Chapter 3: Courts and Alternative Dispute Resolution

I.

The Judiciarys Role in American Government

Body of American law includes: federal and state constitutions, statutes passed by
legislative bodies, administrative law, and the case decisions and legal principles that
form the common law
Essential role of the judiciary the courts in the American governmental system: to
interpret and apply the law

A.

Judicial branch can decide whether the laws or actions of the other two branches are
constitutional
o This process is called judicial review
Judicial Review: def.: the process by which a court decides on the constitutionality of
legislative enactments and actions of the executive branch
o In line with the checks and balances

B.

II.

Judicial Review

The Origins of Judicial Review in the United States

Courts had already overturned state legislature before judicial review

Alexander Hamilton and James Madison saw its importance
Marbury v. Madison appointments of judges

Basic Judicial Requirements

Before a court can hear a lawsuit, you need requirements:

o Jurisdiction, venue, and standing to sue

A.

Jurisdiction

Juris means law and diction means to speak.

Jurisdiction: def.: the authority of a court to hear and decide a specific case
The court must have jurisdiction over:
o The person (or company) against whom the suit is brought (the defendant) or
o The property involved in the suit. and
o The subject matter of the dispute
1.

Jurisdiction over Persons or Property

Court can exercise personal jurisdiction (in personam jurisdiction) over any person or
business that resides in a certain geographic area

o State trial court has jurisdiction over residents or businesses in a particular area of
the state, such as county or district
o State Supreme Court (or highest court) has jurisdiction over all residents of that
state
Jurisdiction over property located within its boundaries
o This is known as in rem jurisdiction
a)

Long arm statute: def.: a state statute that permits a state to exercise jurisdiction over
nonresident defendants
o A court can exercise jurisdiction over certain out-of-state defendants based on
activities that took place within that state
The court must be convinced that the defendant had sufficient contacts, or minimum
contacts, with the state to justify jurisdiction
o The defendant must have enough of a connection to the state for the judge to
conclude that it is fair for the state to exercise power over the defendant
A state may exercise personal jurisdiction over a nonresident defendant who is sued for
breach of contract that was formed within the state, even when that contract was
negotiated over the phone or through correspondence
b)

Corporate Contacts

Corporations are legal persons so the courts use the same jurisdiction principles
Corporation is normally subject to the jurisdiction in the state in which it is incorporated,
has its principal office, and is doing business
o Courts apply minimum contacts test to determine if they can exercise jurisdiction
with out of-state corporations
- Minimum contacts if the corporation advertises or sells its products within
the state, or places its goods into the stream of commerce with the intent
that the goods be sold in the state
2.

Long Arm Statutes

Jurisdiction over Subject Matter

Is a limitation on the types of cases a court can hear

o In both federal and state court systems, there are courts of general (unlimited)
jurisdiction and courts of limited jurisdiction
General jurisdiction:
o State trial court or a federal district court
State court of limited jurisdiction is a probate court.
o Probate court: def.: a state court of limited jurisdiction that conducts proceedings
relating to the settlement of a deceased persons estate
Federal court of limited jurisdiction is a bankruptcy court

o Bankruptcy court: def.: a federal court of limited jurisdiction that handles only
bankruptcy proceedings, which are governed by federal bankruptcy law
Courts jurisdiction is usually defined in the statute or constitution creating the court
Courts subject matter jurisdiction can be limited not only by the subject of the lawsuit but
also by the amount in controversy, by whether a case is a felony (a more serious type of
crime) or a misdemeanor (a less serious type of crime), or by whether the proceeding is a
trial or an appeal
3.

The distinction between the two normally lies in whether the case is being heard for the
first time
Original courts are courts of the first instance, or trial courts courts in which lawsuits
begin, trials take place, and evidence is presented
o In the federal court system, the district courts are trial courts
Appellate jurisdiction act as reviewing courts
o Cases can be brought only on appeal from an order or judgment of a trial court or
other lower court
4.

