LAW 322 Ch. 3 Trials & Resolving Disputes

"Res Judicata"

"a thing decided by judgments"... means same dispute cannot be considered again in that or any other forum.

Request for Admissions:

Either party can serve the other with written requests for an admission of the truth in matter relating to the dispute *if admitted, these facts need not be prove at trial

Issues in Negotiation:

When parties enter into negotiation, it is often with the intention of making a deal, that is, they are looking forward to forming a contract

Reply:

When the defendant files a counterclaim, the plaintiff answers with a reply, which is an answer to the counterclaim.

Medical and Physical Examinations:

When the physical or mental condition of a party is an issue, the court may be asked to order that party to submit to an examination

Enforcing Judgments:

When the plaintiff recovers a damage award and the defendant does not pay, the plaintiff can seek a "writ of execution"

Punitive Damages:

When the wrongdoer's actions are particularly reprehensible, or when the defendant's conduct is willful or malicious, the court may award the injured party punitive or exemplary damages in addition to compensatory damages. *meant to punish the wrongdoer and discourage other from engaging in similar conduct in the future

Responses to the Complaint: The defendant may file a motion to dismiss:

an answer with or without an affirmative defense, and or a counterclaim

Compensatory Damages:

are intended to give injured parties enough money to restore them to the economic position they were in before the injury, or to cover the losses caused by the injury *may be awarded for loss of time and money, pain and suffering, injury to reputation, and mental anguish, depending on the circumstances

Purpose of Discovery: Discovery also preserves:

evidence of witnesses who might not be available at the time of the trial, as well as the testimony of witnesses whose memory may fade over time

Depositions and Interrogatories: the deposition is a useful way to:

find information relevant to the dispute, including leads to other witnesses or documents

Expert Witnesses: Many trials involving businesses use expert witnesses to:

help establish facts critical to a case, such as the value of lost profits, the costs to a victim of an accident, or the scientific evidence of harm from a product

Nominal Damages:

if a plaintiff suffers a legal wrong, but has not suffered actual damages to person or property, or if the damages are considered trivial by the court, the court may award nominal damages

In the FEDERAL ARBITRATION ACT (FAA), Congress states:

in the strongest terms that agreements to arbitrate must be upheld. *If a party tries to avoid arbitration, courts are instructed by the FAA to compel and enforce arbitration

Basical Trial Procedures: The court applies:

legal rules to the facts that the parties establish under rules of procedure and evidence

The Trial: Although judges have some freedom to change the structure of a trial,:

most follow the general order

Selection of the Jury: Attorneys are also allowed a limited number of challenges that:

permit them to reject prospective jurors without stating a reason.

The Trial: In nonjury trials, the judge may:

put more limits on the attorneys' opening statements and closing arguments, but its likely to put fewer restrictions on witnesses' testimony.

Depositions and Interrogatories: Written interrogatories are:

questions submitted by a party to a case to the other party, or a witness, or another person with relevant information

Answer: The defendant will admit, deny, or say that it does not the truth, with respect to each assertion of the plaintiff

real talk doe.

Tools of the Discovery Process: The opposing part cannot:

refuse to comply just because the compliance is time consuming or costly

Counterclaim: The counterclaim is a complaint made by the defendant, and the plaintiff must:

respond to it just as the defendant responded to the original complaint

Purpose of Discovery: Most cases are settled, but if the case goes to trials, discovery narrows the issues by:

revealing what the parties actually disagree about so the trial can focus on the important questions in the case

Pleading the Stage: the plaintiff gives notice to the defendant by:

services of process, including a summons

Purpose of Discovery: The discovery process now prevents:

surprises by giving parties access to each other's information

Pleading the Stage: Pleadings are the formal statements made to:

the court by the parties to a case that lists their claims and defenses

Sanctions for Failing to Respond to a Discovery Request: If the part does not comply with a court order:

the court may order default judgment granting victory to the other party or find the non complying party in contempt of court and order the party to jail or impose a fine

