CHAPTER 4 - MANAGING DISPUTES

closing arguments

The statements presented by the parties to review the evidence, highlight the important points for the jurors, and point out the defects in the other side's case

verdict

a decision that is usually made by a jury, after careful consideration of the facts of a case

motion for judgement on the pleadings

a defendant's request to the court to move for judgement based just on the content of the pleadings

discovery

a fact-finding pre-trial procedure in which the parties obtain evidence from each other using legal methods

default

a failure to respond in a legal proceeding; the plaintiff is granted judgement because the defendant failed to show up

derivative suit

a form of class action suit in which shareholders sue on behalf of a corporation to recover damages for actions taken by the corporation

legal remedy

a form of compensation imposed under statutory or common law by a court

hung jury

a jury in which the jurors are deadlocked, unable to reach a verdict

summons

a legal document issued to the defendant, by a judicial or an administrative body, to respond to a lawsuit

request for production

a legal request made by one party that requires the other party to produce documents and other information specified in the request

summary jury trial

a mock trial where jurors give advisory verdict after hearing the summaries of evidence presented by the parties involved

mediation (types of ADR)

a process in which both parties meet with a neutral mediator who listen to each side explain its position -used in international transactions -mediator can offer suggestions for resolution -not binding

motion for summary judgement

a request for judgment that is applicable only when the moving party is entitled to a judgment under the law and when no issues of fact remain disputed

counterclaim

a response in the pleadings in the lawsuit in which the defendant, in affect, countersues the plaintiff, alleging a violation of right and damages against the plaintiff

Equitable Remedy

a type of remedy that decrees specific actions not covered by legal remedies, including injunctions

directed verdict

a verdict provide by the judge, when one of the parties of the case does not offer sufficient proof for the claim

Anya files a complaint of harassment in which she asks the court to order Victor to stop stalking and harassing her. In this scenario, Anya has asked for a(n): a. injunction. b. legal remedy. c. equitable remedy. d. pleading.

a.

If a potential jury member has expressed animosity toward a plaintiff during the process of voir dire, which is the appropriate dispute for the plaintiff's lawyer to make to that juror? a. A challenge for cause b. A peremptory challenge c. An arbitration d. An equitable remedy

a.

If the plaintiff has established a prima facie case, which of the following is true? a. The plaintiff can survive a motion for directed verdict. b. The defendant has lost the case. c. There can be no judgment non obstante veredicto. d. The defendant can win a motion for judgment on the pleadings.

a.

In criminal cases, the standard used for meeting the burden of proof is: a. proof beyond a reasonable doubt. b. proof by a preponderance of the evidence. c. a peremptory challenge. d. in personam jurisdiction.

a.

When does a default in litigation occur? a. When a defendant fails to respond to a complaint b. When a defendant fails to pay the judgment in a case c. When there is a judgment on case pleadings d. When there is a judgment non obstante veredicto

a.

Which of the following is the oldest form of alternative dispute resolution? a. Arbitration b. Mediation c. Medarb d. Summary jury trial

a.

Joshua purchased a new car from Hometown Motors. On the way home, the airbag deployed for no apparent reason. Joshua was forced to pull off the roadway and subsequently drove the vehicle into a tree and was injured. He feels that he can get a faster decision if he does not use typical litigation, but he wants a third party to act as judge and make a binding decision. Which type of dispute resolution would be best for Joshua? a. Mediation b. Arbitration c. Early neutral evaluation d. Minitrial

b. Arbitration is a binding decision made by a neutral third party

In the context of post-trial proceedings of a case, the moving attorney may ask the trial judge to reverse the decision of the jury in a motion called: a. a deposition. b. a summary judgment. c. a judgment non obstante veredicto. d. an arbitration.

c.

Once a complaint or petition of a plaintiff is filed with the clerk of an appropriate court, who is responsible for serving a summons? a. The judge in a case b. A defendant c. An officer of the court d. The jury

c.

When is a case tried before a judge and not a jury? a. When the lawyers for both parties are having difficulty with voir dire b. When one party desires a trial before a judge c. When both parties agree to a trial before a judge d. When summary judgment has been granted

c.

Which of the following is the purpose of a complaint? a. To allow a defendant a chance to respond to a plaintiff's allegations b. To serve process on a defendant c. To provide a defendant with a general statement of a plaintiff's claims d. To start an appeals process following a trial

c.

Which of the following occurred in the Dewey LeBeouf case? a. The lawyers were all convicted. b. The lawyers were all acquitted. c. The jury deliberated for 21 days. d. The case was dismissed.

c.