Original and Appellate Jurisdiction

Jurisdiction of the Federal Courts

Jurisdiction of the federal courts is limited

Subject matter jurisdiction in two situations
a)

Plaintiffs cause of action is based, at least in part, on the U.S. Constitution, a treaty, or a
federal law, then a federal question arises, and the federal courts have jurisdiction
Federal question: def.: a question that pertains to the U.S. Constitution, an act of
Congress, or a treaty and provides a basis for federal jurisdiction in a case
o Any lawsuit with a federal question can originate in a federal court
- A federal court will apply federal law
b)

Federal Questions

Diversity of Citizenship

Federal district courts also exercise original jurisdiction over cases involving diversity of
citizenship
Diversity of citizenship: def.: a basis for federal court jurisdiction over a lawsuit between
citizens of different states and countries
Two requirements:
1. The plaintiff and defendant must be residents of different states
2. The dollar amount in controversy must exceed $75,000
Corporation is both a citizen of the state it is incorporated and the state in which it
principal place of business is located

o Case involving diversity of citizenship is filed in appropriate federal district court

If case starts in a state court, it can sometimes be transferred, or removed to a federal
court
Law applied will be federal law for federal questions. For diversity of citizenship a
federal court will apply the relevant state law
5.

When both federal and state courts have the power to hear a case concurrent jurisdiction
occurs
Concurrent jurisdiction: def.: jurisdiction that exists when two different courts have the
power to hear a case
When cases can be tried only in federal court or only in state courts, exclusive
jurisdiction exists
Exclusive Jurisdiction: def.: jurisdiction that exists when a case can be heard only in a
particular court or type of court
Federal courts have exclusive jurisdiction in cases involving federal crimes, bankruptcy,
patents, and copyrights; in suits against the U.S.; and in some areas of admiralty law
(ocean laws)
State courts have exclusive jurisdiction divorce and adoption
Concurrent jurisdiction exists, a party may bring a suit in either a federal court or a state
court
Factors to decide are availability of different remedies, the distance to the respective
courthouses, or the experience or reputation of a particular judge
o Trade secret federal court which has exclusive jurisdiction over copyrights,
trademarks, patents
o Resident of another state might choose federal court because the state court judge
might be biased with his own resident

B.

Jurisdiction in Cyberspace

For a court to compel a defendant to come before it there must be at least minimum
contacts
1.

Exclusive versus Concurrent Jurisdiction

The Sliding Scale Standard

For determining when the exercise over an out of state defendant is proper
Three types of Internet business contacts: (JURISDICTION)
1. Substantial business conducted over the internet (with contracts and sales, for
example) (PROPER)
2. Some interactivity through a web site (IMPROPER)
3. Passive advertising (MAY OR MAY NOT)
**Internet communication is passive if people have to voluntarily access it to read it and
active if it sent to specific individuals

In certain situations, even a single contact can satisfy the minimum contacts requirement
2.

Internet is global raising international jurisdiction issues

Worlds courts seem to be following minimum contacts requirement
A business firm has to comply with the laws in any jurisdiction in which it targets
customers for its products
o Complication is that laws in different countries differ to varying capacities

C.

III.

Venue

Venue: def.: the geographic district in which a legal action is tried and from which the
jury is selected
o The most appropriate physical location for a trial
o Convenience is also important
Reflects the policy that a court trying a suit should be in the geographic neighborhood
(usually the county) where the incident occurred or where the parties involved in the
lawsuit reside
**Civil case usually where the defendant resides
**Criminal case where the crime occurred
Pretrial publicity might require a change of venue especially if right to a fair and
impartial trial has been impaired

D.

International Jurisdictional Issues

Standing to Sue

Standing to sue: def.: the legal requirement that an individual must have a sufficient stake
in a controversy before he or she can bring a lawsuit
o Party must have legally protected and tangible interest at stake in litigation
o Party must have suffered harm or have been threatened by harm as a result of
action in the lawsuit
Justiciable controversy: def.: a controversy that is not hypothetical or academic but real
and substantial; a requirement that must be satisfied before a court will hear a case
Person may be standing to sue for another person such as a minor or a mentally
incompetent person

The State and Federal Court Systems

52 court systems 50 states, D.C. and a federal system
Federal court system is structured

A.

The State Court Systems

State courts may include

o Trial courts of limited jurisdiction
o Trial courts of general jurisdiction
o Appellate courts
o States highest court (usually State Supreme Court)
Any person party to a lawsuit has the opportunity to plead before a trial court and if
guilty before at least one appellate court
o If federal then the appeal can go up to the U.S. Supreme Court
Some states judges are elected some are appointed. Also state decides the years a judge
will serve
Judges in federal system are appointed by the president with approval from the senate for
life or retirement
1.

