Transcript Document 7442919
Chapter 6
Civil Litigation and Its Alternatives
Litigation v. Alternative Dispute Resolution
o What is litigation? o Alternative approaches to litigation o Alternative Dispute Resolution (ADR) 2
Search for Alternatives to Litigation
o Trials are a means of dispute
resolution that are very expensive and sometimes take many months to resolve.
o There are “alternative dispute
resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.
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ADR
o ADR describes any procedure or device
for resolving disputes other than the traditional judicial process.
o Unless court-ordered, there is no record
which is an important factor in commercial litigation due to trade secrets.
o Most common: negotiation, mediation,
arbitration.
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Negotiation and Mediation
o Less than 10% of cases reach trial. o Negotiation is informal discussion of
the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case.
o Successful negotiation involves
thorough preparation, from a position of strength.
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Assisted Negotiation
o Mini-Trial: Attorneys for each side
informally present their case before a mutually agreed-upon neutral 3 rd party (e.g., a retired judge) who renders a non-binding “verdict.” This facilitates further discussion and settlement.
o Expert evaluations. o Conciliation: 3
rd party assists in reconciling differences.
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Mediation
o Involves a neutral 3
rd (mediator).
party
o Mediator talks face-to-face with
parties (who typically are in different adjoining rooms) to determine “common ground.”
o Advantages: few rules, customize
process, parties control results (win-win).
o Disadvantages: mediator fees, no
sanctions or deadlines.
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Arbitration
o Many labor contracts have binding
arbitration clauses.
o Settling of a dispute by a neutral 3
rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.
o More formal than negotiation or
mediation – similar to trial
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Arbitration Process
o Contracts include a binding arbitration
clause or through a submission agreement.
o Case begins with a submission to an
arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.
o Courts are not involved in arbitration unless
an arbitration clause in a contract needs enforcement.
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Setting Aside an Arbitration Award
o Losing party may appeal the decision
to a court.
o Winning party may ask a court to
enforce the award.
o Court’s role is limited to determining
whether a valid award exists
o Facts and legal conclusions are
usually final.
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Setting Aside an Award
o Award result of fraud or corruption. o Arbitrator bias. o Arbitrator abuse of discretion. o Arbitrator exceeded powers. 11
Disadvantages of Arbitration
o Results may be unpredictable
because arbitrators do not have to follow precedent or rules of procedure or evidence.
o Arbitrators do not have to issue written
opinions.
o Generally, no discovery available. 12
Introduction to a Civil Lawsuit o “Road to justice” in civil lawsuit can
consume much time and money – may not conclude for several years due to delays, appeals, etc.; attorney’s fees and costs may be in 10’s of 1,000’s even in average case.
o Cost/benefit analysis – probability of
winning; expense vs. relief; value of early settlement.
o Many procedures to follow before, during
and after trial, such as filing deadlines, rules of evidence, motions, etc.; noncompliance with these procedures may result in monetary, evidence and/or terminating sanctions.
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Stages of Litigation
o Informal Negotiations. o Pleadings. o Service of Process. o Defendant’s Response. o Discovery. o Pre-Trial. o Trial. o Post-Trial. 14
Litigation- Pleadings
1st Pleadings 2nd 3rd 4th 5th // Discovery // Pre-Trial // Trial // Post
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Pleadings
o Accident, breach of contract or other incident(s) – may be one
event or series of events over days, weeks, months or years.
o Party consults with attorney – initial client interview; review facts,
documents, etc.; signing of retainer agreement; evaluate deadlines such as statute of limitations.
o Informal investigation and/or settlement negotiations prior to
lawsuit; note that investigation and negotiation can happen at any time during lawsuit.
o Exhaust administrative remedies (will be applicable in cases vs.
gov’t only) – can have quick deadlines.
o Filing of complaint and summons issued – o complaint specifies parties o ultimate facts in support of causes of action (what happened?) and
relief sought (prayer);
o summons is pre-printed form identifying parties, court’s and plaintiff’s
attorney’s contact information, and admonition to respond within certain time.
o Sample complaint: Page 114 16
Pleadings-Service of Process
o Defendant served with
Complaint and Summons.
o Court acquires Personal
Jurisdiction over Defendant (person or corporation).
o Corporate Defendants are
served via Registered Agent.
