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JUDICIAL, ALTERNATIVE AND ONLINE DISPUTE

RESOLUTION© 2010 Pearson Education, Inc., publishing as Prentice-Hall© 2010 Pearson Education, Inc., publishing as Prentice-Hall

CHAPTER 3 CHAPTER 3

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Pretrial Litigation Process

Pleadings Discovery

Dismissals and Pretrial Judgments

Settlement Conference

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Pleadings

• Complaint

• Answer

• Cross-Complaint

• Reply

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Complaint and Summons

• Plaintiff files– Lists parties– Alleges facts and laws violated– Prayer for relief

• Court issues summons– Directs defendant to appear and answer

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Answer

• Defendant must file answer– Admitting or denying allegations– Stating affirmative defenses

• If all allegations admitted, judgment entered against defendant

• If no answer filed, default judgment entered

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Cross-Complaint and Reply

• Defendant may sue plaintiff for damages or some other remedy

• Original plaintiff must file a reply and serve on defendant

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Intervention and Consolidation

• Intervention– Other parties have interest in lawsuit and

become parties• E.g., bank with security interest in property that is

subject of lawsuit

• Consolidation– Several plaintiffs have filed lawsuits stemming

from same situation– Court will consolidate if no undue prejudice– Reduces strain on court system

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E-Filing

• “Virtual courthouse” allows e-filing of documents and electronic conferences– Available in some states– Mandatory in some states

• Advantages– Saves paper– Saves time– Easier to track documents

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Statute of Limitations

• Establishes the period during which plaintiff must bring a lawsuit against a defendant.

• If a lawsuit is not filed within this time period, plaintiff loses right to sue.

• Established for each type of lawsuit.– E.g., 2 years for tort claim– 4 years for breach of contract under UCC

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Discovery

• A legal process during which both parties discover facts of the case from the other party and witnesses prior to trial.

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Discovery (continued)

• Purposes:– Preventing surprise

– Allowing parties to thoroughly prepare for trial

– Preserving evidence

– Saving court time

– Promoting settlement of cases

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Discovery (continued)

The major forms of discovery are:

• Depositions

• Interrogatories

• Production of documents

• Physical and mental examination

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Depositions

• Oral testimony given by party or witness– Under oath– Parties must give depositions– Witnesses can be compelled by subpoena– Evidence preserved by court reporter or on

videotape– May be used to impeach testimony at trial

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Interrogatories

• Written questions submitted by one party to the other

• Must be answered and returned within a set time period

• Answers affirmed under oath

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Production of Documents

• Documents that parties request the other side to produce or make available for review– E.g., company records, correspondence,

memoranda– Discoverable if may lead to admissible

evidence

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Examinations

• If the physical or mental condition of a party are in question, an examination by an expert may be required.

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Dismissals and Pretrial Judgments

• Pretrial Motion – A motion a party can make to try to dispose

of all or part of a lawsuit prior to trial.• Motion for judgment on the pleadings• Motion for summary judgment

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Dismissals and Pretrial Judgments (continued)

• Motion for Judgment on the Pleadings– Even if all the facts presented in the

pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these facts.

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Dismissals and Pretrial Judgments (continued)

• Motion for Summary Judgment– Motion that asserts that there are no factual

disputes to be decided by the jury.– Judge can apply the proper law to the

undisputed facts and decide the case without a jury.

– These motions are supported by affidavits, documents, and deposition testimony.

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Settlement Conference

• Federal court rules and most state rules allow for a pretrial hearing or settlement conference

• In judge’s chambers

• At least 95% of all cases settle before trial

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Cost-Benefit Analysis of a Lawsuit

• Consider:– Probability of winning or losing. Never certain.

– The amount of money to be won or lost.

– Lawyers’ fees and other costs of litigation.

– Loss of time by managers and other personnel.

– Effect on relationships and reputation.

– Aggravation and psychological costs.

– Other?

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Trial

• 7th Amendment guarantees the right to a jury trial in cases in federal court.

• Most state constitutions contain a similar guarantee for state court actions.

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Trial (continued)

• If either party requests a jury, the trial will be by jury.

• If both parties waive their right to a jury, the trial will be without a jury.– Many business disputes are bench trials

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Phases of Trial

1. Jury Selection

2. Opening Statements

3. Plaintiff’s Case

4. Defendant’s Case

5. Rebuttal and Rejoinder

6. Closing Arguments

7. Jury Instructions

8. Jury Deliberation

9. Entry of Judgment

1. Jury Selection

2. Opening Statements

3. Plaintiff’s Case

4. Defendant’s Case

5. Rebuttal and Rejoinder

6. Closing Arguments

7. Jury Instructions

8. Jury Deliberation

9. Entry of Judgment

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Appeal

• In a civil case,– either party can appeal the trial court’s

decision.– appeal can be filed once a final judgment is

entered.

• In a criminal case,– only a defendant can appeal.

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Appeal (continued)

• Appeal is made to the appropriate appellate court, according to timetable set by procedural rules.

• Appellate court will reverse lower court for errors of law.– Will reverse finding of fact only if it is

unsupported by any evidence.

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Alternative Dispute Resolution (ADR)

• Methods of resolving disputes other than litigation.

• Developed in response to the expense and difficulty of bringing a lawsuit.

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MediationMediation

Alternative Dispute Resolution (ADR) (continued)

Negotiation Arbitration

Conciliation

Mini-trial

Fact-FindingJudicial Referee

Conciliation

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Arbitration

• Common in commercial and labor disputes

• Parties choose neutral third party to hear evidence and testimony and decide the case

• Arbitrator makes a decision and enters an award

• Arbitration can be binding or non-binding

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Key ADR Legislation

• Uniform Arbitration Act– Adopted by half of the states.– Promotes the arbitration of disputes at the

state level.

• Federal Arbitration Act– Arbitration agreements involving commerce

are valid, irrevocable, and enforceable contracts.

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Mediation and Conciliation

• Mediation– Parties choose a neutral third party to assist

them.– Parties reach settlement.– Mediator does not make judgment or issue

award.

• Conciliation– Parties use an interested third party to act as

mediator.

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Mini-trial

• Short session in which lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute

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Fact-Finding

• Process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides

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Judicial Referee

• Court-appointed referee who conducts a private trial and renders a judgment

• Parties reserve their right to appeal

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Online Dispute Resolution

• Register with ADR service provider online.• Service provider notifies other party by email. • Parties trade offers and counter-offers with aim

of settling dispute, or online mediator may be involved.

• “Chat rooms” used in process.• May be quicker, cheaper, and less adversarial

than traditional methods.