Chapter 3Chapter 3

Trials and Trials and Resolving Resolving DisputesDisputes

Chapter IssuesChapter Issues

• Basic Trial Procedures Basic Trial Procedures • Procedures and Processes of Litigating a Procedures and Processes of Litigating a

DisputeDispute• Remedies in Civil LitigationRemedies in Civil Litigation• Appellate StageAppellate Stage• Alternative Dispute Resolution (ADR)Alternative Dispute Resolution (ADR)

– ArbitrationArbitration– Negotiation-SettlementNegotiation-Settlement– MediationMediation– Other forms of ADROther forms of ADR

The Judicial SystemThe Judicial System• The court system is The court system is

adversarial in natureadversarial in nature

• Parties have the Parties have the responsibility for bringing a responsibility for bringing a lawsuit, shaping issues and lawsuit, shaping issues and presenting evidencepresenting evidence

• Court applies legal rules to Court applies legal rules to facts presentedfacts presented

• Trials are often costly and Trials are often costly and uncertainuncertain

• Juries tend to be less Juries tend to be less sympathetic to businessessympathetic to businesses

Basic Trial Procedures

• Pleading Stage

• Discovery Stage

• Pretrial Stage

• Trial Stage

• Appellate Stage

• Enforcement Stage

• See Exhibit 3.2

The Pleadings StageThe Pleadings Stage

PLAINTIFF FILES:

• Complaint• Notice of lawsuit given by service of process by summons

DEFENDANT FILES:

• Responses to Complaint– Motion to Dismiss (Demurrer)– Answer (may include affirmative defenses)– Counterclaim

Discovery StageDiscovery Stage(Legal Tools to Obtain Evidence)(Legal Tools to Obtain Evidence)

• Purposes to Purposes to

–1) preserve evidence, 1) preserve evidence,

–2) limit element of surprise, 2) limit element of surprise,

–3) encourage settlement3) encourage settlement

DISCOVERY TOOLS

• Depositions of parties and witnesses Depositions of parties and witnesses (including experts)(including experts)

• Interrogatories of the partiesInterrogatories of the parties

• Use of Expert WitnessesUse of Expert Witnesses

• Requests for AdmissionsRequests for Admissions

• Orders of Production of DocumentsOrders of Production of Documents

• Physical/Mental ExaminationsPhysical/Mental Examinations

Pretrial StagePretrial Stage

• Summary JudgmentSummary Judgment—either party may —either party may requestrequest

• Pretrial ConferencePretrial Conference—either party may —either party may requestrequest– Usually attorneys and judge attendUsually attorneys and judge attend– Simplify issuesSimplify issues– Plan course of the trialPlan course of the trial– Judges’ often encourage parties to reach out-of-Judges’ often encourage parties to reach out-of-

court settlementcourt settlement

Jury SelectionJury Selection

• 66thth and 7 and 7thth Amendments gives right to Amendments gives right to a a juryjury in certain casesin certain cases

• If no use of jury, judge becomes trier of factIf no use of jury, judge becomes trier of fact• Selection of jury involvesSelection of jury involves voir direvoir dire• Attorneys allowed limited number of Attorneys allowed limited number of

challenges to reject prospective jurors challenges to reject prospective jurors without stating reasonwithout stating reason

• Usually 12 persons on jury panelUsually 12 persons on jury panel• Some states have fewer—such as 6 jurorsSome states have fewer—such as 6 jurors

Trial StageTrial Stage

• Opening StatementsOpening Statements by attorneys by attorneys• Presentation of Direct TestimonyPresentation of Direct Testimony• Closing argumentsClosing arguments• Instructions to Jury (Instructions to Jury (also called also called chargescharges))• VerdictVerdict by jury. Judgment may be set aside for by jury. Judgment may be set aside for jury jury

misconduct.misconduct.• Motions For A VerdictMotions For A Verdict

– Motion For A Directed Verdict/Motion For Judgment As A Motion For A Directed Verdict/Motion For Judgment As A Matter of LawMatter of Law

• Cases have been presented, but before going to jury, Cases have been presented, but before going to jury, either party requests entering judgment in its favoreither party requests entering judgment in its favor

– Motion for Judgment As A Matter of Law/Motion For Motion for Judgment As A Matter of Law/Motion For Judgment Notwithstanding the Verdict (N.O.V.)Judgment Notwithstanding the Verdict (N.O.V.)

Remedies in Civil LitigationRemedies in Civil Litigation(See Exhibit 3.4)(See Exhibit 3.4)

• Equitable Equitable remediesremedies– Specific Specific

performanceperformance– InjunctionInjunction

• PermanentPermanent• TemporaryTemporary

• Monetary Monetary damagesdamages– CompensatoryCompensatory– Punitive or Punitive or

exemplaryexemplary– NominalNominal

Appellate StageAppellate Stage (Appeal Based on Error of Law)(Appeal Based on Error of Law)

• Arguments before the Arguments before the courtcourt– Written BriefsWritten Briefs– Oral ArgumentsOral Arguments

• Decisions by the courtDecisions by the court– Majority opinionMajority opinion– Concurring opinionsConcurring opinions– Dissenting opinionsDissenting opinions

• Outcomes of Outcomes of decisionsdecisions– AffirmedAffirmed– ModifiedModified– ReversedReversed– RemandedRemanded

Enforcement StageEnforcement Stage

• If no further appeal is If no further appeal is available, judgment available, judgment becomes finalbecomes final

• It is It is res judicata res judicata

• Enforcement of judgment is Enforcement of judgment is through through writ of executionwrit of execution

• Court orders an official (i.e. Court orders an official (i.e. sheriff) to satisfy judgment sheriff) to satisfy judgment through an act (such as through an act (such as seizure of property, seizure of property, garnishment, etc.)garnishment, etc.)

ARBITRATIONARBITRATION

• Cheaper, faster, and often considered more fair

• Neutral 3rd party – usually an expert

• Arbitrator’s decision is binding

• Arbitration decision is final and matter usually cannot be litigated again or appealed

• Uniform Arbitration Act (UAA) upholds the integrity of this process

The Arbitration ProcessThe Arbitration Process

• Decided at time of making the contract or after dispute arises

• Begins when party files a submission • Parties agree on arbitrator(s)• The hearing procedure

– Closed door– Less evidentiary formality– Good faith cooperation required

Voluntary and Compulsory Voluntary and Compulsory ArbitrationArbitration

• Labor Contracts– Unions– Insurance contracts– Stockbrokers– Pro-baseball, football

Public Sector EmploymentPolice officersFirefightersPublic school teachers

NegotiationNegotiation

• Least formal form of ADR• Parties decide to settle matter

between themselves• Often use lawyers or

representatives, though not required– Lawyers, etc. are agents of

the parties of the dispute• Negotiated settlement is

usually a contract, which is enforceable, like other contracts, by the courts

MediationMediation

• 3rd neutral person (mediator) assists the parties of the dispute

• Parties mutually decide on a resolution

• Mediator makes suggestions• Mediator’s suggestions are

NOT BINDING on the parties• Parties may go to trial after

this ADR• Mediation often helps to

maintain the relationship between the parties