Dispute Regulation OBE-118, Section 3 Fall 2004 John McKinsey U.S. Civil Court system and how...
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Transcript of Dispute Regulation OBE-118, Section 3 Fall 2004 John McKinsey U.S. Civil Court system and how...
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