Chapter 6 Civil Litigation and Its Alternatives Litigation

Chapter 6 Civil Litigation and Its Alternatives

Litigation v. Alternative Dispute Resolution o What is litigation? o Alternative approaches to litigation o Alternative Dispute Resolution (ADR) 2

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. 3

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. 4

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. 5

Assisted Negotiation o Mini-Trial: Attorneys for each side informally present their case before a mutually agreed-upon neutral 3 rd party (e. g. , a retired judge) who renders a non-binding “verdict. ” This facilitates further discussion and settlement. o Expert evaluations. o Conciliation: 3 rd party assists in reconciling differences. 6

Mediation o Involves a neutral 3 rd 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. 7

Arbitration o Many labor contracts have binding arbitration clauses. o Settling of a dispute by a neutral 3 rd 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 8

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. 9

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. 10

Setting Aside an Award o o Award result of fraud or corruption. Arbitrator bias. Arbitrator abuse of discretion. Arbitrator exceeded powers. 11

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. 12

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. 13

Stages of Litigation o o o o Informal Negotiations. Pleadings. Service of Process. Defendant’s Response. Discovery. Pre-Trial. Post-Trial. 14

Litigation- Pleadings 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Post 15

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 parties o 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 16

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. 17

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. 18

Pleadings-Answer o Defendant’s Answer: o May state General Denial. o Move for Change of Venue. o Allege Affirmative Defenses. o Counter Claim against Plaintiff. 19

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 20

Judgments Before Trial o Motions for Summary Judgment o Federal Rules of Civil Procedure 56 o 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 and o The moving party is entitled to a judgment as a matter of law o The court will grant the motion and enter judgment for the moving party 21

Litigation- Discovery 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Post 22

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. 23

Litigation- Pre-Trial 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Post 24

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). 25

Litigation- Trial 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Post 26

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. 27

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. 28

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; and o Selection of Alternate Jurors. 29

The Trial [4] o Opening Statements (Plaintiff first). o Plaintiff’s Case--Evidence: o Witnesses- Direct examination vs. Cross X and Redirect o 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. 30

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. 31

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. 32

Litigation- Post Trial 1 st 2 nd 3 rd 4 th 5 th Pleadings // Discovery // Pre-Trial // Post 33

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). 34

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. 35

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. 36