Courts in which trials are held and testimony taken

o State general jurisdiction trial courts county, district, superior, or circuit courts
- Jurisdiction determined by size of county
- Wide variety of topics both civil disputes and criminal prosecutions
o Limited jurisdiction special inferior trial courts or minor judiciary courts
Small claims courts: def.: a special court in which parties can litigate small claims
without an attorney
o Involving less than a certain amount, such as $5000 (varies by state)
o Conducted informally
Inferior trial court is a local municipal court that hears mainly traffic cases
o Both small claims and municipal may be appealed to state trial court of general
jurisdiction
Limited jurisdiction courts: domestic relations or family courts, probate courts
Some states have Islam courts
2.

Trial Courts

Appellate, or Revising, Courts

Every state has at least one court of appeals which may be the intermediate court or the
states highest court
Panel of three or more judges reviews records of cases on appeal, which includes
transcript of the trial proceedings, and determines whether the trial court committed an
error
a)

Focus on Questions of Law

Appellate courts generally focus on questions of law not on questions of fact

Questions of fact: def.: in a lawsuit, an issue that involves only disputed facts, and not
what the law is on a given moment
o Whether a party actually burned a flag

Question of law: def.: in a lawsuit, an issue involving the application or interpretation of

a law
o Whether flag burning is a form of speech protected by the first amendment
b)

Appellate courts usually defer to a trials courts findings on questions of fact because the
trial court judge and jury were in a better position to evaluate testimony
They will challenge a trial courts findings of fact only when the finding is clearly
erroneous or when there is no evidence to support the finding
c)

The Federal Court System

Three tiered:
1. U.S. district courts (trial courts of general jurisdiction) and various courts limited
jurisdiction
2. U.S. court of appeals (intermediate court of appeals)
3. The United States Supreme Court
Federal judges are appointed by the president and approved by the senate
o Life terms
1.

U.S. District Courts

The federal district court is the equivalent of a state trial court

o At least one in every state
o Judicial districts can vary over time due to population changes and corresponding
caseloads
Federal cases usually originate in district courts
2.

Highest State Courts

Usually called the supreme court

**Decisions reached by each states highest court on state law is final
Issues of federal law are involved then it can be overruled by the U.S. Supreme Court

B.

Defer to the Trial Courts Findings of Fact

U.S. Court of Appeals

13 courts of appeals (known as the U.S. circuit court of appeals)

12 - They hear appeals from their district courts located within their judicial circuits
The 13th national appellate court has national jurisdiction over certain types of cases, such
as patent law cases and cases where U.S. is defendant

3.

The United States Supreme Court

The highest federal level court

Only 1
All other courts inferior
Has 9 justices
Rarely does it have trial jurisdiction. It is mostly all appeals cases
Can review any case by the federal courts and some by the state courts
a)
Appeals to the Supreme Court
To bring a case to the Supreme Court, a party must request that the court issue a writ of
certiorari
Writ of certiorari: def.: a writ from a higher court asking a lower court for the record of a
case
Rule of four: def.: rule of the U.S. supreme court under which the court will not issue a
writ of certiorari unless at least four justices approve of the decision to issue the writ
Issue writs under its discretion and they are not required to issue one
o Most petitions for writs are denied
o A denial has no precedent
b)

IV.

The court grants petitions when the case rises important questions or when the lower
courts are issuing conflicting decisions on a significant issue
o Justices dont explain why thy choose some cases so it is hard to predict which
ones will be chosen

Following a State Court Case

There is the plaintiff and the defendant and they are both represented by lawyers
Litigation: def.: the process of resolving a dispute through the court system
A large body of law procedural law establishes the rules and standards for
determining disputes in courts
The applicable procedures will depend on whether the case is civil or criminal

A.

Petitions granted by the Court

The Pleadings

The complaint and answer (and the counterclaim and reply) taken together are the called
the pleadings.
Pleadings: def.: statements by the plaintiff and the defendant that detail the facts, charges,
and defense of a case

1.