Answer: An Affirmative defense is when:

the defendant admits to the facts claimed by the plaintiff, but offers additional facts he asserts constitute a defense - a legal excuse - to the plaintiff's complaint

Responses to the Complaint: Following the service of the plaintiff's complaints:

the defendant must file an answer *if the defendant does not respond, the court will presume the claims of the plaintiff are true and grant the plaintiff the relief requested in the complaint

Answer: If the defendant's motion to be dismissed is denied, or if the defendant does not make sure a motion:

the defendant must file an answer with the court

Counterclaim:

the defendant's claim is a counterclaim and may be based on the same events that the plaintiff bases the complaint on.

After the discovery is complete, if there has been no dismissal, summary judgment, or settlement:

the dispute is set for trial.

Medical and Physical Examinations: Generally, the party requesting the order specifies:

the exact type of mental or physical examination desired and the time, place and the specialists who are to conduct it

Under the doctrine of Res Juducata:

the final judgment on the merits of a case by a court prevents an issue from being relitigated

After a jury returns a verdict:

the losing party may make a motion for judgment as a matter of law or motion for judgment notwithstanding the verdict.

Pretrial Conference: Judges usually urge:

the parties to focus on key issues and to attempt to reach and out-of-court settlement

Pleading Stage: To begin a lawsuit:

the plaintiff files the first pleading, known as the "COMPLAINT"

Pleading Stage: in the complaint:

the plaintiff must state the basis of the court's subject-matter jurisdiction and jurisdiction over the parties to the dispute

The Jury: In criminal cases:

there is a right to a jury trial

The Jury: In the federal court system:

this right is guaranteed if the amount in controversy exceeds $20 and is a common-law claim

Discovery State: Obtaining Information before Trial

*After the initial exchange of pleadings, litigation enters the discovery stage *the process of obtaining information is know as "discovery"

Enforcement State:

*After the trial, if no appeal is taken or if no further appeal is available, the judgment, or decision, of the court becomes final *The same dispute cannot be considered again in that or any other forum.... "res judicator"

Decision by the Appeals Courts:

*An appellate court's majority decision is referred to as the courty's majority opinion *A judge may also write a concurring opinion, if he agrees with the outcome but has different reasons or wishes to make an additional argument, or a dissenting opinion, if he disagrees with the decision of the majority *In such situations, the appeals court is likely to remand the case - return the case - to the trial court for retrial

Instruction to the Jury:

*Before the jury retires to deliberate and reach a verdict, the judge gives the jury instructions, or charges *After the instructions, the jurors are placed in the custody of the bailiff or other court official, who will see that they remain together and that there is no misconduct

3 Types of Damages:

*Compensatory Damages *Punitive Damages *Nominal Damages

Discovery: Impacts of Business:

*Discovery an impose significant costs on businesses *The burdens are heavy when executives have to take time to prepare for and provide deposition *In disputes involving technical matters or significant detail, a deposition may take two or more, plus days weeks of preparation time. *The disruption of business caused by having executives away from work for several days to prepare for and give a deposition is one more reason out-of-court settlements are likely

Pretrial Conference:

*Either party or the court may request a pretrial conference *These commonly held conferences normally involve only the attorneys and the judge

Presentation of Direct Testimony:

*Following the opening statement, the plaintiff's attorney begins to call witness and present evidence *Each witness is first questioned by the plaintiff's attorney on direct examination *The defendant's attorney then examines that witness on cross-examination.

Selection of Arbitration:

*In arbitration, the parties agree on who the arbitrator will be, or they agree to a selection method given the arbitrator rules specified in the arbitration agreement. *Arbitrators are required to be impartial, which means that they must avoid conflicts of interest and should uphold the integrity of the arbitration process as spelled out in code of ethics

The Arbitration Agreement:

*It is common for parties to provide for arbitration of future disputes by inserting an arbitration clause in a contract *Arbitration begins when a party files a submission to refer a dispute to arbitration

Appealing the Award:

*Just as parties who lose in court may be dissatisfied, parties who lose in arbitration may want to carry the matter further. *According to the Federal Arbitration Act, there are only 4 grounds for overturning an award: 1.The award was obtained by corruption or fraud 2. There was evidence of partiality or corruption by an arbitrator 3. An arbitrator was guilty of serious procedural misconduct, such as refusing to hear relevant evidence that prejudiced the rights of a party 4. An arbitrator exceeded his power, and an award was made on a subject not relevant to the proceeding

3 Types of Injunction Relief:

*Temporary Restraining Order *Preliminary Injunction *Permanent Injunction

Appellate State:

*The decision in a case may be appealed if one of the parties believes an error of law was made during the trial *Bases for appeal include failure by the trial to judge to admit or exclude certain evidence, improper instructions being given to the jury, and the grandaunt or denying of motions to dismiss the case *Appellate courts ensure that the trial court judge correctly applied the law

Reaching a Verdict:

*The jury deliberates to reach an agreement and find for the plaintiff or the defendant *In a civil trial, the parties must prove their contentions to the jury by preponderance of the evidence *If jurors are unable to reach a unanimous decision, the jury is said to be hung, and a new trial before a different jury may be necessary ^^^the jury is discharged and a mistrial is declared. *after the jury has reached a verdict, the verdict is read in court by the foreman of the jury or by the judge or the clerk of the court.

Negotiation:

*The least formal form of ADR *It is almost voluntary, and unlike arbitration, has no mandatory procedure, but there can be legal consequences for lying *The use of lawyers or representatives is not required, but is common

Motions for a Verdict:

*The parties may ask the judge to issue a favorable verdict that makes jury deliberation unnecessary *Most common is a motion for directed verdict or a motion for judgment as a matter of law *After the cases have been presented, but before the case goes to the jury, a party may request that the court enter a judgment in favor because there is not legally sufficient evidence on which a jury could find for the other party

Mediation

*Unlike mediation, where the parties to a dispute or their representative meet to try to settle a matter, in mediation a third - the mediator- is always used to help the parties to a dispute to try and reach a solution by coming to an acceptable agreement *Unlike arbitration, where the arbitrator imposes an award on the parties, the mediator cannot impose a decision but can only help resolve a conflict *Many federal and state courts require that mediation be attempted before trial or at least offered as an alternative

Remedies in Civil Litigation:

*a plaintiff brings a civil suit seeking a remedy from the court *the remedies awarded by the courts in civil disputes are classified as either equitable remedies or remedies at law, usually monetary damages *most cases are for monetary damages, but in some cases a remedy in equity is more appropriate

The Award:

*after the hearing the arbitrator reaches a decision, called an award *The arbitrator makes an award based on application of law to the evidence presented *Besides deciding if one party owes the other party cash, goods, or something else, the arbitrator decides how the parties will split their fee and the administrative fees

Pleading the Stage: The complain contains statements:

*alleging the essential facts necessary for the court to take jurisdiction *of the facts necessary to claim that the plaintiff is entitled to a remedy *of the remedy the plaintiff is seeking.

Arbitration: The advantages of using a neutral party, called an arbitrator or arbiter include:

*the arbitrator is mutually agreed upon by the parties and has the trust of both parties *Because the arbitrator is usually an expert in the subject matter, less time is needed to educate them about the dispute, which results in a faster resolution of the matter *Because arbitrators do not usually issue public decisions or hold public hearings, the parties can keep the evidence and decision private

Start of the Trial:

After the jurors have been sworn in, both attorneys make opening statements The attorneys tell the jury what the crucial fact are and how they will prove that those facts support their position

Orders of the Production of Documents:

An order for the production of documents allows a party access to information in the possession of the other party

Alternate Dispute Resolution:

Arbitration is the most widely recognized form of alternate dispute resolution (ADR) ADR consists of various ways to resolve disputes outside of the court system

Summary of Judgment:

At the close of discovery, either party may move for a summary judgment The key is that there are no differences over what happened, but that, despite those differences, when the court looks at the undisputed facts, it can apply the law to the facts and resolve the dispute.

