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Business Law
Lecture Topic: Litigation
“The first thing we do, let’s kill all
the lawyers.”
― Shakespeare’s Henry VI, Part II

“Why does a hearse horse snicker,

hauling a lawyer away?”
― Carl Sandburg
 Types of Legal Systems
–Civil: from continental Europe, based
on statutes
–Common Law: from England based on
statutes and case law; stare decisis
 Civil (Code) Law System
• Historical tradition:
– Code of Hammurabi (1780 BC)
– Justinian’s Corpus Juris Civilis (534)
– Napoleonic Code (1804)
• Legislation is primary source of law
– Courts base judgments on codes and statutes
• Legislature “makes” the law
• Judiciary “interprets” law
 Common Law System
• Courts reason from constitution, legislation,
court-made case law
• Based on historical progression
– Principle of stare decisis:
"to stand by things decided“
 What is Justice?
• Greek philosopher Aristotle: identified with
morality, the idea of what we owe to each other
• Rule of Law concept
• Justice: quality of being just, impartial, or fair
• “justice is blind”
• Justice focuses on process of ensuring justice
• Independent system in place, court or
administrative body, governed by reasonable
rules
• Justice must conformity to truth, fact, or reason
• Rules of procedure/evidence provide process
is fair; decision maker can know what is
accurate/truthful
 Sources of Law
• Natural Law: law is just if if references morality, ethics religion
• Positivist School: Associated with H. L. A. Hart
• Latin root positus, which means to postulate, make
• Focus on how law is made
• Rule of Law
• Legal realist: 1920s and 1930s as a reaction to previous theories
• “Digestive Theory” judges hold personal beliefs, operate in a
social context
• Legal decisions are made not found
• Argued for the adoption/use of social studies in the law
• Critical Legal Studies: social order (and the law) is dominated by
those with power, wealth, influence
• Example: economist Karl Marx, socialism/communism
• Women’s perspectives
• Racial/social minorities perspectives
 What is Litigation?
• Litigate = “contest in law”
– Litigation = “judicial proceedings”
• Dispute resolution of issues between individuals
• Action brought before a court by plaintiff against
defendant seeking a legal remedy
• Types of relief:
– Enforce a right
• Ex: right of ownership
– Money award
– injunction (prevent or compel an act)
 Are Litigants Required to Use a Lawyer?
• Generally litigants can we represent themselves
–but-
• Importance of “advocacy”
– Pleading cause of another
“A man who represents himself has a fool for a
client”
• Adversary nature of litigation
– Definition: “An opponent who strives against
the enemy”
• Adversarial nature of rule-based system
seeking justice
 Who May Practice Law
• Varies from jurisdiction but must be "licensed"
– Designed by attorney organization
"Bar Association"
• Statute/administrative regulation regulates practice of law
– Common requirements:
• Good moral character
• Minimum educational requirements
• Pass exam or internship/clerkship
• Take oath to support laws / standards
–“Zealously advocate for a client”
–Not lie, cheat, or steal, or help another do so
»Avoid conflicts of interest
 Lawyer's Profession
• Advice / counseling to clients
• Preparation of legal documents
– Contracts / wills / business organizations /
real estate deeds / corporate documents
• Represent before government agencies
– Tax, zoning
• Prepare case
– To sue / to defend
• Negotiator between opposing parties
– Possibly settle (civil / criminal) matter
• Represent client in court (civil / criminal)
 Factors in Deciding to Sue
1. Cost of Lawsuit
Filing fees, administrative charges
2. Lawyers fees – Usually payable by each party
Two Types: Hourly, Contingent
“Lawyers stock and trade is time”
3. Loss of Time – business and personal
4. Long-term effects on relationship/reputation of
parties
 Factors in Deciding to Sue
5. Stress – business/personal
6. Uncertainty of outcome
Judges are human
Involves risk of:
- Losing significant sum of money
- Gaining significant sum
- Not losing but not winning
 What Rules Govern a Lawsuit?
• Court Rules of Procedure
– Civil procedure dictates timing,
progression of lawsuit
• Failure to comply with procedural rules
can result in serious limitations or
dismissal of a lawsuit
 Types of Courts
• Trial Courts
(courts of original jurisdiction)
• Appellate Courts
 Trial Courts
Common function:
–Finding relevant facts
–Identifying appropriate law that applies
to the situation/facts
–Combining the facts and the law to reach
a decision in settlement of the dispute
Facts + Law = Decision (Judgment)
 Appellate Courts
• Appellate courts review decisions of lower
courts
– Some countries have Intermediate Appellate
Courts
• Appeal is challenge of a judgment to a higher
judicial authority
• Commencement: formally filing a notice of
appeal
– Appeal contains Appellate Brief
 Issues Considered on Appeal
• Trial record is considered
– Some appellate courts consider new
evidence
• Appellant, respondent argue on
– proceedings, rulings
– evidence considered
– law used
– final judgment challenged
• Appellant must prove that the lower court
committed error
 Remedies on Appeal
• Remedies on appeal:
–Affirm: lower court ruling stands
–Reverse: change lower court ruling
–Remand: send cases back to lower court
 Jurisdiction
• Power, or authority, of a court to hear a case
– Determined by court’s rules of procedure
other laws establishing courts
• Court must have proper jurisdiction (authority)
to start/proceed
– Judgments made with improper jurisdiction
might not be recognized by other courts
• Most common jurisdictional issues:
– Personal Jurisdiction
– Subject Matter Jurisdiction
– In Rem Jurisdiction
 Personal Jurisdiction
• Physical Jurisdiction: Usually defendant must be
physically in court’s geographic area at
commencement of lawsuit
– Traditional requirement
• Due Process of Law: An idea of fairness
– Notice (procedural)
– Right to Defend (substantive)
• Defendant must be notified of the lawsuit
and be allowed the opportunity to defend
 Subject Matter Jurisdiction
• Subject matter jurisdiction: type of claims a court has
jurisdiction over
– Small Claims Court – jurisdiction limited by amount at
issue
– Bankruptcy Court – deals only with bankruptcy cases,
reorganizations and liquidations
– Domestic Relations
– Intellectual Property Court
– International Trade Court
Court of “General" Jurisdiction: hears cases over which
no other court has exclusive jurisdiction
 in rem Jurisdiction
• Jurisdiction established by the location of
property (ex: bank account, real property,
a boat, ship or plane) within court’s
physical boundaries
–Court’s control of property gives
jurisdiction
 Jurisdiction by Agreement: Facebook
If you are a consumer, the laws of the country in which you reside
will apply to any claim, cause of action or dispute that you have
against us that arises out of or relates to these Terms or the Meta
Products, and you may resolve your claim in any competent court
in that country that has jurisdiction over the claim. In all other
cases, and for any claim, cause of action or dispute that Meta files
against you, you and Meta agree that any such claim, cause of action
or dispute must be resolved exclusively in the US District Court for
the Northern District of California or a state court located in San
Mateo County. You also agree that you submit to the personal
jurisdiction of either of these courts for the purpose of litigating any
such claim, and that the laws of the State of California will govern these
Terms and any claim, cause of action or dispute without regard to
conflict of law provisions. Without prejudice to the foregoing, you agree
that, in its sole discretion, Meta may bring any claim, cause of
action or dispute we have against you in any competent court in
the country in which you reside that has jurisdiction over the
claim.

