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BUS 320 - UNIT 1: THE LEGAL ENVIRONMENT CHAPTER 3: DISPUTE RESOLUTION (P51)
LITIGATION (p51)
1. Pleadings (complaint + answer)
a. Complaint: - = a short & plain settlement of the facts alleged and the legal claims made (demand for damages), - filed before a court that has jurisdiction over both parties (=in personam jurisdiction) (if states, there must be a Long-Arm Statute (=state law) allowing the state to exercise jurisdiction to the out-of-state party; otherwise diversity case. - the court, aka venue, ordinarily where the Transaction or Occurrence or Series of Transactions or Occurrences (TOSTO) took place or where any defendant resides. - must be filed within the statute of limitations (SOL). - the P must have standing (personal stake in the outcome of the litigation) to sue. b. c. Summons: court order directing the defendant to appear in court and answer the complaint. Answer: after receiving the summons, the defendant has 20 days to file an answer: a brief reply to each of the allegations in the complaint. If the defendant fails to answer in time, the plaintiff will ask for a default judgment (a decision that the P wins without a trial). The D may add cross-complaint (counter-claim in federal courts) in their answer: a second lawsuit in which the D sues the P. The other party would then file a reply. Intervention: act of others to join as parties to an existing lawsuit. Consolidation: act of a court to combine two or more separate lawsuits into one lawsuit. If the P discovers that D harmed the same way lots of people, P could ask the court to permit a class action: one plaintiff represents the entire group of plaintiffs, including those who are unaware of the lawsuit or even unaware they were harmed.

d.

e. f. g.

2. Discovery
The pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponents case. The parties are entitled to discover anything that could reasonably lead to valid evidence. Interrogatories (written questions relevant to the action directed to the other parties which must be answered truthfully under the penalty of perjury (under oath)); Production of Documents and Things relevant to the action, from a party to another; Independent mental and physical examination (demand that the party claiming injury be examined by a physician chosen by the demanding party. The examination must relate to an issue placed into controversy; Site inspection (an examination of the scene where the claim occurred) and DEPOSITIONS: an out-of-court testimony given under oath. A partys lawyer deposes (ask question to) a deponent (the other party, a witness). Motion for a protective order: a request that the court limit discovery (if the opponent goes off limits). Motion to compel answers to interrogatories: a request that the court order the opponent to supply answers. Memorandum: a supporting argument for the motion.

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3. Dispositive motions
A party may file a motion: a formal request to the court to take some step or issue an order. A party can for example ask the court for a judgment based simply on the pleadings themselves, by filing a motion to dismiss = motion for judgment on the pleadings = demurrer, which admits to all the allegations in the complaint, but for some defined legal reasons nevertheless asserts that the defendant is entitled to judgment, therefore asking the court to terminate a case without permitting it to go further (trial). Cf SOL. Once discovery is completed, both sides may consider seeking summary judgment: a ruling by the court that no trial is necessary because some essential facts are not in dispute (the P must have standing to sue for example). As long as some evidence supporting each side of a key factual dispute, the court may not grant (=sustain) SJ.

4. Settlement conference
More than 90% of cases are settled before they go to trial. In many civil cases the parties resort to Alternative Dispute Resolution (Arbitration, Mediation, Conciliation or Early Neutral Evaluation). If the case does not settle by ADR means, about a week to ten days before trial is set to commence the Court requires that the parties to try to settle the matter one last time, this time with the help of a judge.

TRIAL (p 45, 49, 61) (If no Alternative Dispute Resolution (Negotiation, Mediation, Arbitration)
Adversary System: each side presents its witnesses and then the opponent has a chance to cross-examine, in front of a neutral fact finder (judge + jury). Right to Jury Trial: both P and D have a right to demand a jury trial when the lawsuit is one of money damages. Doesnt matter if state or federal court. They can decide to waive (renounce) it. Voir Dire: the process of selecting a fair jury. Potential jurors are questioned individually by the judge or the 2 lawyers, each lawyer may make any number of challenge for cause: a claim that a juror has demonstrated probable bias. If the judge perceives no bias, the lawyer may still make a limited number of peremptory challenges: the right to excuse a juror for virtually any reason, which need not be stated in court. There are 14 jurors, including 2 alternates. Opening Statement: each attorney tell the jurors what theyll intend to prove during the trial. The Ps attorney goes first as he has the burden of proof. Burden of proof. Civil cases: the PLAINTIFF has to prove its case by a preponderance of the evidence: its version of the fact is slightly more likely than the Ds version. 51% persuasion. Criminal cases: the PROSECUTION must demonstrate beyond a reasonable doubt that the D is guilty: although unreasonable doubts may still remain, the D is proven guilty under undeniable proofs.

