DISPUTE

RESOLUTION
 FORMS OF DISPUTE
RESOLUTION

LITIGATION ADR
 Negotiation
The structure of our
court systems
Personal versus subject  Mediation
matter jurisdiction
Stages of civil litigation
 Arbitration
from pleadings to trial
Appeals
STRUCTURE OF FEDERAL AND
STATE COURTS
 ELIZABETH SMILES V. COASTAL
INSURANCE COMPANY, INC.

• How did Tony Caruso die? Was his death accidental or

suicide?
 TRIAL COURTS &
JURISDICTION

• Trial courts determine the facts of a particular dispute.

Facts can be determined by a judge or jury. Appellate
court ensure that trial courts apply the correct law to
the facts.
• Two types of jurisdiction:
• Personal Jurisdiction: Legal authority to require the
defendant to stand trial and pay judgments.
• Subject Matter Jurisdiction: A Court’s authority to
hear a particular type of case.
 PERSONAL JURISDICTION

• Personal jurisdiction exists:

• For individuals, in the state in which the defendant resides.
For companies, the state(s) in which the defendant does
business.
• When a summons is served on a defendant while present in a
state.
• When the defendant takes a formal step to defend a lawsuit.
• When a long-arm statute exists. A long-arm statute gives a
court jurisdiction over someone who commits a tort, signs a
contract, or conducts “regular business activities” in the state.
INTERNATIONAL SHOE CO. V. STATE OF WASHINGTON

• Facts:

• Issue:

• Decision:
 SUBJECT MATTER JURISDICTION
FOR FEDERAL COURT

 Federal question case: When a claim is based on the United States

Constitution, a federal statute, or a federal treaty, then Federal courts
have jurisdiction.
 Diversity jurisdiction: When a Plaintiff and Defendant are citizens of
different states and the the amount in dispute exceeds $75,000, then
Federal courts have jurisdiction.
 LITIGATION: PLEADINGS


Pleadings: Documents that begin a lawsuit
Complaint (see example in the Coastal case)
Answer (see example in the Coastal case)
Sometimes a Reply

Complaint: Short, plain statement of the facts alleged and the
legal claims made.
Summons - Paper ordering the defendant to answer the
complaint within 20 days.

Answer - Brief reply to each of the allegations in the
complaint with 20 days.
Default judgment: Decision that the plaintiff wins without
trial because the defendant failed to answer in time.
 LITIGATION: DISCOVERY

• Discovery
• Interrogatories - Written questions that the opposing party must
answer, in writing, under oath within 30 days.
• Depositions-One party’s lawyer questions the other party live and
under oath.
• Deponent: Person being questioned.
• Watch Justin Bieber’s deposition:
https://www.youtube.com/watch?v=emsLrZg160s
• Requests for the Production of Documents and Things- When one
side requests certain documents and other tangible things relevant to
the case.
• Physical and Mental Examination-For medical malpractice cases
• E-Discovery
• Businesses large and small have vast amounts of data stored
electronically and there is a trove of information on social media.
 LITIGATION: AFTER
DISCOVERY

 After the pleadings, the parties can file various motions.

Motions are requests for the judge to make certain
determinations before trial.
 Motion for Summary Judgment: Request that the judge
terminate the case because there are no material facts in
dispute and one party is entitled to judgment as a matter of
law.
 JONES V. CLINTON

• Facts:

• Issue:

• Decision:
 TRIAL AND JURY SELECTION

Trial Prep:
Attorneys make lists of all witnesses they will call
 Attorneys prepare each witness very carefully
 Rehearse the questions
 Takes hours and hours, for many days

 Voir dire: Process of selecting a jury that will be impartial.

Challenges for cause: Claiming that a juror has demonstrated
probable bias.
Peremptory challenges: Right to excuse a juror for virtually any
reason but not discriminatory reason.
Opening statements - summarizing the proof he or she expects to
offer, with the plaintiff going first.
 TRIAL AND EVIDENCE


Adversary system
Putting a witness on the stand and letting both lawyers question
the witness.
Direct, Cross, Re-direct, Re-cross examination
In addition to witness testimony, you present documents and
other things to prove your case--evidence.
Burden of proof in a civil case is preponderance of the evidence.

Closing arguments
Lawyers sum up their case to the jury explaining how they hope
the jury will interpret what they have heard.

Jury instructions
The judge instructs the jury to evaluate the case solely on the
facts of the evidence presented.
The jury comes up with a verdict.
There are various post verdict motions that can be filed.
 APPEALS

 An appeal is a review of the trial court's application of the law.

There is no jury in an appeal, nor do the lawyers present witnesses
or, typically, other forms of evidence. The court will accept the
facts as they were revealed in the trial court, unless a factual
finding is clearly against the weight of the evidence. A court of
appeals can do the following:
Affirm: Allow the decision to stand.
Modify: Allow a decision to stand but reduce the damages.
Reverse and remand: Nullify the lower decision and return the
case for reconsideration.
Reverse: Turning the loser into the winner, with no new trial.
 ALTERNATIVE DISPUTE RESOLUTION

 Alternative dispute resolution: Formal or informal process used to

settle disputes without resorting to a trial such as mediation and
arbitration.
 What are some pros to ADR? What are some cons to ADR?
 ALTERNATIVE DISPUTE RESOLUTION

• Negotiation
Majority of disputes are resolved this way. This is
the most informal way of resolving a dispute and
can occur at anytime—before, during or after
litigation.
• Mediation
•Mediator - Attempts to guide the two disputing
parties toward a voluntary settlement-non-binding
•Advantages - Two antagonists can speak freely
• All discussions are confidential
• Offers the strongest “win–win” potential
 ALTERNATIVE DISPUTE
RESOLUTION

 Arbitration
An Arbitrator presides over an informal hearing where attorneys are
present. After deliberation, the arbitrator issues a binding decision.
• Mandatory arbitration clauses have become very common in:
• Contracts for the sale of goods and services
• Employment contracts
• Automobile purchases
• Credit card, rental, and cell phone agreements
 MANDATORY ARBITRATION
CLAUSES

• Courts will enforce mandatory arbitration clauses when:

• 1. The parties freely and knowingly agree;
• 2. The parties mutually promise to submit disputes to
arbitration; and
• 3. The arbitration clause provides a neutral forum to resolve
disputes and adopts fair rules for proceeding.
 JOHN DOE V. THE COLLEGE
BOARD

• Facts:

• Issue:

• Decision: