CH 4 - ADR

Motion to dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

Julio is suing Sanchez for breach of contract. He wants to get some documents from Sanchez which he believes will help him prepare his case. What is the term for this procedure?

A request for production is a discovery request that enables a party to get documents, memorandums, notes, calendars and other items from the opposing side.

request for admissions

A set of statements sent from one litigant to an adversary for the purpose of determining what facts are in dispute and which facts both parties accept as true.

Informal ADR can take the form of

A settlement agreement, whereby one party agrees to a payment in exchange for the other party's promise not to sue An agreement to cancel a contract or to revise an existing contract to better reflect the parties' obligations and needs.

Asmita, a judge, is hearing a matter in which a full day trial is conducted before a jury. The lawyers present no live expert testimony and primarily conduct the proceeding through oral argument. At the end, Asmita will issue a nonbinding opinion. What is the term or name for this proceeding?

A summary jury trial is a half- to full-day trial that lawyers for both sides conduct before a jury and the judge issues a nonbinding, advisory opinion.

Bench trial

A trial before a judge without a jury

Which of the following is a private arbitration?

Private arbitration is when parties agree to an arbitration clause in a contract.

Class Action Fairness Act (CAFA)

Provides federal courts with the authority to scrutinize procedures for the review of class action settlements AND changes the rules for evaluating settlements Also provides for more judicial oversight of coupon settlements

Statute of Limitations

The time limit within which a lawsuit must be filed or the lawsuit will be barred forever Begins when plaintiffs injury occurs

Limits on discovery

(1) Privileged Information - All matters that are privileged against disclosure at time of trial are also privileged against disclosure thru any discovery method. Prime among these are attorney/client communications. (2) Work Product - Material prepared for or by a party in preparation for trial is discoverable unless it contains the theories, mental impressions, or litigation plans of the party's attorney. - if an attorney interviewed someone who died or moved far away that is discoverable

mini-trial

A condensed version of the case is presented to the top management from both sides, with an expert neutral party conducting the trial, allowing them to see and hear facts and arguments so more meaningful negotiations can take place.

Negotiation

A form of ADR because successful negotiations avoid litigation

pretrial conference

A meeting between the attorneys for the parties and the judge in the case several weeks prior to trial, with the objectives of encouraging settlement and resolving any outstanding motions or procedural issues that arose during the pleadings or discovery stage.

Mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

Motion for a directed verdict

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 her or his claim.

motion for summary judgment

A motion requesting the court to enter a judgment 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.

summary jury trial

An abbreviated trial conducted before a jury and a sitting or retired judge at which attorneys present oral arguments without witness testimony and the decision is nonbinding.

Post Trial

Appeal- only questions of law can be appealed; facts are decided by a jury (or possibly a judge in a bench trial) and are not subject to appeal; appellate judges consider transcript, appellate briefs, and oral arguments by attorneys Enforcement- writ of execution and writ of garnishment

The primary difference between arbitration and other ADR

Arbitration provides the parties with a decision

Opening statements

Attorneys' presentations of their theories of the case and what they hope to prove to the jury; made at the onset of the trial.

criminal case vs civil case

Civil cases are generally brought by private individuals or corporations seeking to collect money owed or monetary damages. A criminal case is brought by the local, state or federal government in response to a suspected violation of law and seeks a fine, a jail sentence or both.

Answer

Defendant's formal response to each paragraph of the complaint. Do if no motion to dismiss

request for production

Discovery tool in which one side asks the other side to produce documents relevant to the case. A request aimed at producing specific items to help one party discover some important fact in the case.

Turner brought a lawsuit against her employer Discrimco. Turner had signed an employment contract with Discrimco which contained a clause stating that all disputes between the parties were to be heard by an arbitrator in a binding hearing. Turner's lawsuit is based on sexual and racial discrimination and she is pursuing it under the federal Civil Rights Act. Discrimco has made a motion to dismiss the case on grounds that the matter is subject to binding arbitration. Which of the following is correct?

Discrimco is correct, Turner's lawsuit should be dismissed and she must undergo binding arbitration. The U.S. Supreme Court has held that even when an employee brings suit against an employer for violating federal antidiscrimination laws, that the FAA applies to arbitration clauses contained in contracts.

Unless protected by a legal privilege

Everything is subject to discovery

Scope of discovery

Everything relevant to a dispute is open to discovery, UNLESS the information is protected by a legal privilege Relevant information need not be admissible at trial so long as the discovery is reasonably calculated to lead to the discovery of admissible evidence

A Judge must be present during depositions to resolve disputes and ensure fairness.

False - A court reporter is present to make a transcript, but no judge is present during depositions.

Actual trade secrets of a company are exempted from discovery and need not ever be disclosed.

False - A trade secret may be discoverable if it is relevant to an issue in a case. The courts examine these situations very narrowly.

The term litigation refers to the trial but does not include pretrial events as well.

False - Litigation refers to pretrial and trial

Med-arb is a form of ADR in which both a mediator and an arbitrator work simultaneously with the disputing parties to resolve differences.

False - Med-arb consists of a limited period of mediation followed by arbitration should the mediation be unsuccessful.

Arbitration can at times be legally mandated, but mediation is entered into only on a voluntary basis.

False - Mediation, just like arbitration, can sometimes be required by statute or court procedure before bringing a case to trial.

For the courts to allow a lawsuit to proceed, both the plaintiff and the defendant must be able to prove standing or the suit will be dismissed.

False - Only the plaintiff

The Federal Arbitration Act enumerates specific procedures for conducting arbitration hearings.

False - The Federal Arbitration Act does not specify exact procedures for conducting arbitration hearings.

The Federal Arbitration Act provides a means for enforcement of arbitration agreements and decisions of arbitrators through the use of the state courts in the state in which the arbitration took place.

