© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Chapter 3 Litigation and...

© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman

Chapter 3Litigation and Alternative Dispute

Resolution

Chapter 3Litigation and Alternative Dispute

Resolution

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The Pretrial Litigation Process

Pleadings Discovery

Dismissals and Pretrial Judgments

Settlement Conference

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The Pleadings

• Complaint

• Answer

• Cross-Complaint

• Reply

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Complaint and Summons

• Plaintiff files a complaint– Lists parties– Allege facts and laws

violated– Prayer for relief

• Court issues summons– Directs plaintiff to appear

and answer

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Answer

• Defendants must file answer admitting or denying allegations– If all allegations are

admitted, judgment entered against defendant

– If no answer is filed, default judgment entered

– May assert affirmative defenses

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Cross-Complaint and Reply

• The defendant sues the plaintiff for damages or some other remedy

• Original plaintiff must file a reply and serve on defendant

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Intervention and Consolidation• Intervention

– Other parties have interest in lawsuit and become parties

• Consolidation– Several plaintiffs have filed

lawsuits stemming from same situation

– Court will consolidate if no undue prejudice

– Reduce strain on court system

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Statute of Limitations

• A statute that 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 his or her right to sue.

• Federal and state governments have established statutes of limitations for each type of lawsuit.

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Discovery

• A legal process during which both parties engage in various activities to discover facts of the case from the other party and witnesses prior to trial.

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Discovery (continued)

• Discovery serves several functions:– Preventing surprise

– Allowing parties to thoroughly prepare for trial

– Preserving evidence

– Saving court time

– Promoting the settlement of cases

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Discovery (continued)

The major forms of discovery are:

• Depositions

• Interrogatories

• Production of documents

• Physical and mental examination

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Depositions

• Oral testimony given by party or witness– Under oath– Preserves evidence– Parties must give

depositions– Witnesses can be

compelled by subpoena

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Interrogatories

• Written questions submitted by one party to the other

• May require documents• Must be answered and

returned within a set time period

• Attested to

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Production of Documents

• Documents that parties request the other side produce or make available for review

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Examinations

• If the physical or mental condition of a party are at question, and examination by an expert may be required.

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Dismissals and Pretrial Judgments• Pretrial Motion

– A motion a party can make to try to dispose of all or part of a lawsuit prior to trial.

• Motion for judgment on the pleadings

• Motion for summary judgment

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Dismissals and Pretrial Judgments (continued)

• Motion for Judgment on the Pleadings

Motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts.

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Dismissals and Pretrial Judgments (continued)

• Motion for Summary Judgment– Motion that asserts that

there are no factual disputes to be decided by the jury.

– Judge can apply the proper law to the undisputed facts and decide the case without a jury.

– These motions are supported by affidavits, documents, and deposition testimony.

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Settlement Conference

• Federal court rules and most state rules allow for a pretrial hearing or settlement conference

• Ninety percent of all cases settle before trial

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Cost-Benefit Analysis of a Lawsuit• The following factors

should be considered in deciding whether to bring or settle a lawsuit:– The probability of winning or losing.

– The amount of money to be won or lost.

– Lawyers’ fees and other costs of litigation.

– Loss of time by managers and other personnel.

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Cost-Benefit Analysis of a Lawsuit (continued)

– The unpredictability of the legal system and the possibility of error.

– Other factors peculiar to the parties and lawsuit.

– The long-term effects on the relationship and reputation of the parties.

– The amount of prejudgment interest provided by the law.

– The aggravation and psychological costs associated with a lawsuit.

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The Trial

• Pursuant to the Seventh Amendment to the U.S. Constitution, a party to an action at law is guaranteed the right to a jury trial in cases in federal court.

• Most state constitutions contain a similar guarantee for state court actions.

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The Trial (continued)

• If either party requests a jury, the trial will be by jury.

• If both parties waive their right to a jury, the trial will be without a jury.

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Phases of a Trial

1. Jury Selection2. Opening Statements3. The Plaintiff’s Case4. The Defendant’s Case5. Rebuttal and Rejoinder6. Closing Arguments7. Jury Instructions8. Jury Deliberation9. Entry of Judgment

1. Jury Selection2. Opening Statements3. The Plaintiff’s Case4. The Defendant’s Case5. Rebuttal and Rejoinder6. Closing Arguments7. Jury Instructions8. Jury Deliberation9. Entry of Judgment

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The Appeal

• In a civil case,– either party can appeal the

trial court’s decision– Appeal can be filed once a

final judgment is entered.

• In a criminal case,– only the defendant can

appeal.

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The Appeal (continued)

• The appeal is made to the appropriate appellate court.

• Notice of appeal must be filed within a prescribed time after judgment is entered.

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Alternative Dispute Resolution (ADR)

• Methods of resolving disputes other than litigation.

• Developed in response to the expense and difficulty of bringing a lawsuit.

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Alternative Dispute Resolution (ADR)

Arbitration

Mediation

Conciliation

Minitrial

Fact-FindingJudicial Referee

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Arbitration

• Parties choose neutral third party to hear evidence and testimony and decide the case.

• Arbitrator makes a decision and enters an award.

• Arbitration may be binding or non-binding

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Key ADR Legislation

• Uniform Arbitration Act– Adopted by half of the

states.– Promotes the arbitration of

disputes at the state level.

• Federal Arbitration Act– Arbitration agreements

involving commerce are valid, irrevocable, and enforceable contracts.

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Mediation and Conciliation

• Mediation:– Parties choose a neutral

third party to assist them– Parties reach settlement– Mediator does not make

judgment or issue award

• Conciliation– Parties use an interested

third party to act as mediator

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Minitrial

• Short session in which lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute.

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Fact-Finding

• Process in which the parties hire a neutral party to investigate the dispute and report findings back to both sides

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Judicial Referee

• Court-appointed referee who conducts a private trial and renders a judgment

• Parties reserve their right to appeal