Complaint: def.: the pleading made by a plaintiff alleging wrongdoing on the part of the
defendant. When filed with a court, the complaint initiates a lawsuit. It contains:
1. The facts necessary for the court to take jurisdiction
2. A brief summary of the facts necessary to show that the plaintiff is entitled to
relief (remedy)
3. A statement of the remedy the plaintiff is seeking
2.

The Defendants Answer

Answer: def.: procedurally, a defendants response to the plaintiffs complaint

o Either admits or denies the claim
o If admits then they will enter a judgement
o If denies then the litigation will go forward
There can be a counterclaim: def.: a claim made by the defendant in a civil lawsuit
against the plaintiff. In effect, the defendant is suing the plaintiff
The plaintiff will have to answer with a pleading, normally called a reply: def.:
procedurally, a plaintiffs response to a defendants answer
Admittance of the truth of the defendant but raising new facts that may result in a
dismissal is called an affirmative defense
4.

Service of Process

After the complaint has been filed, a process server one who delivers the complaint and
summons serves a summons and a copy of the complaint
Summons: def.: a document informing the defendant that a legal action has been
commenced against her or him and that the defendant must appear in court on a certain
date to answer the plaintiffs complaint
Failure to answer the complaint and summons may result in a default judgment
Default judgement: def.: a judgement entered by a court against a defendant who has
failed to appear in court to answer or defend against the plaintiffs claim
o The plaintiff could be awarded their damages
o The defendant has to have been properly served
3.

The Plaintiffs Complaint

Motion to Dismiss

Motion to dismiss: def.: a pleading in which a defendant admits the facts as alleged by
the plaintiff but asserts that the plaintiffs claim to state a cause of action has no basis in
law
Grounds of dismissal include:
o Improper delivery of the complaint and summons
o Improper venue
o And plaintiffs failure to state a claim for which a court can grant relief

If judge grants the motion, the plaintiff is usually given time to file an amended
complaint
If judge denies the motion, the suit will go forward, and the defendant must then file an
answer
Court can also dismiss a claim on its motion

B.

Either party may attempt to get the trial dismissed through use of various pretrial motions
One is the motion to dismiss previously mentioned
At the close of the pleadings, either party can make a motion for judgement on the
pleadings: def.: a motion to a lawsuit requesting the court to decide the issue solely on the
pleadings without proceeding to trial. The motion will be granted only if no facts are in
dispute
o Only evidence contained in the pleadings
Motion for summary judgement: def.: a motion requesting the court to enter a judgement
without proceeding to trial. The motion can be based on evidence outside the pleadings
and will be granted only if no facts are in dispute
o No genuine questions of fact

C.

Pretrial Motions

Discovery

Each party can use a number of procedural devices to obtain information and gather
evidence about the case from the other party or from a third party
Discovery: def.: method by which the opposing parties obtain information from each
other to prepare for trial
o Gaining access to witnesses, documents, records, and other types of evidences
o Allowed regarding any matter that is not privileged and is relevant to the claim or
defense of any party
Read book Pg. 77
1.

Depositions and Interrogatories

Deposition: def.: the testimony of a party to a lawsuit or a witness taken under oath
before a trial
o Person being deposed answers questions by attorneys they are recorded and then
signed by him or her
o Answers will help attorneys prepare for trial
o Can be used in court to impeach (challenge the credibility) of a party or witness
who changes their testimony
Interrogatories: def.: a series of written questions for which written answers are prepared
by a party to a lawsuit, usually with the assistance of the partys attorney, and then signed
under oath

o Are directed towards a party of the lawsuit not a witness and the answers can be
prepared by help from an attorney
o Parties are obligated to answer the questions even if that means disclosing
information from their records and files
2.

A party can serve a written request on the other party for an admission of the truth on
matters relating to the trial
o Conclusively established for the trial
Gain access to documents and other items not in her or his possession in order to inspect
and examine them
o Gain entry upon land to examine the premises
Physical or mental condition of one party is in question, the opposing party can ask the
court to order a physical or mental examination, but the court will do so only if the need
for the information outweighs the right to privacy of the person to be examined
3.

