Chapter 2 Courts and Alternative Dispute Resolution 2004

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Chapter 2 Courts and Alternative Dispute Resolution © 2004 West Legal Studies in Business

Chapter 2 Courts and Alternative Dispute Resolution © 2004 West Legal Studies in Business A Division of Thomson Learning 1

§ 1: The Judiciary’s Role In American Government Judicial Review was established by the

§ 1: The Judiciary’s Role In American Government Judicial Review was established by the U. S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote: “It is emphatically the province and duty of the judiciary to say what the law is…. ” © 2004 West Legal Studies in Business A Division of Thomson Learning 2

§ 2: Basic Judicial Requirements Jurisdiction: “Juris” (law) “diction” (to speak) is the power

§ 2: Basic Judicial Requirements Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute. © 2004 West Legal Studies in Business A Division of Thomson Learning 3

Jurisdiction Over Persons üPower of a court to compel the presence of the parties

Jurisdiction Over Persons üPower of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate. üCourts use long-arm statutes for non-resident parties based on “minimum contacts” with state. § Case 2. 1: Cole v. Mileti (1998). © 2004 West Legal Studies in Business A Division of Thomson Learning 4

Jurisdiction Over Property ü Also called “in rem” jurisdiction. üPower to decide issues relating

Jurisdiction Over Property ü Also called “in rem” jurisdiction. üPower to decide issues relating to property, whether the property is real, personal, tangible, or intangible. üA court generally has in rem jurisdiction over any property situated within its geographical borders. © 2004 West Legal Studies in Business A Division of Thomson Learning 5

Subject Matter Jurisdiction üThis is a limitation on the types of cases a court

Subject Matter Jurisdiction üThis is a limitation on the types of cases a court can hear, usually determined by federal or state statutes. üFor example, bankruptcy, family or criminal cases. üGeneral (unlimited) jurisdiction üLimited jurisdiction © 2004 West Legal Studies in Business A Division of Thomson Learning 6

Original and Appellate Jurisdiction üCourts of original jurisdiction is where the case started (trial).

Original and Appellate Jurisdiction üCourts of original jurisdiction is where the case started (trial). üCourts of appellate jurisdiction have the power to hear an appeal from another court. © 2004 West Legal Studies in Business A Division of Thomson Learning 7

Federal Court Jurisdiction ü“Federal Question” cases in which the rights or obligations of a

Federal Court Jurisdiction ü“Federal Question” cases in which the rights or obligations of a party are created or defined by some federal law. ü“Diversity” cases where: § The parties are not from the same state, and § The amount in controversy is greater than $75, 000. © 2004 West Legal Studies in Business A Division of Thomson Learning 8

Exclusive vs. Concurrent Jurisdiction üExclusive: only one court (state or federal) has the power

Exclusive vs. Concurrent Jurisdiction üExclusive: only one court (state or federal) has the power (jurisdiction) to hear the case. üConcurrent: more than one court can hear the case. © 2004 West Legal Studies in Business A Division of Thomson Learning 9

Jurisdiction in Cyberspace ü“Sliding Scale” Standard Passive Website No Yes Substantial Business Interaction üCase

Jurisdiction in Cyberspace ü“Sliding Scale” Standard Passive Website No Yes Substantial Business Interaction üCase 2. 2 Bird v. Parsons © 2004 West Legal Studies in Business A Division of Thomson Learning 10

Venue üVenue is concerned with the most appropriate location for the trial. üGenerally, proper

Venue üVenue is concerned with the most appropriate location for the trial. üGenerally, proper venue is whether the injury occurred. © 2004 West Legal Studies in Business A Division of Thomson Learning 11

Standing üIn order to bring a lawsuit, a party must have “standing” to sue.

Standing üIn order to bring a lawsuit, a party must have “standing” to sue. üStanding is sufficient “stake” in the controversy; party must have suffered a legal injury. üCase 2. 3: High Plains Wireless LP vs. FCC (2002) © 2004 West Legal Studies in Business A Division of Thomson Learning 12

§ 3: State and Federal Courts Texas Courts Ct. Criminal Appeals Federal Courts Supreme

§ 3: State and Federal Courts Texas Courts Ct. Criminal Appeals Federal Courts Supreme Court of Appeals District Court County Court Municipal Court © 2004 West Legal Studies in Business A Division of Thomson Learning Justice Court U. S. Supreme Court Circuit Courts of Appeals U. S. District Court 13

Trial Courts ü“Courts of record”-court reporters. üOpening and closing arguments. üJuries are selected. üEvidence,

Trial Courts ü“Courts of record”-court reporters. üOpening and closing arguments. üJuries are selected. üEvidence, such as witness testimony, physical objects, documents, and pictures, is introduced. üWitnesses are examined and cross-examined. üVerdicts and Judgments are rendered. © 2004 West Legal Studies in Business A Division of Thomson Learning 14

Appellate Courts üMiddle level of the court systems. üReview proceedings conducted in the trial

