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Definition
process of bringing, maintaining and defending a lawsuit
Several forms of non-judicial dispute resolution have developed in response to the expense and difficulty of bringing a lawsuit |
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| alternative dispute resolutions |
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| used more and more often to resolve commercial and e-commerce disputes |
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| govern operation of administrative agencies, which assist in implementing and enforcing laws that regulate business |
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| Pretrial Litigation Process |
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| can be divided into pleadings, discovery, dismissals and pretrial judgments, and settlement conference |
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| paperwork filed with the court to initiate and respond to a lawsuit |
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the plaintiff must file a complaint with the proper court to initiate a lawsuit
It must name the parties to the lawsuit, allege the ultimate facts and law violated, and contain a “prayer for relief” for a remedy to be awarded by the court |
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issued by the court after the complaint has been filed. It is a court order directing the defendant to appear in court and answer the complaint
Both are served on the defendant by a sheriff, another gov’t official or a private server |
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defendant must file and answer to the plaintiff’s complaint. It is filed with the court and served on the plaintiff
In it, the defendant admits or denies the allegations contained in the plaintiff’s complaint
A judgment is entered against a defendant who admits all the allegations in the complaint
The case proceeds if the defendant denies all or some of the allegations
If the defendant does not answer the complaint, a default judgment is entered against him or her
A default judgment establishes the defendant’s liability, the plaintiff then has only to prove the damages |
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defendant’s answer can assert
Ex: if a complaint alleges that the plaintiff was personally injured by the defendant, the defendant’s answer could state that he or she acted in self-defense
Another affirmative defense would be an assertion that the plaintiff’s lawsuit is barred because the statute of limitations (time within which to bring the lawsuit) has expired |
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| Cross-Complaint and Reply |
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Definition
defendant who believes that he or she has been injured by the plaintiff can file a cross-complaint against the plaintiff in addition to an answer
In it, the defendant (now the cross-complainant) sues the plaintiff (now the cross-defendant) for damages or some other remedy
The original plaintiff must file a reply to the cross-complainant
Can include affirmative defenses and must be filed with the court and served |
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| Intervention and Consolidation |
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Definition
if other persons have an interest in a lawsuit, they can intervene and become parties to the lawsuit
Ex: a bank that has made a secured loan on a piece of real estate can intervene in a lawsuit between parties who are litigating ownership of the property
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can consolidate the cases into one case if doing so would not cause undue prejudice to the parties
Ex: commercial airplane crashes. Court could consolidate all the lawsuits against the defendant airplane company |
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Term
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establishes the period during which a plaintiff must bring a lawsuit against a defendant. If a lawsuit is not filed within this time period, the plaintiff loses the right to sue
Begins to “run” at the time the plaintiff first has the right to sue (eg, when the accident happens)
Fed and state gov’ts have established statutes of limitations for each type of lawsuit (most are from 1 – 4 years, depending on type)
Ex: 1-year statute of limitations is common for ordinary negligence actions. If on 7/1/08, Otis causes an accident in which Cha-Yen is injured, Cha-Yen has until 7/1/09 to bring lawsuit , and loses right if waits |
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legal process providing for a detailed pretrial procedure
Each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial
Serves several functions: preventing surprise, allowing parties to thoroughly prepare for trial, preserving evidence, saving court time, and promoting the settlement of cases |
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oral testimony given by a party or witness prior to trial. Person giving the deposition is called the deponent
Deposition of a witness can be given voluntarily or pursuant to a subpoena. Can be videotaped. Are recorded. Given opportunity to correct by signing. Used to preserve evidence and impeach testimony given at trial. |
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written questions submitted by one party to a lawsuit to another part
Can be very detailed. Documents can be attached. Required to answer in certain amount of time. Attorney usually helps prepare answers. Signed under oath. |
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| substantial portion of a lawsuit may be based on info contained in documents. One party may request production of all documents relevant. May view on other’s party’s premise if too much of a struggle |
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| Physical and Mental Examination |
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Definition
| can be ordered to submit to determine the extent of the alleged injuries. |
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| Dismissals and Pretrial Judgments |
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Definition
| There are several pretrial motions that parties can make to try to dispose of all or part of a lawsuit prior to trial. Two major ones |
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| Motion for Judgment on the Pleadings |
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Definition
can be made by either party once the pleadings are complete. Motion alleges that if all the facts presented in the pleadings are true, the party making the motion would win the lawsuit when the proper law is applied
The judge cannot consider any facts outside pleadings |
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| Motion for Summary Judgment |
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Definition
there are no factual disputes to be decided and the relevant law should be decided by the trier (judge or jury) to the undisputed facts and decide the case
Can be made by either party and are supported by evidence outside the pleadings
Affidavits from the parties and witnesses, documents (contract between parties), depositions, are common forms of evidence
If the court finds no factual dispute, it can decide the issues raised in the summary judgment motion