False - The Federal Arbitration Act provides a means for enforcement of arbitration agreements and decisions of arbitrators through the use of federal courts.

In National Football League Management Council v. Brady, the appellate court overturned the arbitrator's ruling because football player Tom Brady had not been provided adequate notice that suspension was within the League's range of punishments.

False - The appellate court held that Brady had not met the high standard required for courts to overturn an arbitration award.

Judge's role vs. jury's role

Finder of law vs finder of fact

Summons

Formal notification to the defendant that she has been named in the lawsuit and that her answer must be filed within a certain period of time. Mail or sheriff

Inculpatory evidence? Exculpatory evidence?

Guilty Innocent

Settlement agreements are

Informal ADR

Typical class action allegations

Illegal conduct such as workplace discrimination Involvement in unlawful transactions - consumer fraud Sale of a defective product - meds or items

Charging of the jury

Instructions given from the judge to the jury explaining how to work through the process of coming to a factual decision in the case.

Bennie was appointed by the state to act as a go-between, helping two parties to a lawsuit to resolve their dispute. Bennie's job did not allow him to make a final decision in the matter. Bennie is known as a/an: ______________________.

Mediator - Final decision

Expert Evaluation

Method of alternative dispute resolution in which an independent expert acts as the neutral fact-finder; particularly useful for parties involved in a business dispute where the issues are somewhat complex and related to the intricacies of a certain industry or profession.

Med-arb

Method of alternative dispute resolution whereby the parties begin with mediation and agree to submit to arbitration if mediation fails in a fixed time period.

Deposition

Method of discovery in which a party or witness gives sworn testimony prior to trial. Oral questions

Interogatories

Method of discovery in which one party submits written questions to the opposing party to gather evidence prior to trial. Only the parties involved answer these

Chan wants to file a lawsuit. What will be the first stage of litigation for him?

Pleadings - The pleading phase is the first stage of a litigation, followed by discovery, then the pretrial conference and trial.

The major formal phases of civil litigation occur in this order

Pleadings, discovery, trial, posttrial

Stages of Litigation

Prelawsuit Pleadings stage Discovery stage Pretrial conference Trial

If a plaintiff brings a civil lawsuit against a defendant for breach of contract, what burden of proof applies?

Preponderance of the evidence

Primary advantages of ADR

Reduction in costs and time Preservation of business relationships Involvement of expert neutral party Privacy

Standing

Requirement that, to maintain a lawsuit against another party 1. the party asserting the claim must have suffered an injury in fact 2. the harm must be direct, concrete, and individualized 3. an appropriate legal remedy must be available.

Federal Arbitration Act

Statute that provides for the enforcement of most arbitration agreements Made arb binding? 4 grounds where court can set aside arbitration decision 1. Arbitration involves corruption or fraud 2. The arbitrator exhibited inappropriate bias 3. Arbitrator commits procedural error resulting in prejudice 4. Arbitrator exceeded their powers or failed

Generally, everything relevant to a dispute is discoverable in a civil lawsuit unless protected by a legal privilege.

TRUE

direct examination

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's client.

Complaint

The first formal document filed with the local clerk of courts when the plaintiff initiates a lawsuit Plaintiffs pov, damages, and why

Jury Selection

The process of asking potential jurors questions to reveal any prejudices that may affect their judgment of the facts. Voir dire

cross-examination

The questioning of an opposing witness during a trial.

preponderance of the evidence

The standard of proof in a civil case in which a judge or jury must believe the plaintiff's story and evidence is stronger than the defendant's version.

motion for a judgment as a matter of law

To reverse the verdict of the jury because no reasonable jury could have heard the evidence presented at trial and rendered such a verdict judgement non obstante veredicto

Motion to dismiss for mistrial

To stop the trial in progress and dismiss it because of some extraordinary circumstance resulting in prejudice against one side or the other (rare in civil litigation)

A motion for a judgment as a matter of law is called a motion for a judgment non obstante veredicto in some states.

True

When the judge issues the jury instructions, the judge is said to be charging the jury.

True - A judge charges the jury by giving them instructions on how to work through the process of coming to a factual decision in the case.

A potential juror who worked with a litigant may likely be disqualified as a juror based on a challenge for cause.

True - A person's prior business relationships with a litigant may likely result in that person's disqualification based on a challenge for cause.

Legally mandated arbitration is nonbinding arbitration.

True - Legally mandated arbitration encourages settlement of disputes but is nonbinding, so parties may automatically appeal to the court system.

The American Arbitration Association provides mediation services as well as arbitration services.

True - The American Arbitration Association provides both mediation and arbitration services.

Discovery timing

Usually prohibited for a specific number of days after pleadings filed or until after a pretrial conference is held Can potentially get expedited discovery approved

Subpoena

a court order requiring appearance and/or testimony

Hung jury

a jury that cannot agree on a verdict

motion to compel discovery

a pleading asking the court to force the other side to produce the information

The major methods of "discovery" before trial are:

depositions and interrogatories, requests for admission, and requests for production

Finder of law

judge

Finder of fact

jury

class action lawsuit

lawsuit brought on behalf of a class of people against a defendant, e.g., lawsuits brought by those who have suffered from smoking against tobacco companies.

Mediation vs. Arbitration

mediation is voluntary arbitration is binding avoid binding arbitration if possible.

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider Binding...?

A class action must be by a group of people with

similar injuries that were caused by the same defendant. As more than one defendant caused these injuries, this is an invalid class action.

subpoena duces tecum

the court command to a witness to produce at trial a certain pertinent document he or she holds

Judge's role

the judge determines what evidence the jury can weigh and evaluate. the judge determines the competency of a witness and of evidence. the judge determines if a witness is qualified and if any privileges apply.