Requests for Other Information

Electronic Discovery

Any relevant material including information stored electronically can be the object of a
discovery request
E-evidence: def.: a type of evidence that consists of all computer generated or
electronically recorded information
o Email, voice mail, tweets, blogs, spreadsheets, documents stored on computers
o Can reveal important facts not otherwise seen
a)

A party must usually hire an expert to retrieve evidence in its electronic format
Expert uses software to reconstruct email exchanges and establish who knew what and
when
o Recover files the user thought deleted
b)

E-discovery Procedures

Advantages and Disadvantages

Advantages:
o Back-up copies of documents and email can provide useful and often quite
damaging information about how a particular matter progressed over several
weeks or months
o Can uncover the proverbial smoking gun that will win the lawsuit
Disadvantages:
o Time consuming and expensive especially when lawsuits deal with big firms
o Many firms are finding it difficult to preserve electronic evidence from a vast
number of sources

D.

Either party can request the pretrial conference, or hearing

o Consists of an informal discussion between the judge and the opposing attorneys
after discovery has taken place
o It is to explore the possibility of a settlement without trial and, if this is not
possible, to identify the matters that are in dispute and to plan the course of the
trial

E.

Jury Selection

Trial can be held with or without a jury

In federal courts, a trial is guaranteed when the amount in controversy exceeds $20, but
its not the same for state courts
For states the guarantees are similar but not the dollar amounts
The right to a trial by jury does not have to be exercised
In most state and in federal courts one of the parties must request a jury in a civil case or
the judge presumes that the parties waive the right
Voir dire: def.: an important part of the jury selection process in which the attorneys
question prospective jurors about their backgrounds, attitudes, and biases to ascertain
whether they can be impartial jurors
o Jurors are asked oral questions to determine bias or connections missed
o Party may challenge a prospective juror peremptorily ask that an individual not
be sworn in as a juror without providing reason
o Also may challenge juror for cause provide a reason why an individual should
not be sworn in as a juror
- Cannot be excluded by discrimination, race or gender

F.

Pretrial Conference

At the Trial

Attorneys present their opening arguments, facts they expect to prove during the trial
Then the plaintiffs case is heard
o Introduce evidence, witnesses documents
o Defendant has opportunity to defend the evidence and cross examine the
witnesses
1.

Directed Verdicts

At the end of the plaintiffs case there can be a motion for a directed verdict
Motion for a directed verdict: def.: a motion for the judge to take the decision out of the
hands of the jury and to direct a verdict for the party making the motion on the ground
that the other party has not produced sufficient evidence to support his or her claim
o If not granted the defendants attorney then presents their evidence

2.

Post-trial Motions

After jury has rendered its verdict either party may make a post-trial motion
If the plaintiff wins and the defendant had previously asked for a directed verdict then he
can ask for a motion for judgement n.o.v.
Motion for judgement n.o.v.: def: a motion requesting the court to grant judgement in
favor of the party making the motion on the ground that the jurys verdict against him or
her was unreasonable and erroneous
o If judge grants then the jurys verdict is out and the defendant wins
Motion for a new trial: def.: a motion asserting that the trial was so fundamentally flawed
(because of error, newly discovered evidence, prejudice, or another reason) that a new
trial is necessary to prevent a miscarriage of justice

H.

The Appeal

If post-trial motion is denied then the defendant can appeal

If the plaintiff wins but gets less money than they wanted they could appeal also
A party MUST have a legitimate reason for appealing a case
o Must be able to claim an error
The defendant becomes the appellate or petitioner and the plaintiff becomes the appellee
or respondent
1.

Closing Arguments and Awards

After defense concludes its presentation the attorneys present their closing arguments
each urging a verdict in their favor
Judge instructs the jury in the law that applies to the case (the charges)
o Jury retires to deliberate
The jury decides the verdict and also if there is an award the amount
Award: def.: the monetary compensation given to a party at the end of a trial or other
proceeding

G.

The defendants can then ask for a motion for a directed verdict
Plaintiffs attorney can challenge any evidence

Filing the Appeal

The appellant attorney files the record for an appeal

o All the trial material with the transcripts
Also give a condensation of the record, an abstract, and a brief
Brief: def.: a written summary or statement prepared by one side in a lawsuit to explain
its case to the judge
There will also be an answering brief from the other party

2.