Alternative Dispute Resolution (ADR) - Alternative Means of Resolving Differences Outside of Courtroom Litigation

methods for resolving legal disputes apart from use of the legal system; includes arbitration, mediations, and other private mechanisms

opening statement

the summaries made by the attorneys of each party before evidence is presented that outline what each party hopes to prove and how it will be proved

Arbitrators have 30 days to issue a decision once the arbitration hearing is completed.

true

Binding arbitration ordinarily prohibits the parties from going to court after the arbitration decision had been issued.

true

In the context of expert testimony, courts must determine whether an expert's testimony reflects scientific knowledge or whether the testimony is contrived for the trial.

true

international chamber of commerce

voluntary international court that offers arbitration in international disputes

Summary Jury Trial (types of ADR)

-gives parties an idea about the jury's perceptions -used after discovery is complete

Arbitration advantages

-less formality -moves faster than a trial -handled privately -expert handles the cases

Arbitration

-oldest form of ADR -parties submit grievances and evidence to a third-party expert in an informal setting -american arbitration association provides many arbitrators and rules

Arbitration procedures

-parties agree to submit to arbitration -AAA can handle the proceedings for fee -demand for arbitration is filed -arbitrator is selected

International ADR -*Parties free to choose which courts will here their disputes*

-party autonomy - us courts are a popular choice

peer review

-review of management's actions against an employee by a group of peer employees -reduces litigation costs

request for admissions

Definition:a set of statements sent by the litigator asking the adversary to admit or deny certain facts or allegations

injuctions

Judicial orders that prohibit certain conduct or order certain acts

rent-a-judge

a private court system in which parties may have their case heard before someone with judicial experience without waiting for the slower process of public justice - pay fees for courtroom and judge ex: The people's court tv show

interrogatories

a set of questions presented by a litigator and answered by an adversary to clarify certain facts of a case

redirect examination

after cross-examination, the plaintiff may again question the witnesses, to clarify certain statements

Trenton was in a jewelry store when it was being robbed by Casey. Trenton has now been called as a witness in the trial for the theft. During the presentation of the case and evidence, Casey's lawyer is questioning him. What is this type of questioning called? a. Direct examination b. Cross-examination c. Redirect examination d. Prima facie examination

b. Cross examination is the defense (Casey's attorney) questioning the witnesses.

Charu ran into Daniel's mailbox and destroyed it. Daniel replaced the mailbox that day, but Charu now refuses to pay for the replacement. The case is going to trial. Both attorneys have just received copies of the pleadings. What do they have copies of? a. The motions that have been filed by both Charu and Daniel b. The summons that Charu received c. The complaint filed by Daniel and the answer filed by Charu d. Photographs, receipts, or other evidence that relate to the incident

c. The pleadings include the complaint and the answer.

Karolyn purchased a movie-theatre style popcorn maker from Party Supply Company. The glass overheated and shattered, injuring Karolyn. She wants restitution but does not want to sue the company. She feels that the best way to handle this would be to present outlines of evidence to a judge and panel members who will issue an advisory verdict to start the settlement process. What type of dispute resolution would be best for Karolyn? a. Arbitration b. Mediation c. Minitrial d. Summary jury trial

d. A summary jury trial involved presenting evidence to a judge and jury who then make an advisory verdict to start the settlement process

The International Chamber of Commerce is an arbitral organization created specifically to hear disputes between investors and the nation in which they have made investments.

false

alternative dispute resolution is managed by the courts

false

pleadings

formal statements that are the parties' positions in a case and include the plaintiff's complaint and the defendant's answer

statutes of limitations

the time limits unique to each state for filing suit

A summary jury trial occurs late in the litigation process.

true

International ADR -*International Center for Settlement of Investment Disputes*

- international arbitral organization for investors -investment contracts can provide for arbitrations by the ICSID

International ADR -*International Chamber of Commerce*

-*International Chamber of Commerce* -a private organization that handles 250 arbitration cases each year -has used arbitration since 1922

Arbitration disadvantages

-Arbitrator may not have legal training and may not understand the significance of legal points -Rules of evidence do not apply -Expense and complexity has increased -cost has increased

Early Neutral Evaluation (types of ADR)

-Consultant or volunteer gives parties an assessment of the position -Generally used prior to discovery -Saves expenses if parties settle following the evaluation

Medarb (types of ADR)

-Recent creation in which arbitrator first attempt to mediate settlement -If unsuccessfully the case goes to arbitration

motion to dismiss

a defendant's formal request to a court to dismiss a case

Which of the following would be the proper discovery mode for medical records in litigation? a. Deposition b. Interrogatories c. Request for production d. Summons

c.