Appellate Courts üMiddle level of the court systems. üReview proceedings conducted in the trial court to determine whether the trial was according to the procedural and substantive rules of law. üGenerally, appellate courts will consider questions of law, but not questions of fact. © 2004 West Legal Studies in Business A Division of Thomson Learning 15

Courts of Appeal © 2004 West Legal Studies in Business A Division of Thomson

Courts of Appeal © 2004 West Legal Studies in Business A Division of Thomson Learning 16

Supreme Courts üAlso known as courts of last resort. üThe two most fundamental ways

Supreme Courts üAlso known as courts of last resort. üThe two most fundamental ways to have your case heard in a supreme court are: § Appeals of Right. § By Writ of Certiorari. üSee the U. S. Supreme Court (official site) and the Texas Supreme Court. © 2004 West Legal Studies in Business A Division of Thomson Learning 17

§ 4: Alternative Dispute Resolution üTrials are a means of dispute resolution that are

§ 4: Alternative Dispute Resolution üTrials are a means of dispute resolution that are very expensive and sometimes take many months to resolve. üThere are “alternative dispute resolution” (ADR) methods to resolve disputes that are inexpensive, relatively quick and leave more control with the parties involved. © 2004 West Legal Studies in Business A Division of Thomson Learning 18

ADR üADR describes any procedure or device for resolving disputes other than the traditional

ADR üADR describes any procedure or device for resolving disputes other than the traditional judicial process. üUnless court-ordered, there is no record which is an important factor in commercial litigation due to trade secrets. üMost common: negotiation, mediation, arbitration. © 2004 West Legal Studies in Business A Division of Thomson Learning 19

Negotiation üLess than 10% of cases reach trial. üNegotiation is informal discussion of the

Negotiation üLess than 10% of cases reach trial. üNegotiation 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. üSuccessful negotiation involves thorough preparation, from a position of strength. © 2004 West Legal Studies in Business A Division of Thomson Learning 20

Assisted Negotiation üMini-Trial: Attorneys for each side informally present their case before a mutually

Assisted Negotiation üMini-Trial: Attorneys for each side informally present their case before a mutually agreedupon neutral 3 rd party (e. g. , a retired judge) who renders a non-binding “verdict. ” This facilitates further discussion and settlement. üExpert evaluations. üConciliation: 3 rd party assists in reconciling differences. © 2004 West Legal Studies in Business A Division of Thomson Learning 21

Mediation üInvolves a neutral 3 rd party (mediator). üMediator talks face-to-face with parties (who

Mediation üInvolves a neutral 3 rd party (mediator). üMediator 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. © 2004 West Legal Studies in Business A Division of Thomson Learning 22

Arbitration üMany labor contracts have binding arbitration clauses. üSettling of a dispute by a

Arbitration üMany labor contracts have binding arbitration clauses. üSettling of a dispute by a neutral 3 rd party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official. § Recall the 1997 UPS strike when US. Labor Secretary Alexis Herman helped arbitrate the strike. © 2004 West Legal Studies in Business A Division of Thomson Learning 23

Arbitration Disadvantages üResults may be unpredictable because arbitrators do not have to follow precedent

Arbitration Disadvantages üResults may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence. üArbitrators do not have to issue written opinions. üGenerally, no discovery available. © 2004 West Legal Studies in Business A Division of Thomson Learning 24

Arbitration Process üCase begins with a submission to an arbitrator. Next comes the hearing

Arbitration Process üCase begins with a submission to an arbitrator. Next comes the hearing where parties present evidence and arguments. Finally, the arbitrator renders an award. üCourts are not involved in arbitration unless an arbitration clause in a contract needs enforcement. © 2004 West Legal Studies in Business A Division of Thomson Learning 25

Providers of ADR Services üNon-profit organizations: § American Arbitration Association. § Better Business Bureau.

Providers of ADR Services üNon-profit organizations: § American Arbitration Association. § Better Business Bureau. üFor Profit: § JAMS-ADR. com(Flash enabled). © 2004 West Legal Studies in Business A Division of Thomson Learning 26

§ 5: Online Dispute Resolution üAlso called ODR üUses the Internet to resolve disputes.

§ 5: Online Dispute Resolution üAlso called ODR üUses the Internet to resolve disputes. üStill in its infancy but is gaining momentum. üSee, e. g. , www. cybersettle. com. © 2004 West Legal Studies in Business A Division of Thomson Learning 27

§ 6: International Dispute Resolution üForum Selection and Choice-of-Law clauses in contracts govern the

§ 6: International Dispute Resolution üForum Selection and Choice-of-Law clauses in contracts govern the transaction. üArbitration clauses are generally incorporated into international contracts. © 2004 West Legal Studies in Business A Division of Thomson Learning 28

Law on the Web ü U. S. Supreme Court ü OYEZ, OYEZ website ü

Law on the Web ü U. S. Supreme Court ü OYEZ, OYEZ website ü Federal Courts ü National Center for State Courts ü American Arbitration Association ü ODR: Clicknsettle. com, Cybersettle. com, Squaretrade. com ü Legal Research Exercises on the Web © 2004 West Legal Studies in Business A Division of Thomson Learning 29