Court of appeal does not hear evidence only reviews the records for errors of law
Attorneys can give oral arguments but then the case is taken under advisement
The court then has to decide the options PG. 81
3.

V.

Appeal to the Higher Appellate Court

Only if the reviewing court is intermediate

Corresponds like the writ of certiorari
Losing party can petition the courts for one
o Discretionary power can hear whichever case they want
If appeal granted then new briefs must be filed and attorney statements be presented
o Reverse or affirm the case

I.

Appellate Review

Enforcing the Judgement

Lack of guarantees that any judgment will be enforceable

Even if plaintiff wins award the defendant may not have enough assets to pay it

The Courts adapt to the Online World

Internet has brought new methods for filing pleadings and documents and issuing
decisions
New cyber courts, totally online

A.

Federal court system now has an electronic filing system

Can create a documents save as PDF then log it onto the courts web site

B.

Courts Online

Most courts have web sites

o Each can decide what to post
Court rules, decisions (judgements), phone numbers
Docket: def.: the list of cases entered on a courts calendar and thus scheduled to be heard
by the court
Decisions of a lot of courts are posted onto their websites

C.

Electronic Filing

Cyber Courts and Proceedings

Judicial proceedings take place in the internet

Parties meet online to present their arguments and evidence

o Email, video cameras, chats rooms
o Efficient and economical
Virtual lawyers, judges and juries
Cyber courts dealing with cases of technology
Use of video conferencing in regular courts
Internet part of judgements
o Virtual visitation rights

VI. Alternative Dispute Resolution

Several years may pass before a case is actually tried

Alternative Dispute resolution (ADR): def.: the resolution of disputes in ways other than
those involved in the traditional judicial process, such as negotiation, mediation, and
arbitration
o Parties sitting down together and attempting to work out their differences
o Multinational corporations agreeing to resolve a dispute through a formal hearing
before a panel of experts

A.

Simplest form ADR

Negotiation: def.: a process in which parties attempt to settle their dispute informally,
with or without attorneys to represent them
o Frequently advised instead of going to trial
o During a trial and even after but before appeal
Involves the parties and their attorneys

B.

Negotiation

Mediation

Mediation: def.: a method of settling disputes outside the courts by using the services of a
neutral third party, who acts as a communicating agent between the parties and assists
them in negotiating a settlement
o Mediator talks with them separately then jointly in attempt to help
Mediators proposal- but not the decision
Not as adversarial as litigation
Mediator takes active role trying to help resolve
o Tends to reduce hostility- later able to resume relationship like before
preferred method

C.

Arbitration

Arbitration: def.: the settling of a dispute by submitting it to a disinterested third party

(other than a court), who renders a decision
The third party makes the decision
o Usually parties decide that the decision is legally binding
Although it can be nonbinding
o Parties can go forwards with lawsuits if they dont agree
Resembles a trial
1.

Arbitrators decision is called an award

o Final word
Parties may appeal decision, but appellate courts review is restricted in scope compared
to if you stared with a trial
Court Reject the decision if PG 85
2.

Arbitration Statutes

States have statutes where arbitration will be enforced

4.

Arbitrators Clauses

Arbitration clause: def.: a clause in a contract that provides that, in the event of a dispute,
the parties will submit the dispute to arbitration rather than litigate the dispute in court
Found in contracts
3.

Arbitrators Decision

The Issue of Arbitrability

Disputes usually arise when an agreement that contains an arbitration clause: one party
wants arbitration and the other wants court trial
If covered by clause then it has to happen
Only if the party consented to it. It cannot be forced
Wont let it happen if it unfair to a party
5.

Mandatory Arbitration in the Employment Context

Rights arent protected when employers force employees as a condition of being hired to
agree to arbitrate all disputes and waive their rights under statutes
Employers be careful that you are not too one sided

6.
Private Arbitration Proceedings
New confidential arbitration process which allows parties to arbitrate in private

D.

Services are provided by both the government and private organizations

AAA nonprofit association PG. 88
For profit firms

E.

Providers of ADR Services

Online Dispute Resolution

Dispute resolution on internet offered by companies and organizations

Online dispute resolution (ODR): def.: the resolution of disputes with the assistance of
organizations that offer dispute resolution services via the internet