http://www.facebook.com/terms.php
 What is a Trial?
• Parties to a dispute present information (in
the form of evidence) in a formal setting,
before a judge (or jury) to achieve a
resolution to their dispute
–Each party will have the burden of going
forward and meeting the burden of proof
• Trials are govern by rules of procedure/
rules of evidence
 Litigation Concepts
• Role of the court, role of the judge
–Bench trials vs. jury trials
• Pre-trial litigation
–Complaint
–Summons
–Answer
–Motions
 Motions
• Request that a court make a decision (ruling) or order some
action by one of the parties
• Common pre-trial motions:
– Summary Judgment
– Default Judgment
– Injunctions:
Ex: Sequestration of assets
Ex: To prevent trespass
Ex: To prevent intellectual property violations
– Discovery requests
• Motions usually must contain a request and some evidence to
prove facts , commonly an affidavit or testimony
 Course of a Trial
• Trial Briefs
• Opening Statements
• Presentations by each side
• Closing statements
• Judgment
 Evidence
• At trial, a court seeks the facts
– To determine the facts court considers evidence
• Facts are information on which lawyers base their
arguments to win cases
– Evidence presented in trial is offered to prove
facts supporting one's argument
• Use of evidence is used to convince court that
litigant’s facts are the proper ones on which to base
a decision
 Types of Evidence
• Types of Evidence-
– Real evidence – things
• Generally requires “sponsoring witness”
• “Best Evidence”: original writing, recording, or
photograph
– Testamentary evidence: presents narrative
about what witness said, saw or did
– Circumstantial Evidence: reasonable conclusions
which come from other types of evidence
• Ex: fingerprint evidence
 More Types of Evidence
• Expert Testimony- Generally witnesses are not
allowed to give opinions: court holds ultimate
opinion on issues, but expert is allowed to give an
opinion
– Expert must be qualified by education,
experience
• Judicial Notice – Court can accept a common fact
as true
 More Types of Evidence
• Affidavit: Written, sworn statement of a person
– Person making affidavit must promise to tell the
truth
• Court Clerks, Notaries or Taker of Oaths must
verify that person making affidavit swears its
true
– Affidavits are weak evidence
• Not “done” in court so person making affidavit
is not subject to cross-examination
 Standard for Consideration of Evidence
• Logically relevant - related to issues of the case
• Legally relevant - does not cause:
– prejudice
– confusion of the issues
– misleading to the court
– undue delay
– waste of time
– simply cumulative

Practically both sides will argue to the court to exclude the

other side’s evidence from being considered
Frustrate the other party’s efforts to prove their case
 Standard for Consideration of Evidence
Witness Testimony:
• Competency: Usually witness may testify
only to matters of personal knowledge
• Impeachment – call into question the
credibility of individual’s testimony
• Court could reject/give lower weight to
testimony
 “Burdens” in a Lawsuit
1 - Burden of going forward: requirement to
present sufficient evidence meeting the
burden of proof on all elements of a claim
- prima facie case
2 - Burden of proof
Burdens of Proof:
–Proof Beyond a Reasonable Doubt
–Preponderance of the Evidence
–Clear and Convincing Evidence
–Probable Cause
 Alternative Dispute Resolution (ADR)
• Negotiation
• Communication / persuasion - then -
• Mediation
• Neutral third party
• Assist in resolving dispute
• Arbitration
• “Rent-a-judge” American/Thai Arbitration Assoc
• Formal
• Arbitrator selected
• Acts as judge
• Often decision is binding
Alternative Dispute Resolution (ADR)
• Advantages
• Voluntary
• Often simpler, faster, cheaper
• Specialized arbitrators
• Private proceedings
• Choice of venue, language
THANK YOU FOR YOUR ATTENTION