CLAW 301

02/09/2016

 FOLLOWING A CASE
 Pleadings & Pretrial
o Injury
o Consult w an attorney
 Statute of limitations(time limit to file a claim)
 Negotiations
o Pleadings
 Service of Progress(formally notifying D of lawsuit)
 Summons(notice requiring D to appear in court
answering compliant filed against them)
 If D fails to come to court in required amount of
time then  default judgment will occur in P’s
favor.
o Answer(D’s response to P’s compliant)
 Affirmative defense (doesn’t deny claim but brings new
facts up in their defense).
 Counterclaim (D sues P- must have actual cause to do
so. Cant just be because they sued them)
 Reply(D’s response P’s response to D’s
counterclaim)
o Motions(For example: Motion to strike, Motion to dismiss, etc)
o Discovery
 Depositions, admissions, interrogatories, medical
examinations, etc.
o Voir Dire (process of choosing jury)
 Attorneys can strike veniremen(potential jurors) for
cause(bias) an unlimited amount of times.
 Attorneys can strike for peremptory reasons (no
reason)  limited to 3 times in Kentucky.

cross. redirect. . and recross  Motion for direct verdict where D says that P hasn’t shown sufficient evidence and asks for direct verdict from judge. o Jury deliberates and comes to verdict  Unanimous in criminal cases  Non-unanimous to civil cases  No verdict judge declares a mistrial Post-trial o Motion for new trial o Motion for J nov (judgment not withstanding the verdict)  jury verdict was unreasonable and erroneous. (sometimes this happens) o Defendants evidence next: rebuttal & rejoinder o Closing arguments (once again P then D) o Judge instructs jury to uphold the law when coming to their verdict. Appeal o Either party can appeal o If judge makes an “reversible” error one that effected the outcome of the trial Enforcement o If D is ordered to pay P court may have to issue order to enforce judgment.    CAN NEVER strike due to race or gender. o Opening Statements: P then D goes o Rules of Evidence (P then D again) o Examination of witnesses and potential motions  Direct.

Harm 2.S. Constitution (or constitutions of the various states)  Statutory law – ones passed by Congress.o o o o o o Writ of execution (sheriff is to seize/sell D’s nonexempt property If they don’t pay P) 3 elements of standing to sue 1. Causation 3. Remedy Rules of evidence must be REVELANT & RELIABLE  No HEARSAY 3 tier model for the Federal Court System  U.S.S. District Courts (trial courts of general jurisdiction) & various courts of limited jurisdiction  U. State legislatures. Court of Appeals  SCOTUS 3 things on the sliding scale for subject matter jurisdiction: Cyberspace  substantial business contracted o jurisdiction is proper  some interaction through website o jurisdiction may/may not be proper  passive advertising o no jurisdiction Primary Sources of law  U. or local governing bodies .

if not settlement then they arbitrate BINDING . the mediator can make a legally binding decision  Court can enforce this.  Mediation: neutral (expert) 3rd party acts as a mediator (a gobetween) o Assists the parties to achieve mutual agreement.o o o o o o  Regulations by Administrative Agencies. both parties’ attorneys argue their case before the other party and a neutral expert o Neutral expert renders a non-binding opinion about how a court would likely decide the issues. does not create final decision  parties will make their own settlement Binding Mediation: this is a binding mediation where the parties agree in event they can’t make a decision. written Mediation  arbitration  Parties first attempt to settle through mediation. Assisted negotiation: assistance of 3rd party  Mini-Trial: private.  Parties attempt to work out their difference and reach a mutually acceptable settlement.  Requires contract.  Can be the best way to resolve differences. ex: FDA  Case law & Common law Doctrines A State Court System usually consists of:  Trial courts of general jurisdiction  Trial courts of limited jurisdiction  Appellate Courts (intermediate appellate courts)  The state’s highest court (often called Supreme Court) All ADR are private and not public Negotiation (simplest form of ADR) only parties of representatives involved.

arguments o Opening statements. Uniform Arbitration Act: States have adopted so they cannot dictate procedure or terms of arbitration Federal Arbitration Act of 1925 Policy that favors arbitration  Doesn’t establish a procedure to arbitrate bur enforces parties must agree on manner to resolve dispute Arbitration Process  Submission: the act of referring a dispute to an arbitrator o Parties must agree to refer Questions of fact and law to arbitrator. case-in-chief. can appeal in court. remedies. closing arguments o Arbitrator closes hearing . o o o o Advantages of Mediation o Parties can tailor the process to meet their needs o Private & not in public record o Can save time & maybe $$  Disadvantages of Mediation o Mediator charges fees o Place of mediation can be expensive o W no deadline a party may not have incentive to settle. o No appeal if dissatisfied Arbitration  More formal than other ADR’s. witnesses. evidence. (similar to a compliant) o Must be written and submitted in definite period of time  Hearing: trial-like presentation of issues. binding always unless stated in contract.

corruption. Choice-of-law: parties to the contract may choose the law of a specific state to govern the contract (agreed upon choice of law) . Constitution.S.       Award: final decision of arbitrator o Must be rendered within 30 days after close of hearing o Only requirements are that all issues are completely resolved Arbitrability o Issue for the court  Is this dispute one that can be decided through arbitration? Compulsory Arbitration Agreements o Employment Contracts o Auto Purchase Contracts o Stock brokerage Accounts Unconscionability an absence of meaningful choice with terms that unreasonably favor one party at the expense of other party o Substantive uncon: allocates risk in objectively unreasonable manner o Procedural uncon: requires oppression or surprise o Ex: Lhotka V. Conflicts of law: which law applies? Fed or State? o If FAA conflicts with state law  Fed wins: supremacy clause or commerce clause of U. National Expeditions Setting aside Arbitration award o Generally cannot be set aside o Arbitrator’s findings of fact and conclusions of law are final o Court may overturn if award violates a statue or public policy or for fraud.

 Faster than either arb.  Advantages  Lower cost than court order arb. As in litigation. Has no occurred  Party attempting to reject arb. o Court-related mediation  Courts may offer mediation rather than arb. Or litigation  Disadvantages  Either party can reject .  Most states impose the same rules of evidence in arb.  o SCOTUS has upheld such agreements Disadvantages of Arbitration o Expensive o No public record o Adhesion contracts (don’t benefit the customer) o No discovery The Court & ADR o Court-annexed arbitration  Not binding (not voluntary)  Can be rejected by a party who can then proceed to trial  Court hears case de novo  Court ignores the arbitration and tries the case as if arb. May have to pay the cost of arb.

over 200.   o Summary jury trials o Mock trial o Occurs before a judge & jury in abb form  Jury renders “verdict” but isn’t binding o Verdict guides as a preview for what could happen at real trial  This encourages a settlement ADR Services o American Arbitration Association (AAA)  Private arbitration services.000 claim a year o Better Business Bureau  Offers ADR programs o Online organizations  Online Dispute Resolutions(ODR)  Online negotiation & mediation services Internal dispute resolution o International Contracts: common clauses  Forum selection  Choice of law  Arbitration .