Closing Arguments:

Before the case goes to the jury, the attorneys each present a closing argument They summarize the evidence for the jury in a manner most favorable to their case

Monetary Damages:

If a court finds that a party has suffered a legally recognized harm, monetary damages may be award

Equitable Remedies: Special Performance:

In equity, courts can order specific performance as a remedy and require that offending party to do what it had promised Special performance is more likely when the subject matter is land or rare properties, such as art, antiques, or even baseball cards, because such items may be unique and irreplaceable or because the other party may have incorrect substantial expense in expectation of the deal

Basic Trial Procedures: A distinctive element of our judicial system is that it is an adversary system of justice.

It requires that parties to represent themselves, usually through their lawyers, and to argue their positions before a neutral court.

Selection of the Jury:

Jury Selection begins when the clerk of the court sends a notice instructing citizens to appear on a particular day for jury duty *The people called are in a jury pool

Equitable Remedies:

The courts recognize there are times when monetary damages are either not practical or effective

Hearing Procedure:

The hearing is normally a closed-door proceeding conducted like a trial but without a trial's restrictive procedural rules.

Motion for Judgment Nowithstanding the Verdict

The judge is asked to hold that there were not legally sufficient grounds to support the jury's verdict and to either overrun the entire verdict or a portion of it.

Arguments before the Appeals Courts:

The parties present their arguments to the appellate court through written briefs and oral arguments, which focus on the law, not the facts of the case *It has the power to affirm, reverse, or modify the judgment of the trial court

Decision to Use a Jury:

The right to a jury does not have to be exercised. Prosecutors often request a jury trial in criminal cases even when defendants do not

Motion to Dismiss: File a motion to dismiss for failure to state a claim or a demurrer:

This is an assertion that even if the facts are true, the injury claimed by the plaintiff is one for which the furnishes no remedy

Selection of the Jury: The process used to select jury members is called:

Voir Dir The purpose is to determine whether a prospective juror is likely to be so biased that he or she could not reach a fair decision based on the evidence presented.

Orders of the Production of Documents: If a trade secret or other confidential information is involved:

a company can get a protective order that limits access to the material so as to ensure confidentiality

Injuncton:

a court order directing a person to do or not to do something

"Write of Execution":

a court order to an official, such as the sherif, to seize the property of the defendant to satisfy the judgment. Courts may order garnishment of a debtor's property, which usually involves an order to a third party who owes debtor money to pay the money to the plaintiff instead

Permanent Injunction:

a final court order, issued after the conclusion of the trial or as part of a settlement agreement This is usually in force indefinitely

Preliminary Injunction:

a longer term court order, usually in force until the dispute is resolved. An irreparable injury is generally one for which a payment of money would be insufficient to compensate the harmed party

Motion to Dismiss:

a motion to dismiss by the defendant asks the court to dismiss the case because it does not have jurisdiction over either the subject matter of the dispute or the defendant's person.

Depositions and Interrogatories:

a principal discovery tool is the depositions or the sworn, in-person testimony of a witness recorded by a court reporter

The Jury: There is no right to a jury trial when:

a private plaintiff requests an equitable remedy, rather than money damages, or in civil cases in which the government seeks non-criminal penalties for violations of federal law

Arbitration:

a process similar to litigation in which two or more persons agree to allow a neutral person or panel to resolve a dispute

Temporary Restraining Order:

a short term court order, generally lasting a few days, and is primarily used by a court to preserve the status quo until more formal hearing can be held

Tools of the Discovery Process: the discovery rules offer several ways to get information from an opposing part:

depositions, written interrogatories, orders for production of documents, requests for admissions, and orders for a mental or physical examination

Motion to Dismiss: The defendant may also file a motion to:

dismiss for failure to state a claim or a demurrer