chapter 6 civil litigation and its alternatives. litigation v. alternative dispute resolution o what...

Download Chapter 6 Civil Litigation and Its Alternatives. Litigation v. Alternative Dispute Resolution o What is litigation? o Alternative approaches to litigation

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  • Chapter 6Civil Litigation and Its Alternatives

  • Litigation v. Alternative Dispute ResolutionWhat is litigation?Alternative approaches to litigationAlternative Dispute Resolution (ADR)*

  • *Search for Alternatives to LitigationTrials are a means of dispute resolution that are very expensive and sometimes take many months to resolve.There are alternative dispute resolution (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.

  • *ADRADR describes any procedure or device for resolving disputes other than the traditional judicial process. Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. Most common: negotiation, mediation, arbitration.

  • *Negotiation and MediationLess than 10% of cases reach trial.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.Successful negotiation involves thorough preparation, from a position of strength.

  • *Assisted NegotiationMini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3rd party (e.g., a retired judge) who renders a non-binding verdict. This facilitates further discussion and settlement.Expert evaluations.Conciliation: 3rd party assists in reconciling differences.

  • *MediationInvolves a neutral 3rd party (mediator).Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine common ground.Advantages: few rules, customize process, parties control results (win-win).Disadvantages: mediator fees, no sanctions or deadlines.

  • *ArbitrationMany labor contracts have binding arbitration clauses. Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official. More formal than negotiation or mediation similar to trial

  • *Arbitration ProcessContracts include a binding arbitration clause or through a submission agreement.Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.

  • *Setting Aside an Arbitration AwardLosing party may appeal the decision to a court.Winning party may ask a court to enforce the award.Courts role is limited to determining whether a valid award existsFacts and legal conclusions are usually final.

  • *Setting Aside an AwardAward result of fraud or corruption.Arbitrator bias.Arbitrator abuse of discretion.Arbitrator exceeded powers.

  • *Disadvantages of ArbitrationResults may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.Arbitrators do not have to issue written opinions.Generally, no discovery available.

  • *Introduction to a Civil LawsuitRoad to justice in civil lawsuit can consume much time and money may not conclude for several years due to delays, appeals, etc.; attorneys fees and costs may be in 10s of 1,000s even in average case.Cost/benefit analysis probability of winning; expense vs. relief; value of early settlement.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.

  • *Stages of LitigationInformal Negotiations.Pleadings.Service of Process.Defendants Response.Discovery.Pre-Trial.Trial.Post-Trial.

  • *Litigation- Pleadings 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

  • *PleadingsAccident, breach of contract or other incident(s) may be one event or series of events over days, weeks, months or years.Party consults with attorney initial client interview; review facts, documents, etc.; signing of retainer agreement; evaluate deadlines such as statute of limitations.Informal investigation and/or settlement negotiations prior to lawsuit; note that investigation and negotiation can happen at any time during lawsuit.Exhaust administrative remedies (will be applicable in cases vs. govt only) can have quick deadlines.Filing of complaint and summons issued complaint specifies partiesultimate facts in support of causes of action (what happened?) and relief sought (prayer); summons is pre-printed form identifying parties, courts and plaintiffs attorneys contact information, and admonition to respond within certain time.Sample complaint: Page 114

  • *Pleadings-Service of ProcessDefendant served with Complaint and Summons. Court acquires Personal Jurisdiction over Defendant (person or corporation).Corporate Defendants are served via Registered Agent.

  • *Pleadings-AnswerThe Answer is the Defendants response to the allegations stated in the Plaintiffs Complaint.In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.

  • *Pleadings-AnswerDefendants Answer:May state General Denial.Move for Change of Venue.Allege Affirmative Defenses.Counter Claim against Plaintiff.

  • *Dismissal and Judgments Before TrialDefendant can move the Court to dismiss the Action for various reasons, such as: The Court lacks jurisdiction.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).Court looks only at facts in ComplaintKnown as Motion to Dismiss Rule 12If Defendant fails to answer, a default judgment can be entered

  • Judgments Before TrialMotions for Summary Judgment Federal Rules of Civil Procedure 56Court considers additional evidence presented in documents other than pleadings, including depositions, answers to interrogatories, admissions and affidavitsIf all documents show that There is no genuine issue as to any material fact andThe moving party is entitled to a judgment as a matter of lawThe court will grant the motion and enter judgment for the moving party*

  • *Litigation- Discovery 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

  • *DiscoveryDiscovery is the process by which parties obtain information from the opposing party prior to trial. Various tools are used:Depositions & Interrogatories.Deposition: sworn testimony taken outside the courtroomInterrogatories: written questions sent by one party that another party must answer in writingRequests for Admissions.Requests for Production of Documents and Objects.

  • *Litigation- Pre-Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

  • *Litigation-Pre-TrialMediation-Arbitration.Settlement ConferenceDisposition Without Trial:Default Judgments.Dismissals (With/Without Prejudice).Summary Judgment.Settlement.Pre-Trial Orders (ex:TRO, In Limine).

  • *Litigation- Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

  • *The TrialTrial is fundamentally an evidence presentation and authentication procedure.To prevail, Plaintiff must introduce a preponderance of competent, relevant evidence with respect to each disputed allegation in order to prove it.

  • *The Trial [2]The Defendant will attempt to introduce a preponderance of competent evidence to disprove at least one of the disputed allegations.Hearsay is inadmissible.

  • *The Trial [3]Bench Trial (no jury).Jury Selection process involves:Voir Dire;Peremptory Challenges;Challenges to biased jurors;Pick and Impanel the Jury; andSelection of Alternate Jurors.

  • *The Trial [4]Opening Statements (Plaintiff first).Plaintiffs Case--Evidence:Witnesses- Direct examination vs. Cross X and RedirectAdmissibility 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.

  • *The Trial [5]Plaintiffs Case (contd). Party may impeach the testimony or credibility of opposing witness by showing prior inconsistent statements and/or perjury.Defendants Case is next. Closing Arguments (Plaintiff first).Jury Instructions, Deliberations and Verdict.

  • *The Trial [6]Jurys Verdict: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.Civil Casesgenerally, burden of proof is by preponderance of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.

  • *Litigation- Post Trial 1st 2nd 3rd 4th 5th Pleadings // Discovery // Pre-Trial // Trial // Post

  • *Post TrialJudgment: Jury verdict is entered by the Clerk of Court.A party may move for a New Trial.A party may file a Motion for Judgment N.O.V..Sentencing (criminal).

  • *Post Trial-AppealA party may appeal not only the jurys verdict but any legal issue, motion or court ruling during the trial.

    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 Appellants behalf.

    Appeals court can affirm (agree with) or reverse (disagree with) the lower courts decision.

  • *Post Trial-EnforcementOnce a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally req


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