burden of proof

the assignment of responsibility for proving the facts of a case

peremptory challenge

the attorney's private tool that can be used to strike potential jurors from the jury panel; used during voir dire

cross-examination

the defense's questioning of plaintiff witnesses

complaint

the first legal document that is filed in a lawsuit and outline the plaintiff's claims of rights

answer

the formal statement that explains the defendant's position in a case

petition

the party who appeals the lower court's decisions

prima facie case

the presentation of adequate evidence by the plaintiff to support a complaint or a claim and enable a verdict to be made

process servers

the private firms that are licensed to deliver summons

Federal Arbitration Act

-Passed to stop judicial interference with arbitration -Courts now rarely interfere with arbitration clauses in consumer contracts -courts now rarely interfere with arbitration decisions -consumer financial protection bureau has proposed eliminating arbitration requirements for consumer credit contracts

when you are in litigation -people begin civil lawsuits -- system does not do it for them -based on a claim of right -lawsuits are efforts of individuals to enforce their rights

1. filing a complaint - complaint is general statement of claims : describe, establish, class actions are often filed against businesses

instructions

The guidelines developed by the judge and all the attorneys in the case, to inform the jurors what the law is and how to apply the law to the facts presented

Johnson Knighton is an employee of PRG Consulting. He has been called for jury duty. One of PRG's clients is Highlight Corporation. Highlight is the defendant in the case for which Johnson has been called for the jury panel. The attorney for the plaintiff who is suing Highlight: a. could have Johnson struck from the panel for cause. b. cannot have Johnson struck just because Johnson's company has the defendant as a client. c. has no recourse because the jury is a wild card in litigation. d. can make as many peremptory challenges as he or she wants.

a. A juror can be removed for cause, which means the juror is incapable of making an impartial decision in the case. In this case, since Johnson is an employee of the company that includes Highlight Corporation in their clientele, he can be struck from the panel for cause

Realty Partners, Inc. is being sued by a buyer who bought a home listed by Realty Partners. Realty earned a commission on the sale. The buyer is suing because the house has termites. Realty had obtained an inspector's report that described the home as "termite-free." Realty has brought the inspector into the lawsuit (added inspector as a cross-claimant). In which of the following ways can Realty obtain relevant information? a. By requesting production of documents from the pest inspector b. By conducting deposition of the homeowner c. By demanding interrogatories from the pest inspection company d. By applying for a request for admission from the buyer

a. Realty needs the inspector's report and can propound requests for production of documents from the pest inspector.

Select all of the following that can be obtained during discovery. a. A plaintiff's medical records in a personal injury case b. The e-mails of partners in litigation over dissolution of the partners c. The notes of a plaintiff in a meeting with the plaintiff's lawyer d. The work product of attorneys

a. b.

Select all of the following that are advantages of arbitration over litigation. a. The dispute is resolved more rapidly. b. No cross-examination is allowed in arbitration. c. It is private. d. It usually costs less

a. c. d.

minitrial (types of ADR)

an alternative dispute resolution procedure where the parties have their lawyers present the strongest aspects of their cases to senior officials from both companies in the presence of a neutral advisor or a judge with experience in the field -advisor or judge makes the decision -can motivate parties to resolve differences even if the results are not binding

specific performance

an order of the court requiring a defendant to complete the actions required by the terms stated in a contract

Binding arbitration

arbitration form that makes the decision of the arbitrators nonappealable

12. Who among the following makes closing arguments? a. The judge b. The plaintiff c. The process server d. The jury

b.

If an American citizen is injured in another country, where would the citizen file suit? a. In the United States federal district court b. In the courts of the country where the injury occurred c. The case must go to arbitration because there is no court with jurisdiction. d. The citizen cannot file suit in either an American or the other country's court.

b.

Which of the following is a factor in the checklist for reviewing whether to pursue litigation? a. Open lines of communication b. Public relations issues c. Peer review d. Early neutral evaluation

b.

Jamie has been dunned by her creditors for payment of her credit card bills. "But I have disputes over some of those charges, and I want to go to court under the Fair Credit Billing Act," Jamie tells them. One of her creditors points out to Jamie that there was an arbitration clause in the terms and conditions associated with her credit card. To this, Jamie responds, "Credit card rights are given by federal law. I do not have to go to arbitration!" Which of the following is correct? a. Jamie is correct; federal credit laws prohibit arbitration. b. Jamie is incorrect; she can be required to go to arbitration. c. Arbitration applies only to Truth-in-Lending Act issues. d. Jamie can choose which type of legal action she wishes to take-either arbitration or litigation.

b. A consumer with a credit card must agree to the terms and conditions of the credit card issuer, which is a contractual relationship that can include provisions such as mandatory binding arbitration