If the judge finds that a factual dispute exists, the motion is denied and the case goes to trial |
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federal court rules and most state court rules permit the court to direct the attorneys or parties to appear before the court for a settlement conference, or pretrial hearing
Purpose: facilitate the settlement of the case
Held informally in the judge’s chambers
If no settlement reached, the pretrial hearing is used to identity the major trial issues and other relevant factors. (More than 90% settled before going to trial). |
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party to an action at law is guaranteed their right to jury trial
If either party requests a jury, the trial is by jury. If both parties waive their right to a jury, the trial occurs without a jury and the judge sits as the trier of fact
At the time of trial, each party usually submits to the judge a trial brief that contains legal support for its side |
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| Jury selection, opening statements, the plaintiffs case, the defendants case, rebuttal and rejoinder, closing arguments, jury instructions, jury deliberation and verdict, entry of judgement |
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sually selected from voter or automobile registration lists
Individuals selected to hear specific cases through a process called voir dire (to speak the truth): Lawyers for each party and the judge can ask jurors questions to determine whether they would be biased in their decisions
Once selected (6 – 12), they are impaneled to hear the case and sworn in
Jury can be sequestered in important cases
Jurors are paid minimum fees for their service |
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| attorney summarizes the main factual and legal issues of the case and describes why he believes the client’s position is valid (not considered evidence) |
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plaintiff bears the burden of proof to persuade the trier of fact of the merits of the case
Plaintiff’s attorney calls witnesses to give testimony and then direct examination of the witnesses – documents and other evidence can be introduced
Then defendant’s attorney has cross-examination
Can only ask about subjects brought up during direct examination
Then plaintiff’s attorney can ask questions – re-direct examination |
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must (1) rebut the plaintiff’s evidence, (2) prove any affirmative defenses asserted by the defendant, and (3) prove any allegations contained in the defendant’s cross-complaint
Followed by re-direct and re-cross-examination |
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Rebuttal: after the defendant’s attorney has finished calling witnesses, the plaintiff’s attorney can call witnesses and put forth evidence to rebut the defendant’s case
Rejoinder: defendant’s attorney can call additional witnesses and introduce other evidence to counter the rebuttal |
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both attorneys try to convince the jury to render a verdict for the their clients by pointing our strength’s in client’s case / weaknesses is other’s case
Info given is not evidence |
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Instructions inform the jury about what law to apply when deciding the case
Ex: in criminal trial, judge reads the jury the statutory definition of the crime charged
Ex: in an accident case, judge reads the jury the legal definition of negligence |
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| Jury Deliberation and Verdict |
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Definition
minutes to weeks – verdict reached
Civil cases, jury assesses damages against the defendant if it has held in favor of the plaintiff; jury often assesses penalties in criminal cases |
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judge enters judgment to the successful party based on the verdict
The court may overturn the verdict if it finds bias or jury misconduct: judgment notwithstanding the verdict, judgment n.o.v. |
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| in a civil case, judge may reduce the amount of monetary damages awarded by the jury if he finds the jury to have been biased, emotional or inflamed |
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trial court issues this setting forth the reasons for the judgment
This, with the trial transcript and evidence introduced at trial constitutes the permanent record of the trial court proceeding |
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| can appeal the court’s decision once a final judgment is entered. Only the defendant can appeal in a criminal case. Made to teh appropriate appellate court. A notice of appeal must be filed within a certain time. |
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| Alternative Dispute Resolution (ADR)- Negotiation |
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Definition
simplest form of ADR – try to reach a voluntary settlement
Can take place before filed, after filed, or before other forms of ADR are used
Parties represented by attorneys, and make offers and counteroffers
Judge must be assured that a settlement of the case is not possible before permitting it to trial
If settlement reached, parties voluntarily enter into a settlement agreement – each side must sign for it to be effective – case then dismissed based on execution of the agreement |
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| Alternative Dispute Resolution (ADR)-Arbitration |
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Definition
parties choose an impartial third party to hear and decide the dispute
The neutral party is called the arbitrator: usually members of the AAA
Arbitration clauses: require disputes arising out of the contract to be submitted to arbitration
Ex: franchise agreements, labor union agreements, leases, commercial contracts
If there is no arbitration clause, parties can enter into a submission agreement where they agree to submit a dispute to arbitration after the dispute arises
Congress enacted the Federal Arbitration Act (FAA) to promote the arbitration of disputes
About half the states adopted the Uniform Arbitration Act: promotes arbitration of disputes at the state level
Arbitration Providers: provide organizations or individuals who qualify to hear and decide certain disputes
Ex: AAA (largest provider) – people called neutrals and have special groups that can hear disputes involving employment contracts, construction contracts, etc
Arbitration Procedure: parties can call witnesses to give testimony and introduce evidence
Each party often pays filing fees, arbitrators paid by hour / day
Decision and Award: after hearing completed, arbitrator reaches decision and issues an award and parties often agree in advance to be bound by the decision / remedy
Binding arbitration cannot be appealed in courts, nonbinding can be appealed |
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| Alternative Dispute Resolution (ADR)-Mediation |
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Definition
orm of negotiation in which a neutral third party assists the disputing parties in reaching a settlement of their dispute
Mediator: expert in the area of dispute or a lawyer or retired judge, selected by the parties as provided in their agreement
