Courts and LitigationSyllabus Change – Will do Courts first then alternative dispute resolution

The Judiciary’s Role in American Government

Courts -- interpret and apply the law. Judicial review—determining the

constitutionality of laws—the judicial branch acts as a check on the executive and legislative branches of government – Marbury v. Madison

Bush v. Gore (u-Tube clip)Justice Breyer on the US Supreme Court 

Basic Judicial Requirements

Before a lawsuit can be brought before a court, certain requirements must first be met. These include:

Jurisdiction• Federal

• State• Subject

Jurisdiction• Federal

• State• Subject

VenueVenue Standing to Sue

Standing to Sue

Venue

Venue has to do with the most appropriate location for a trial, which is usually the geographical area in which the event leading to the dispute took place or where the parties reside.

Standing to Sue

A requirement that a party must have a legally protected and tangible interest at stake sufficient to justify seeking relief through the court system.

The controversy at issue must also be a justifiable controversy, one that is real and substantial, as opposed to hypothetical or academic.

MN tobacco case Toledo Ohio Jeep Plant from Book

Friends of the Earth, Inc. v. Crown Central Petroleum Corp. Friends of the Earth, a not-for-profit corporation dedicated to the protection of the environment, sued the oil company claiming that discharges of storm-water run-off had directly affected “the health, economic, recreational, aesthetic, and environmental interests of FOE’s members.”

End-of-Chapter Q: 3-3Lamar advertising sues over city ordinance restricting the size and placement of signs. Lamar asked for permission and was denied and now wants to sue. Does Lamar have standing?

Trial Courts

State courts: Courts of general jurisdiction

may be called by a variety of names.

Courts of limited jurisdiction include:– Divorce courts– Probate courts– Traffic courts– Small claims courts

Federal courts: Court of general jurisdiction

is the U.S. District court. Courts of limited jurisdiction

include:– U.S. Tax Court– U.S. Bankruptcy

Court– U.S. Court of Federal

Claims

Intermediate Appellate Courts

Supreme Courts

Internet Jurisdiction

Following a Case Through the State CourtsFollowing a Case Through the State Courts

A sample civil court case in a state court would involve the following:

ThePleadings

ThePleadings

PretrialMotionsPretrialMotions

DiscoveryDiscovery

PretrialConference

PretrialConference

TrialTrialPost trialMotions

Post trialMotions

The AppealThe Appeal

Adversarial System

Attorney Represents Client as an Adversary

Judge is Unbiased, Serves to Enforce Rules

Work-Product

The Pleadings

Complaint:– Filed by the plaintiff with the court to initiate the lawsuit;

served with a summons on the defendant.– Default judgment

Answer:– Admits or denies allegations made by the plaintiff; – may assert a counterclaim or – an affirmative defense.

Motion to dismiss:– A request to the court to dismiss the case for stated reasons,

such as the plaintiff’s failure to state a claim for which relief can be granted.

Pretrial Motions

Motion for judgment on the pleadings: Will be granted if the parties agree on the facts and

the only question is how the law applies to the facts. The judge bases the decision solely on the

pleadings.

Motion for summary judgment:

Will be granted if the parties agree on the facts. The judge applies the law in rendering a judgment.

The judge can consider evidence outside the pleadings when evaluating the motion.

Metzgar v. PlayskoolJury decides factsJude decides laws

Parents of a child who had choked to death on a Playskool toy block sued alleging negligence in failing to warn of the hazard of the block.

Question: Should the court award summary judgment in favor of Playskool?

Discovery

The process of gathering evidence concerning the case. Discovery involves:– Depositions (sworn testimony

by a party or a witness)– Interrogatories (written

questions by one party towards the other made with assistance from the attorneys)

– Various requests (for admissions, documents, medical exams)

Rudy Giuliani – I do not recallClinton – What “is” is.

