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

15
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”)

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

Page 1: 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.

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”)

Page 2: 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.

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.

Page 3: 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.

Using Courts to Resolve Disputes

• What court? (Jurisdiction)

• How does the court system work? (Civil Procedure)

Page 4: 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.

What Court

• The Federal Court System?

• The State Court Systems? (really 50)

Page 5: 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.

Jurisdiction

3 Concepts of Jurisdiction

• Court Jurisdiction (political boundaries)

• Personal Jurisdiction

• Subject Matter Jurisdiction

Page 6: 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.

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

Page 7: 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.

Court Jurisdiction

Federal Court State #1 Court State #2Court

Concurrent Federal Jurisdiction

Exclusive Federal

Jurisdiction

Exclusive State

Jurisdiction

Page 8: 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.

What Type of Court?

• Courts of Limited versus General Jurisdiction

• Trial versus appellate courts

This is really all “Subject Matter Jurisdiction”

Page 9: 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.

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

Page 10: 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.

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

Page 11: 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.

The Jurisdiction Triangle

Court Juris

S/M Juris

Personal Juris

Page 12: 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.

Trials

Formal procedure is followed

Text is great in this area

Page 13: 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.

Appeals

• Not always mandatory that court must take it

• Scope of review

• Errors of law- yes• Errors of fact- no*

Page 14: 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.

Alternative Dispute Resolution

• Solving a dispute by reaching mutual agreement is always better than relying upon civil court system.

• Negotiation

• Mediation

• Arbitration

• Arbitration clauses

Page 15: 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.

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