referee
Court-appointed referee who conducts a private trial and renders a judgment
The decisions stand as judgments of the court
Parties reserve their right to appeal
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26. Case 3.2: U.S. Supreme Court Class Action Waiver
AT&T Mobility LLC v. Concepcion
131 S.Ct. 1740, 179 L.Ed.2d 742, Web 2011 U.S. Lexis 3367 (2011)
Supreme Court of the United States
Issue
Does the Federal Arbitration Act (FAA) preempt California’s law that outlaws class action waivers?
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27. E-Courts and E-Dispute Resolution
Used to settle legal disputes via the Internet
Allow online filing of pleadings, briefs, and documents
Evidence and documents can be scanned for storage
Scheduling and conferences with the judge are held via telephone conferences and
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