Dispute Regulation

OBE-118, Section 3

Fall 2004

John McKinsey

U.S. Civil Court system and how individuals use it to (hopefully) resolve their dispute

and

Alternatives to that system (Alternative Dispute Resolution or “ADR”)

So you have a dispute….

Do I sue?What are my goals in resolving this

dispute?

Lawsuit, attorney’s fees, courtroom, judge, jury, public, etc.

Agreement between parties, resolution, quick, less expensive, private, etc.

Using Courts to Resolve Disputes

• What court? (Jurisdiction)

• How does the court system work? (Civil Procedure)

What Court

• The Federal Court System?

• The State Court Systems? (really 50)

Jurisdiction

3 Concepts of Jurisdiction

• Court Jurisdiction (political boundaries)

• Personal Jurisdiction

• Subject Matter Jurisdiction

Federal versus State Jurisdiction

Exclusive Federal Jurisdiction

Exclusive State Jurisdiction

Federal crimes and certain federal matters such as antitrust, patent, bankruptcy

Diversity of citizenship cases

All matters not covered above (State crimes, non-diversity civil suits based on state law, etc.)

Concurrent Federal Jurisdiction

Federal matters not exclusive

Court Jurisdiction

Federal Court State #1 Court State #2Court

Concurrent Federal Jurisdiction

Exclusive Federal

Jurisdiction

Exclusive State

Jurisdiction

What Type of Court?

• Courts of Limited versus General Jurisdiction

• Trial versus appellate courts

This is really all “Subject Matter Jurisdiction”

What State Court Systems Can Be Used?

• State where incident occurred

• State where defendant “lives”

• Other states?

• Generally, the answer to this question is limited by “Personal Jurisdiction” and principals of Due Process

Personal Jurisdiction

In personam jurisdiction• Court must have subject matter jurisdiction over the complaint• Serve the person a summons within the state

• Long arm statute can solve out-of-state problems

The Jurisdiction Triangle

Court Juris

S/M Juris

Personal Juris

Trials

Formal procedure is followed

Text is great in this area

Appeals

• Not always mandatory that court must take it

• Scope of review

• Errors of law- yes• Errors of fact- no*

Alternative Dispute Resolution

• Solving a dispute by reaching mutual agreement is always better than relying upon civil court system.

• Negotiation

• Mediation

• Arbitration

• Arbitration clauses

Arbitration Clauses

• Waiving right to Jury Trial

• Waiving right to sue or use court system

• Increasingly being allowed by courts

• To be effective against individual or consumer they usually must be conspicuous and directly acknowledged by individual