1. Plaintiffs case
Direct examination: a lawyer asking question to one of his own witnesses. Cross-examination: a lawyer asking question to an opposing witness. The law of evidence determines what questions a lawyer may ask and how they are to be phrased + what answers a witness may give and what documents may be introduced. Expert witness: an individual with critical experience in a particular specialty or industry who can assist the jury understand scientific and technical evidence by stating his or her opinion concerning those technical matters even though he or she was not present at the event. Percipient witness: a non-expert witness only allowed to testify facts he or she has personal knowledge based on their first hand sensory perceptions -- not their opinions about these facts.

2. Motion for directed verdict


At the close of the Ps case, the Ds lawyer can move for a directed verdict, a ruling that the P has entirely failed to prove some aspect of her case. It is permissible only if the evidence so clearly favors the D that reasonable minds could no disagree on it, otherwise the motion would be denied.

3. Defendants case: cf Ps case. 4. Closing Arguments


Both lawyers sum up their case to the jury, the Ps lawyer goes last.

5. Jury Instructions
The judge instructs the jury as to its duty to evaluate the case based only on the evidence they heard at trial, relying on their own experience and common sense. He also explains them the law and the burden of proof.

6. Verdict
The jury deliberates informally, can last hours or weeks. Many states require a unanimous verdict, others, for ex, only 10-2 vote in civil cases. Both parties are summoned to come court, and discover the jurys decision.

7. Post-trial motions
Judgment non obstante veredicto (JNOV) The losing party may move for a JNOV, a judgment notwithstanding the jurys verdict, that is, asking the judge to overturn it. Remittitur: Judge believes that the jury returned too large a verdict. She gives the plaintiff a choice -- accept a reduction of damages or new trial. Additure: Judge believes that the jury returned too small a verdict. She gives the defendant a choice -- pay additional damages or face a new trial. Motion for a New Trial Based on some misconduct by the jury or attorneys or error of law by the presiding judge (procedural or substantive legal error).

APPEAL (p47, 50, 66)


In Courts of appeals, the judges only judge errors of law they dont review any facts.

1. Filing an appeal
The losing party files an appeal to the court of appeals. The losing party submits a brief (= written arguments on the case) to the court, arguing there were errors of law during the trial (for ex: judge gave them wrong instructions, jurys verdict clearly contrary to the evidence, they have NO evidence at all to support their verdict (cf: suicide? Accident? murder!). The party filing the appeal = the appellant vs. the party opposing the appeal= the appellee.

2. The reply brief


The opposing party files a reply brief, opposing the other party on all issues they raised. He can cites precedent to support his reply.

3. The oral argument


Eight months later, each sides lawyers appear in the court of appeals for oral argument (to argue their case), usually before a panel of three judges. The appellant goes first, then the appellee, the judges frequently ask them questions. The judges can then take the case under advisement: they will decide some time in the future.

4. Appeals Court Options


AFFIRM the trial courts decision: allowing it to stand, upholding it. MODIFY the jurys factual finding: affirming that the winner won but decreasing the award for example. REVERSE AND REMAND: nullifying the lower courts decision and returning the case to the latter for a new trial. SIMPLY REVERSE: turning the loser into the winner with no new trial.

If the appellate court considers that a harmless error (= a mistake by the trial judge that was too minor to affect the outcome) was made at the trial court, it will rule that the verdict was fair in spite of the latter.

NB: at any time during the legal process (before litigation final decision), parties can decide to settle through Arbitration and other non-judicial methods of ADR (mediation, conciliation, neutral evaluation).