Académique Documents
Professionnel Documents
Culture Documents
Chapter 2
Courts and Alternative
Dispute Resolution
Copyright 2009 South-Western Legal Studies in Business,
a part of South-Western Cengage Learning.
Jurisdiction Over
Persons or Property
Persons: power of a court to compel the
presence of the parties (including
corporations) to a dispute to appear before
the court and litigate.
In Rem: power to decide issues relating to
property, whether the property is real,
personal, tangible, or intangible.
A court generally has in rem jurisdiction over any
property situated within its geographical borders.
Copyright 2009 South-Western
Jurisdiction Over
Persons or Property
Long Arm Statutes: courts use long-arm
statutes for non-resident parties based on
minimum contacts with state. Means
defendant had some connection with forum
state.
Corporate Contacts: does business or
advertises within state.
CASE 2.1 Mastondrea v. Occidental Hotels
Management S.A. (2007).
Copyright 2009 South-Western
Exclusive vs.
Concurrent Jurisdiction
Exclusive: only one court (state or federal)
has the power (jurisdiction) to hear the
case.
Concurrent: more than one court can hear
the case.
Jurisdiction in Cyberspace
Courts use a Sliding Scale Standard to
determine whether to exercise jurisdiction.
Some
Interaction
Passive
Website
No
Yes
Substantial
Business
Interaction
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Venue
Venue is concerned with the most
appropriate location for the trial.
Generally, proper venue is whether the
injury occurred.
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Standing to Sue
In order to bring a lawsuit, a party must
have standing to sue.
Standing is sufficient stake in the
controversy; party must have suffered a
legal injury.
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Federal Courts
Supreme
Court
Court of
Appeals
District Court
County Court
Municipal
Court
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Justice
Court
U.S. Supreme
Court
Circuit
Courts of
Appeals
U.S. District
Court
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Trial Courts
Courts of record-court reporters.
Opening and closing arguments.
Juries are selected.
Evidence, such as witness testimony,
physical objects, documents, and
pictures, is introduced.
Witnesses are examined and crossexamined.
Verdicts and Judgments are rendered.
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Appellate Courts
Middle level of the court systems.
Review proceedings conducted in the trial
court to determine whether the trial was
according to the procedural and
substantive rules of law.
Generally, appellate courts will consider
questions of law, but not questions of fact.
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Supreme Courts
Also known as courts of last resort.
The two most fundamental ways to have
your case heard in a supreme court are:
Appeals of Right.
By Writ of Certiorari.
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4: Alternative Dispute
Resolution
Trials are a means of dispute resolution
that are very expensive and sometimes
take many months to resolve.
There are alternative dispute resolution
(ADR) methods to resolve disputes that
are inexpensive, relatively quick and leave
more control with the parties involved.
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ADR
ADR describes any procedure or device
for resolving disputes other than the
traditional judicial process.
Unless court-ordered, there is no record
which is an important factor in
commercial litigation due to trade secrets.
Most common: negotiation, mediation,
arbitration.
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Negotiation
Less than 10% of cases reach trial.
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.
Successful negotiation involves thorough
preparation, from a position of strength.
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Assisted Negotiation
Mini-Trial: Attorneys for each side
informally present their case before a
mutually agreed-upon neutral 3rd party
(e.g., a retired judge) who renders a
non-binding verdict. This facilitates
further discussion and settlement.
Expert evaluations.
Conciliation: 3rd party assists in
reconciling differences.
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Mediation
Involves a neutral 3rd party (mediator).
Mediator 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.
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Arbitration
Settling of a dispute by a neutral 3rd party
(arbitrator) who renders a legally-binding
decision; usually an expert or well-respected
government official.
Arbitration Clauses and Statutes.
Arbitrability of the Case.
CASE 2.2 Buckeye Check Cashing, Inc. v.
Cadegna (2006).
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Arbitration Disadvantages
Results may be unpredictable because
arbitrators do not have to follow precedent
or rules of procedure or evidence.
Arbitrators do not have to issue written
opinions.
Generally, no discovery available.
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Arbitration Process
Case begins with a submission to an
arbitrator. Next comes the hearing where
parties present evidence and arguments.
Finally, the arbitrator renders an award.
Courts are not involved in arbitration
unless an arbitration clause in a contract
needs enforcement.
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5: International Dispute
Resolution
Forum Selection and Choice-of-Law
clauses in contracts govern the
transaction.
Arbitration clauses are generally
incorporated into international contracts.
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