Samuel Wasterson is the CEO of Galant, Inc. Galant is being sued by Webtech, a competitor, for antitrust violations. Webtech's CEO says that she met with Wasterson three times in 1993. She explains, "Check his calendar. Check his secretary's logs!" The meetings are a critical part of the Webtech case. Webtech's lawyers: a. will not be able to obtain the calendar or logs because of the privilege. b. will obtain the calendar and logs through mandatory discovery or a request for production. c. will have to show the relevance of the logs and calendars before they can get them. d. cannot obtain the calendar and logs because of privacy limitations.

b. The lawyers can obtain the calendar and logs through mandatory discovery or a request for production.

Ella Reiss was injured at a wedding reception in a private home. Ella tripped over a piece of rebar that was sticking from the end of one portion of a sidewalk leading to the front door. Ella's lawyer believes that the homeowners were aware of the rebar problem and that other guests to the home had tripped over it but not been injured. How can Ella's lawyer get the information about the homeowner's knowledge? a. The lawyer cannot get the relevant information because the lawyer cannot talk with the homeowners' lawyers. b. The lawyer can depose the homeowners. c. The lawyer can demand the homeowners to produce all the guests for an interview. d. The lawyer can sneak onto the property and take pictures.

b. Ella's lawyer can talk to the homeowners by deposing them

Alex was attending a party at his friend's house, but there was nowhere to park, so he parked across the street at Bentley's house. During the party, a storm blew over a tree in Bentley's yard, and it landed on Alex's car. Alex is now suing Bentley for the damages, but Bentley claims that Alex did not have permission to park in her yard. What type of motion would be the best for Bentley's attorney to make to get the case dismissed quickly? a. Motion for judgment on the pleadings b. Motion to dismiss c. Motion for summary judgment d. Motion for arbitration

c. A motion for summary judgment is used when no issues are disputed but a party is entitled to judgment under the law. In this case, the fact that the tree fell on Alex's car is not in dispute, but a matter of law-whether Bentley is responsible for the tree should be decided by the judge.

Sam Echols was injured when he was hit while crossing the road by a car driven by Becky Samuels. Echols's lawyer suspects that Ms. Samuels was not wearing her contact lenses at the time of the accident as she is required to do by law. After filing a suit, how can Echols's lawyer find out whether Ms. Samuels was wearing her contact lenses? a. By subpoenaing Ms. Samuels b. By a request to produce c. By a deposition of Ms. Samuels d. The information is privileged and non-discoverable

c. By conducting a deposition, Echols's lawyer can ask Ms. Samuels under oath if she was wearing her contacts on the day of the accident

Which of the following forms of alternative dispute resolution (ADR) involves a panel of fellow employees? a. Early neutral evaluation b. Mediation c. Summary jury trial d. Peer review

d.

Which of these is a kind of private court system in which parties may have their case heard before someone with judicial experience without waiting for the slower process of public justice? a. Arbitration b. Mediation c. Summary jury trial d. Rent-a-judge

d.

Rosario Mendes was injured at a wedding reception in a private home. Rosario tripped over a piece of rebar that was sticking from the end of one portion of a sidewalk leading to the front door. Rosario's lawyer believes that the homeowners were aware of the rebar problem and that other guests to the home had tripped over it but not been injured. How can Rosario's lawyer get the information about the homeowner's knowledge? a. The attorney cannot get the relevant information because the attorney cannot talk with the homeowner's lawyers. b. The attorney can only depose people who were injured by the rebar. c. The attorney can only depose witnesses to Rosario's incident. d. The attorney can depose the homeowners and others who have been guests.

d. Rosario's lawyer can depose the homeowner and non-party witnesses.

Arbitration decisions are always binding.

false

The International Chamber of Commerce has arbitration court that is rarely used to resolve international business disputes.

false

work product

he attorney's legal research, comments or reactions to a witness, thoughts, analysis, and case or trial strategy

judgement NOV

judgment notwithstanding the verdict or non obstante veredicto; the reversal of a jury verdict by the trial judge in cases in which the jury's verdict is clearly against the weight of the evidence

Trial Process - when you are in litigation

pleadings> discovery > pretrial work> trial> posttrrial work

nonbinding arbitration

preliminary step to litigation if one of the parties is not satisfied with the result in the arbitration

motions

procedures that involve requests to the court to take certain actions

direct examination

process of questioning the witnesses under oath, to help a case

class action suits

suit filed by a group of plaintiffs who have the same cause of action against one defendant

depositions

sworn testimony given outside the courtroom as part of the pre-trial discovery process