Courts, Sources of Law, and Dispute Resolution

1. Courts, Sources of Law, and Dispute Resolution • Take Quiz 2

2. Constitutional Law Federal State Administrative Law Sources Of American Law Statutory Law Federal State Local Case Law and Common Law Doctrines

3. The Common Law Tradition • King’s Courts. The Common Law originated in medieval England with the creation of the king’s courts and the development of a body of rules that were applied throughout the land. • Year Books • Stare decisis.A doctrine under which judges “stand on decided cases,” or follow the rule of precedent, in deciding cases. This is the cornerstone of the common law tradition. • Brown v. Board of Education (p.72) • Leegin Creative Leather Products (p.73) • Discuss - Why so important to U.S. system? Leegin Belt

4. Civil Law versus Common Law

5. Constitutional Law • Supreme Law of the Land • States have Constitutions • State constitutions are supreme within state borders to the extent that they do not violate the U.S. Constitution or a federal law. • CASE 3.2Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002). P. 69 • Random drug testing of athletes is constitutional in Tecumseh Oklahoma school district.

6. Statutory Law • Created by Legislative Bodies. Laws or ordinances created by federal, state, and local legislatures and governing bodies. • Cannot Violate U.S. Constitution. None of these laws can violate the U.S. Constitution or the relevant state constitutions.

7. Administrative Law • Federal Administrative Agencies. Federal administrative agencies are created by enabling legislation enacted by the U.S. Congress. • Administrative Law. The rules, orders, regulations, and decisions of federal, state, or local government administrative agencies. • Agency functions include: • Rulemaking • Investigation and enforcement • Adjudication

8. US Constitution Federal Law State Constitution State Law Case Law Which source of law takes priority in the following situations, and why? A federal statute conflicts with the U.S. Constitution. A federal statute conflicts with a state constitution. A state statute conflicts with the common law of that state. A state constitutional amendment conflicts with the U.S. Constitution. A federal administrative regulation conflicts with a state constitution. Authority HierarchyWhich law wins?

9. US Statutes at Large/ USC Federal Case Law (federal reporters based on location) State Statutory and Case Law (see right) Regulatory Law (CFR) Plaintiffs and Defendants Appellants and Appellees Opinions (unanimous, majority, concurring, dissenting) Case Cite Meaning Williams v. Dominion Technology Partners, LLC, 576 S.E.2d 752 (Virginia, 2003). Williams is the Plaintiff. Dominion Technology is the Defendant. Case was decided by the Virginia Supreme Court. Reported in Volume 576, page 752 of the Southeast 2nd Reporter. Symbols for Plaintiff = π Defendant = Δ Finding and Analyzing the Law- terminology you will need to know

10. Classifications of Law • Substantive vs. Procedural law • Civil vs. Criminal law • Federal vs. State law • National vs. International law • Private vs. Public law Uniform Commercial Code (UCC)

11. International Law • Defined. A body of written and unwritten laws observed by independent nations and governing the acts of individuals as well as governments. • Sources of international law include: • National laws • Customs • Treaties • International organizations and conferences • Treaties • NAFTA • GATT • EU • International Organizations • UN • NATO

12. Courts

13. The Judiciary’s Role in American Government • Courts -- interpret and apply the law. • Judicial review—determining the constitutionality of laws—the judicial branch acts as a check on the executive and legislative branches of government – Marbury v. Madison (Marbury appointed as a federal judge by President John Adams. James Madison was to deliver the documents. Thomas Jefferson won presidential election and ordered that the remaining writs not be delivered. Elena Kagan: Confirmation Hearings 'Vapid and Hollow Charade' We will come back to the “commerce clause” Judge Elena Kagan Confirmation Hearings Extent of Commerce Clause Bush v. Gore (u-Tube clip) Justice Breyer on the US Supreme Court 

14. Group Presentation Citizens United v. Federal Election CommissionGroup 1 = limit campaign spending Group 2 = allow speech Explain law. Questions: Is corp speech the same as individual speech and therefore worthy of the same First Amendment protections - why or why not. Obama reacted by stating this is a "a major victory for big oil, Wall Street Banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."  Evaluate that statement. Newt Gingrich reacted by saying this is a victory for America's middle class.  Evaluate that statement http://www.cbsnews.com/video/watch/?id=6148956n

15. Basic Judicial Requirements Before a lawsuit can be brought before a court, certain requirements must first be met. These include: • Jurisdiction • Federal • State • Subject Venue Standing to Sue

16. Federal Jurisdiction • Federal Question jurisdiction exists when a dispute concerns federal law, statutes, or administrative regulation or treaties of the United States. • Diversity Jurisdiction exists in lawsuits between citizens of different states and the amount in controversy, exclusive of interest and all costs, exceeds $75,000. The “Erie Doctrine” set forth in Erie Railroad v. Tompkins, 304 U.S. 64 (1938).