Does not make a decision or award, just assists the parties in reaching a settlement
Mediator gives opinion to the parties as to what he believes to be reasonable
If nothing reached, parties may proceed to judicial resolution of case |
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| Alternative Dispute Resolution (ADR)-Conciliation |
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Definition
conciliator helps the parties try to reach a resolution of their dispute – used when the parties refuse to face each other in an adversarial setting
Conciliator schedules meetings and appointments when info is transferred
Role is not to propose settlement but many do |
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Term
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Definition
voluntary private proceeding in which lawyers for each side present a shortened version of their case to the representatives of both sides
Representatives who attend have authority to settle the dispute
Act as a substitute for a real trial, but are briefer and not as complex/expensive to prepare for |
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Definition
parties to a dispute employ a neutral third party to act as fact-finder to investigate the dispute
Fact-finder is authorized to investigate, gather evidence and prepare reports of findings
Not authorized to make decision or award – sometimes recommends settlement |
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If parties agree, court may appoint one to conduct a private trial and render a judgment
Referees, often retired judges, have most of the powers of trial judges, and their decisions stand as judgments of the court
Parties usually reserve their right to appeal |
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Term
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Definition
created by federal, state, and local governments
Range from complex fed agencies (Dpt of Health and Human Services) to local zoning board
Congress creates administrative agencies to administer and enforce new statues or assigns existing agencies to the new statutes
Ex: Securities Act of 1933 and the Securities Exchange Act of 1934 – created SEC |
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| Federal Administrative Agencies |
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Definition
created either by legislative or the executive branch of the fed gov’t
Created by Congress or by President to operate the fed gov’t |
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| State Administrative Agencies |
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Definition
profound effects on businesses – enforce state corporations law, a banking dpt to regulate banks, fish and game dpts and works’ compensation boards
Local governments and municipalities create administrative agencies such as zoning commissions to administer local law |
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regulate businesses and industries collectively with laws
Ex: National Labor Relations Board: empowered to regulate the formation and operation of labor unions; OSHA: formulate and enact safety and health standards for the workplace
Ex: FCC: regulates operation of TV and radio; FAA regulates commercial airlines |
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combination of substantive and procedural law – enforced by admin agencies
Ex: EPA enforces laws that protect the environment – must follow certain procedural laws in enforcing these laws |
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| Administrative Procedure Act |
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Definition
| establishes certain administrative procedures that federal administrative agencies must follow in conducting their affairs |
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Definition
presides over administrative proceedings
Decide questions of law and fact concerning a case
No jury
An ALJ is an employee of the admin agency
Both the agency and the respondent may be represented by counsel
Witnesses may be examined and cross-examined, evidence introduced and objections made
ALJ decision is an order – must state the reasons and becomes final if not appealed
Appeal consist of a review by the agency and further can be made to the appropriate federal court or state court |
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Definition
an agency has only the legislative judicial, and executive powers that are delegated to it – delegation doctrine
Can adopt a rule or regulation (a legislative function), prosecute a violation of the statute or rule (executive function), and adjudicate the dispute (judicial function)
If acts outside scope of delegated powers – unconstitutional |
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| Delegation of Powers- Rule-Making |
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Definition
many federal statutes expressly authorize an administrative agency to issue substantive rules – much like a statue: has the force of law and must be adhered to by covered persons and businesses
Violators may be held civilly or criminally liable – and all are subject to judicial review
Interpretive Rules: can be issued to interpret existing statutory language, do not establish new laws though. No public notice / participation required
Statements of Policy: may be issued by admin agencies and it announces a proposed course of action that an agency intends to follow in the future. Do not have force of law and public notice / participation not required |
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| Delegation of Powers -Licensing Power |
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| New statues often require the issuance of a government license before a person can enter certain types of industries or professions (doctors, lawyers, contractors) |
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| Delegation of Powers - Judicial Power |
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Definition
many agencies have authority to adjudicate cases through an admin proceeding – initiated when an agency serves a complaint on a party the agency believes has violated a statute or rule or order
In these cases, the agency must comply with Due Process Clause – requires the respondent to be given (1) proper and timely notification of the allegations / charges and (2) an opportunity to present evidence on the matter |
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| Delegation of Powers- Executive Power |
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Definition
power to investigate, prosecute possible violations, admin rules, and admin orders
To perform, must obtain info from persons / businesses under investigation
If not supplied voluntarily, agency may issue an admin subpoena to search the business premises – administrative search |
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| udicial Review of Administrative Actions |
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Definition
When enabling statute doesn’t provide for a review, the Admin Procedure Act authorizes judicial review of fed amin agency actions
The party appealing the decision of an admin agency is called the petitioner
Decisions appealed to the appropriate court |
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