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Pleadings-Answer
o The Answer is the Defendant’s
response to the allegations stated in the Plaintiff’s Complaint.
o In the Answer, the Defendant
must specifically admit or deny each allegation in the Complaint.
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Pleadings-Answer
oDefendant’s Answer:
oMay state General Denial. oMove for Change of Venue. oAllege Affirmative Defenses. oCounter Claim against Plaintiff. 19
Dismissal and Judgments Before Trial
o Defendant can move the Court to
dismiss the Action for various reasons, such as:
o The Court lacks jurisdiction. o The Plaintiff has failed to make all of
the allegations, in his Complaint, that the law requires (i.e., the plaintiff has failed to state a cause of action).
o Court looks only at facts in Complaint o Known as Motion to Dismiss – Rule 12 o If Defendant fails to answer, a
default judgment can be entered
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Judgments Before Trial
o Motions for Summary Judgment o Federal Rules of Civil Procedure 56 o Court considers additional evidence
presented in documents other than pleadings, including depositions, answers to interrogatories, admissions and affidavits
o If all documents show that o There is no genuine issue as to any material
fact and
o The moving party is entitled to a judgment as a
matter of law
o The court will grant the motion and enter
judgment for the moving party
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Litigation- Discovery
1st 2nd Pleadings // Discovery 3rd 4th 5th // Pre-Trial // Trial // Post
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Discovery
o Discovery is the process by which
parties obtain information from the opposing party prior to trial. Various tools are used:
o Depositions & Interrogatories. o Deposition: sworn testimony taken outside the
courtroom
o Interrogatories: written questions sent by one party that
another party must answer in writing
o Requests for Admissions. o Requests for Production of Documents
and Objects.
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Litigation- Pre-Trial
1st 2nd 3rd Pleadings // Discovery // Pre-Trial 4th 5th // Trial // Post
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Litigation-Pre-Trial
o Mediation-Arbitration. o Settlement Conference o Disposition Without Trial: o Default Judgments. o Dismissals (With/Without Prejudice). o Summary Judgment. o Settlement. o Pre-Trial Orders (ex:TRO, In Limine). 25
Litigation- Trial
1st 2nd 3rd 4th Pleadings // Discovery // Pre-Trial // Trial 5th // Post
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The Trial
o Trial is fundamentally an
evidence presentation and authentication procedure.
o To prevail, Plaintiff must introduce
a preponderance of competent, relevant evidence with respect to each disputed allegation in order to prove it.
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The Trial
[2] o The Defendant will attempt to
introduce a preponderance of competent evidence to disprove at least one of the disputed allegations.
o Hearsay is inadmissible. 28
The Trial
[3] o Bench Trial (no jury). o Jury Selection process involves: o Voir Dire; o Peremptory Challenges; o Challenges to biased jurors; o Pick and Impanel the Jury; and o Selection of Alternate Jurors. 29
The Trial
[4] o Opening Statements (Plaintiff
first).
o Plaintiff’s Case--Evidence: o Witnesses- Direct examination vs.
Cross X and Redirect
o Admissibility of evidence decided
by judge. Parties object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted into the trial.
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The Trial
[5] o Plaintiff’s Case (cont’d). o Party may impeach the testimony or
credibility of opposing witness by showing prior inconsistent statements and/or perjury.
o Defendant’s Case is next. o Closing Arguments (Plaintiff first). o Jury Instructions, Deliberations and
Verdict.
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The Trial
[6] o Jury’s Verdict: o Criminal case--burden of proof is “beyond a
reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.
o Civil Cases—generally, burden of proof is by
“preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.
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Litigation- Post Trial
1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post
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Post Trial
o Judgment: Jury verdict is entered by
the Clerk of Court.
o A party may move for a New Trial. o A party may file a Motion for
Judgment N.O.V..
o Sentencing (criminal). 34
Post Trial-Appeal
o A party may appeal not only the jury’s verdict but
any legal issue, motion or court ruling during the trial.
o The party filing the appeal (Appellant) files a brief
that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on Appellant’s behalf.
o Appeals court can affirm (agree with) or reverse
(disagree with) the lower court’s decision.
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Post Trial-Enforcement
o Once a judgment becomes final (i.e.,
subject to no further judicial review) the defendant is legally required to comply with its terms.
o Defendants who will not voluntarily
comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.
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