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PROFESSIONAL

PRACTICE 544
Spring Semester 2015
Michael J. Hanahan, Esq.
Partner
Schiff Hardin LLP
233 S. Wacker, Ste. 6600
Chicago, IL 60606
312-258-5701
mhanahan@schiffhardin.com

PROFESSIONAL
PRACTICE 544
January 12, 2015
Introduction, Legal Foundation,
Dispute Resolution To Court or Not?

Michael J. Hanahan, Esq.


Schiff Hardin LLP
233 S. Wacker, Ste. 6600
Chicago, IL 60606
312-258-5701
mhanahan@schiffhardin.com
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How This Class Works


First half (pre mid-term): Theory
Second half (post mid-term): Practice
Grading based on mid-term and final
exams

Both multiple choice, open book/notes.


No homework.
Just lecture/discussion and two AIA documents.
Class participation can boost borderline grades.
Opportunity to raise grades of C or below by writing paper.
Attendance is important, but lectures will be posted on my
website.
Schiff Hardin LLP scholarship for best performance.
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LEVELS OF GOVERNMENT
National (not Federal)
State
Municipal

City
Village
Can be separate taxing body (e.g., MPEA)

FUNCTIONS OF LAW

Criminal Law
Protects the state
Protects people
Jury of your peers

Civil Law

Balancing interests of groups/individuals


Ensuring predictability
Statutes and common law
Uses the jury system as well

HIERARCHY OF LAWS
1.
2.
3.
4.
5.
6.
7.

Constitution
Statute
Executive Order
Administrative Regulation
Common Law (court-made)
Contracts and Agreements
Custom and Practice

CLAIMS

WHAT IS A CLAIM?
Because of claims, we need laws.
Civil and criminal.
This class mainly explores civil claims.
Claims against design professionals.
Claims against owners.
Claims against contractors.

What is a claim and how is it resolved?

ELEMENTS OF A CLAIM
Is the claim based in tort or contract?
Existence of a duty
By law, contract, or otherwise.

Breach of that duty


The failure to perform.
Performing in a manner not consistent with the
standard of care.

Causation
Damages
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DISPUTE RESOLUTION
PROCEDURES
Binding:

Non-Binding

Litigation/Lawsuit (traditional
method)
Expensive, time consuming.

Negotiation (always
encouraged).
Limited to skill and attitude
of the parties.

Arbitration (only by
agreement)
Can be, but not always
cheaper and faster than
litigation.

Mediation (only by
agreement)
Often faster and cheaper
than other methods.

ANATOMY OF A LAWSUIT
Summons and Complaint (Plaintiff)
2. Defendants initial responses
1.

Motion to Dismiss
Answer
Affirmative Defenses
Counterclaim

ANATOMY OF A LAWSUIT (Contd.)


3.

Pre-trial Discovery

Production of Documents
Interrogatories
Depositions
Subpoenas to third parties

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ANATOMY OF A LAWSUIT (Contd.)


4.

Trial (Jury or Bench)

5.

Jury selection
Opening statements
Evidence and witnesses
Closing arguments
Jury instructions
Verdict/judgment

Appeal

Written briefs on limited issues


Oral arguments
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ARBITRATION

HOW AN ARBITRATION WORKS


1. Demand for Arbitration (Claimant)
2. Arbitrator Selection Process

By agreement, by define rules


How many panel members

3. Respondents Answering Statement (and

Counter-Demand)

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HOW AN ARBITRATION WORKS


(Contd.)
4.

Limited Discovery

Mutual document exchange.


Interrogatories typically not permitted or very
limited
Depositions also usually limited or prohibited.
Subpoenas to third parties for documents or
attendance at hearing only.

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HOW AN ARBITRATION WORKS


(Contd.)
5.

Evidentiary Hearing

6.

Opening statements
Witnesses, but no evidentiary exclusions
Arbitrator may ask questions
Closing arguments and/or written briefs
Award

No right of appeal

Arbitrators can make errors of law or fact


without being overturned
Fraud or overt bias can be appealed
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MEDIATION

MEDIATION PROCEDURES
Generally Two Types

1.

It Is A Business Resolution
The Mediation Process

2.
3.

4.

Evaluative
Non-Evaluative

Individual Meetings/Written Submittals to


Educate Mediator
Joint/Confrontational Session
Separation of Parties and Shuttle Diplomacy

Mediation may be Interrupted or Continued


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Questions