Chapter 6Civil Litigation and Its Alternatives
Litigation v. Alternative Dispute Resolution
o What is litigation?o Alternative approaches to
litigationo Alternative Dispute Resolution
(ADR)
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Search for Alternatives to Litigation
o Trials are a means of dispute resolution that are very expensive and sometimes take many months to resolve.
o There are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved.
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ADR
o ADR describes any procedure or device for resolving disputes other than the traditional judicial process.
o Unless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets.
o Most common: negotiation, mediation, arbitration.
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Negotiation and Mediation
o Less than 10% of cases reach trial.
o 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.
o Successful negotiation involves thorough preparation, from a position of strength.
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Assisted Negotiation
o Mini-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.
o Expert evaluations.o Conciliation: 3rd party assists
in reconciling differences.
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Mediation
o Involves a neutral 3rd party (mediator).
o Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.”o Advantages: few rules, customize
process, parties control results (win-win).
o Disadvantages: mediator fees, no sanctions or deadlines.
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Arbitration
o Many labor contracts have binding arbitration clauses.
o Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.
o More formal than negotiation or mediation – similar to trial
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Arbitration Process
o Contracts include a binding arbitration clause or through a submission agreement.
o Case begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award.
o Courts are not involved in arbitration unless an arbitration clause in a contract needs enforcement.
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Setting Aside an Arbitration Award
o Losing party may appeal the decision to a court.
o Winning party may ask a court to enforce the award.
o Court’s role is limited to determining whether a valid award exists
o Facts and legal conclusions are usually final.
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Setting Aside an Award
o Award result of fraud or corruption.
o Arbitrator bias.o Arbitrator abuse of discretion.o Arbitrator exceeded powers.
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Disadvantages of Arbitration
o Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence.
o Arbitrators do not have to issue written opinions.
o Generally, no discovery available.
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Introduction to a Civil Lawsuit
o “Road to justice” in civil lawsuit can consume much time and money – may not conclude for several years due to delays, appeals, etc.; attorney’s fees and costs may be in 10’s of 1,000’s even in average case.
o Cost/benefit analysis – probability of winning; expense vs. relief; value of early settlement.
o 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.
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Stages of Litigation
o Informal Negotiations.o Pleadings.o Service of Process.o Defendant’s Response.o Discovery.o Pre-Trial.o Trial.o Post-Trial.
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Litigation- Pleadings
1st1st 2nd 3rd 4th2nd 3rd 4th 5th5th PleadingsPleadings // // Discovery // Pre-Trial // Trial // PostDiscovery // Pre-Trial // Trial // Post
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Pleadings
o Accident, breach of contract or other incident(s) – may be one event or series of events over days, weeks, months or years.
o Party consults with attorney – initial client interview; review facts, documents, etc.; signing of retainer agreement; evaluate deadlines such as statute of limitations.
o Informal investigation and/or settlement negotiations prior to lawsuit; note that investigation and negotiation can happen at any time during lawsuit.
o Exhaust administrative remedies (will be applicable in cases vs. gov’t only) – can have quick deadlines.
o Filing of complaint and summons issued – o complaint specifies partieso ultimate facts in support of causes of action (what
happened?) and relief sought (prayer); o summons is pre-printed form identifying parties, court’s and
plaintiff’s attorney’s contact information, and admonition to respond within certain time.
o Sample complaint: Page 114
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Pleadings-Service of Process
o Defendant served with Complaint and Summons.
o Court acquires Personal Jurisdiction over Defendant (person or corporation).
o Corporate Defendants are served via Registered Agent.
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Pleadings-Answer
o The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.
o In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.
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Pleadings-Answer
oDefendant’s Answer:
oMay state General Denial.
oMove for Change of Venue.
oAllege Affirmative Defenses.
oCounter Claim against Plaintiff.
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Dismissal and Judgments Before Trial
o Defendant can move the Court to dismiss the Action for various reasons, such as: o The Court lacks jurisdiction.o 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).
o Court looks only at facts in Complaint
o Known as Motion to Dismiss – Rule 12
o If Defendant fails to answer, a default judgment can be entered
Judgments Before Trial
o Motions for Summary Judgment o Federal Rules of Civil Procedure 56o Court considers additional evidence
presented in documents other than pleadings, including depositions, answers to interrogatories, admissions and affidavits
o If all documents show that o There is no genuine issue as to any
material fact ando The moving party is entitled to a
judgment as a matter of lawo The court will grant the motion and
enter judgment for the moving party
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Litigation- Discovery
1st 1st 2nd2nd 3rd 4th 5th 3rd 4th 5th Pleadings // Pleadings // DiscoveryDiscovery // Pre-Trial // Trial // Post // Pre-Trial // Trial // Post
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Discovery
o Discovery is the process by which parties obtain information from the opposing party prior to trial. Various tools are used:o Depositions & Interrogatories.
o Deposition: sworn testimony taken outside the courtroom
o Interrogatories: written questions sent by one party that another party must answer in writing
o Requests for Admissions.o Requests for Production of
Documents and Objects.
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Litigation- Pre-Trial
1st 1st 2nd 2nd 3rd3rd 4th 5th 4th 5th Pleadings // Discovery // Pleadings // Discovery // Pre-TrialPre-Trial // Trial // Post // Trial // Post
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Litigation-Pre-Trial
o Mediation-Arbitration.o Settlement Conference
o Disposition Without Trial:o Default Judgments.o Dismissals (With/Without Prejudice).o Summary Judgment.o Settlement.
o Pre-Trial Orders (ex:TRO, In Limine).
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Litigation- Trial
1st 1st 2nd 3rd 2nd 3rd 4th4th 5th 5th Pleadings // Discovery // Pre-Trial // Pleadings // Discovery // Pre-Trial // TrialTrial // Post // Post
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The Trial
o Trial is fundamentally an evidence presentation and authentication procedure.
o To prevail, Plaintiff must introduce a preponderance of competent, relevant evidence with respect to each disputed allegation in order to prove it.
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The Trial [2]
o The Defendant will attempt to introduce a preponderance of competent evidence to disprove at least one of the disputed allegations.
o Hearsay is inadmissible.
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The Trial [3]
o Bench Trial (no jury).o Jury Selection process
involves:o Voir Dire;o Peremptory Challenges;o Challenges to biased jurors;o Pick and Impanel the Jury; ando Selection of Alternate Jurors.
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The Trial [4]
o Opening Statements (Plaintiff first).
o Plaintiff’s Case--Evidence:o Witnesses- Direct examination
vs. Cross X and Redirecto Admissibility 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.
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The Trial [5]
o Plaintiff’s Case (cont’d). o Party may impeach the testimony or
credibility of opposing witness by showing prior inconsistent statements and/or perjury.
o Defendant’s Case is next. o Closing Arguments (Plaintiff first).
o Jury Instructions, Deliberations and Verdict.
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The Trial [6]
o Jury’s Verdict:o 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.
o Civil Cases—generally, burden of proof is by “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.
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Litigation- Post Trial
1st 1st 2nd 3rd 4th 2nd 3rd 4th 5th 5th Pleadings // Discovery // Pre-Trial // Trial // Pleadings // Discovery // Pre-Trial // Trial // PostPost
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Post Trial
o Judgment: Jury verdict is entered by the Clerk of Court.
o A party may move for a New Trial.
o A party may file a Motion for Judgment N.O.V..
o Sentencing (criminal).
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Post Trial-Appeal
o A party may appeal not only the jury’s verdict but any legal issue, motion or court ruling during the trial.
o 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 Appellant’s behalf.
o Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.
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Post Trial-Enforcement
o Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms.
o Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.