Pretrial Conference

Either party or the court can request a pretrial conference to:– Identify the matters in dispute after discovery

has taken place, or– To plan the course of the trial

Jury Selection

The jury selection process, also known as voir dire, consists of questions directed to prospective jurors to assess potential bias.

Jury video – McMahon, Philadelphia DA Training Video –

TrialTrial

The typical course of a trial can be diagrammed as follows:

OpeningStatementsOpening

StatementsPlaintiff’s Introduction

of EvidencePlaintiff’s Introduction

of Evidence

Defendant’s Introduction of

Evidence

Defendant’s Introduction of

Evidence

ClosingArguments

ClosingArguments

Post Trial Motions

After a jury has rendered its verdict, either party may make a post trial motion. These include:– Motion for judgment N.O.V. (Notwithstanding the

verdict) will be granted if the judge is convinced that the jury was in error.

– Motion for a new trial will be granted if the judge is convinced that the jury was in error, or there was newly discovered evidence, misconduct by the participants during the trial, or error by the judge.

The Appeal

Either party can appeal the trial court’s judgment to an appropriate court of appeals.

After reviewing the record on appeal, the abstracts, and the attorneys’ briefs, the appellate court holds a hearing and renders its opinion.

Facts versus law on appeal

Enforcing the Judgment

Securing a verdict does not mean there are assets to pay the judgment.

One of the primary factors to decide before filing suit is whether the defendant has resources or assets to pay a judgment.

Legal Representation and Alternative Dispute Resolution

Question

ABC corp promised to deliver 100 gadgets to you by Sept. 15. Due to an interruption of air service, it did not arrive on time. This cost you $100,000. The contract simply states that delivery must occur by Sept. 15 and does not allow for exceptions for occurrences beyond the control of ABC corp.

Would you sue?Would you defend?Does it matter why the shipment failed?

Would you sue?

Decision to File a Lawsuit

Decision to File Factors include:– Whether the law provides a remedy.– Whether the person can expert to prevail.– Whether the expected benefit will compensate for

expenses and other costs, including any business lost as a result of the lawsuit and accompanying publicity.

Decision to Defend Factors include:– Relationship Risk– Publicity Risk– Cost Risk (settlement may be cheaper)

• Is it real?• Will you win?• Is it worth it?

Roles of an Attorney

Adviser – advises a client on steps to take to avoid possible legal problems.

Drafter – writes contracts and other documents for clients.

Negotiator – persuades, argues, or settles with another party on a client’s behalf.

Advocate – presents a client’s position in court.Attorney-Client Privilege. Attorney-client privilege prevents a court and other government bodies from compelling disclosure of the information. (WORK PRODUCT – NOT DISCOVERABLE)

The Search for Alternatives to Litigation

Alternative dispute resolution (ADR) Less costly Less time-consuming Private

The Search for Alternatives to LitigationThe Search for Alternatives to Litigation

Forms of ADR include:

NegotiationNegotiation

Summary Jury Trial

Summary Jury Trial

MediationMediation

Mini-trialMini-trial Rent-a-Judge

Rent-a-Judge

ArbitrationArbitration

Negotiation and Mediation

Negotiation– With or without attorneys– Simple and fast– No third party

Mediation– Third party involved– With or without attorney – usually no attorneys

Arbitration – More formal– Third party involved– Generally binding

Key is to know what you want and when to you are better off walking away - Negotiation Exercise

The Federal Arbitration Act (FAA)

Provides Enforcement for Arbitration Decisions. FAA provides the means for enforcing the arbitration procedure that the parties have established for themselves.

FAA Covers Arbitration Clauses in Interstate Commerce. The FAA covers any arbitration clause in a contract that involves interstate commerce

Contract Between Parties

Annette Phillips was employed by Hooters restaurant from 1989-1996. Five years after she was hired, Hooters implemented an alternative dispute-resolution program which was not supplied to the employees. In 1996, Phillips was allegedly sexually harassed by Gerald Brooks, a Hooters’ official. Her manager told her to “let it go,” so she quit. Phillips threatened to sue and was told by Hooters that she needed to submit her claim to arbitration, which she refused. Hooters filed a suit against Phillips to compel arbitration but was denied by the court.

Increasingly, employers are including arbitration clauses in contracts with their employees. Some argue that while it may be fair to enforce such clauses in contracts between parties of equal bargaining strength, it is not fair to enforce them in employment contracts—because employees usually have no right to negotiate the terms of the contract. Do you agree with this argument? Explain.

Negotiation Exercise • Negotiation v. Arbitration of this issue

• Why would Hooters like arbitration better than litigation?

Work Out A SettlementAssume that the manager slapped her butt and made sexual comments. You want to negotiate a settlement (both sides). Try to reach an agreement – both sides fail if you fail to agree.

Hooters of America, Inc. v. Phillips

How did you settle?

How much money should she get? What else?

31

How much money should she get?What else?

32

Settlements

Fire Manager– Fire manager, she gets job back– Fire manager– Fire manager plus apology– Apology plus training money (did not say how much)

Plus Money– Manger to leave plus paid year’s salary without work– Manager suspended two weeks without pay plus $10,000– $10,000 in free wings – fire manager– Fire both managers, plus $50,000, plus new sexual harassment policy. – Fire manager - $50,000, apology– $50,000 plus agreement “to take legal action”?

Arbitration Clauses in Employment Contracts

Why Employers Like Arbitration for Employee Disputes. Arbitration is easier, faster, and less costly than litigation. Therefore, more businesses are including arbitration clauses in their contracts. What happens if a potential employee objects to the clause? Is this mandatory condition enforceable?

Is that a Problem?Why might victims of employment discrimination prefer to litigate their claims in a judicial forum rather than having them arbitrated, even assuming that arbitration proceedings would be unbiased and would not violate due process rights?

The Arbitration Process

The three steps of arbitration are:

Setting Aside an Arbitration Award

Crime or Contrary to Public Policy. No award will be enforced if compliance with the award would result in commission of a crime or would violate public policy. An arbitration award may also be set aside because of defects in the arbitration process.

Bias or Corruption.– Award was result of corruption, fraud, etc.– The arbitrator exhibited bias or corruption.– The arbitrator’s actions substantially prejudiced the rights of

one of the parties.– The arbitrator exceeded his or her powers.

Merits of the Case – will not be reviewed– Sufficiency of evidence– Arbitrator’s reasoning

Disadvantages to Arbitration

Arbitration has some disadvantages:– Unpredictable, since arbitrators are not

required to follow prior precedents, but must only follow whatever rules have been provided by the parties.

– Expensive, sometimes as expensive as litigation.

– Time consuming, since discovery is often unavailable, the parties may have to call more witnesses than they would in litigation.

Case questions

Arbitration – How can an arbitrator’s decision have force of law, when not a judge?

Case Question 3-6, p. 100. T-mobile agreement to arbitrate. Plaintiff want to start a class action to sue over excessive fees. What happens?

Court-Mandated ADR vs. Court-Annexed Arbitration

Court-Mandated ADR

Most states (and about half the federal courts) have adopted programs to encourage the parties to settle their disputes through ADR.

Some courts require parties to submit to ADR before proceeding to trial.

Court-Annexed Arbitration

Some states require the parties to undergo non-binding arbitration before proceeding to trial.

Note that in court-annexed arbitration, either party may reject the award.

Court-Related Mediation

ADR Around the Globe

Other countries also encourage mediation, arbitration, and other forms of ADR. Examples:– Japan has recently authorized neutral panels to act as

mediators in product liability suits.– China passed an arbitration law in 1995 that spells out

what types of disputes are arbitrable, the form and content of valid arbitration clauses, etc., all of which should make it simpler for disputes to be settled through ADR. Article on China as Location for arbitration.