17. Federal Jurisdiction • Natural person citizenship is legal residence or domicile. • Corporations may have dual citizenship based on: • Nerve Center Test; • Place of Operations Test; or • Total Activity Test. • Federal Courts have jurisdiction over United States.

18. Amazon Pulls Out of Colorado. Personal Jurisdiction on the Web, p. 70 Amazoncuts ties to all Colorado sales associates based on new Colorado online sales tax. 2011 update: Amazon sever ties with 10,000 small businesses in CA to avoid collecting CA sales tax. Personal Jurisdiction • Personal jurisdiction: court has legal authority over the parties to the suit. • Court can have jurisdiction based on: Defendant’s Residence, Defendant’s Act(s) or Location of Property in question. • “Long Arm” Statutes and the “Minimum Contacts” Test for jurisdiction over non-resident defendant if it purposefully availed itself of privilege of conducting business in forum state.

19. Choice of Forum • What forum governs? • What happens when there are conflicts among different jurisdictions? • Forum Non Conveniens. • CASE 3.3Radeljak v. Daimler-Chrysler Corp. (2006).Granted defendant’s motion to dismiss and did not force DCC to litigate in Croatia.

20. Venue Venue has to do with the most appropriate location for a trial, which is usually the geographical area in which the event leading to the dispute took place or where the parties reside.

21. Standing to Sue • A requirement that a party must have a legally protected and tangible interest at stake sufficient to justify seeking relief through the court system. • Plaintiff must be the proper person. • Plaintiff must have a personal interest in the outcome. • Plaintiff will benefit from a favorable ruling. • The controversy at issue must also be a justifiable controversy, one that is real and substantial, as opposed to hypothetical or academic. • CASE 3.1ACLU v. National Security Agency (2007).Case dismissed for lack of jurisdiction because plaintiffs had no standing to challenge the wireless wiretap program. Auto Plant Subsidy Case

22. State courts: Courts of general jurisdiction may be called by a variety of names. Courts of limited jurisdiction include: Divorce courts Probate courts Traffic courts Small claims courts Federal courts: Court of general jurisdiction is the U.S. District court. Courts of limited jurisdiction include: U.S. Tax Court U.S. Bankruptcy Court U.S. Court of Federal Claims Intermediate Appellate Courts Trial Courts Supreme Courts

24. Following a Case Through the State Courts A sample civil court case in a state court would involve the following: The Pleadings Pretrial Motions Discovery Post trial Motions Trial Pretrial Conference The Appeal

26. Adversarial System • Attorney Represents Client as an Adversary • Judge is Unbiased, Serves to Enforce Rules Work-Product

27. The Pleadings • Complaint: • Filed by the plaintiff with the court to initiate the lawsuit; served with a summons on the defendant. • Default judgment • Answer: • Admits or denies allegations made by the plaintiff; • may assert a counterclaim or • an affirmative defense. • Motion to dismiss: • A request to the court to dismiss the case for stated reasons, such as the plaintiff’s failure to state a claim for which relief can be granted.

28. Motion for judgment on the pleadings: Will be granted if the parties agree on the facts and the only question is how the law applies to the facts. The judge bases the decision solely on the pleadings. Motion for summary judgment: Will be granted if the parties agree on the facts. The judge applies the law in rendering a judgment. The judge can consider evidence outside the pleadings when evaluating the motion. Motion for Judgment Notwithstanding the verdict Pretrial Motions

29. Rudy Giuliani – I do not recall Deposition Clinton – What “is” is. Discovery The process of gathering evidence concerning the case. Discovery involves: • Depositions (sworn testimony by a party or a witness) • Interrogatories (written questions by one party towards the other made with assistance from the attorneys) • Various requests (for admissions, documents, medical exams) Ethical Consideration, p. 98 Ethical to bury opposing attorney in paper-work in response to a discovery request?

30. Document Retention and Destruction • Corporate documents, both tangible and intangible (computer hard drives and email) can be discovered and used to find the company liable. • Managers must have document retention policies in place. • Necessary Elements of a Document Retention Program: • Well-planned and systematic. • No destruction in the face of a potential lawsuit. • No selective destruction. • Sarbanes-Oxley – felony punishable by up to 20 years in prison To: David B. DuncanCc: Michael C. Odom@ANDERSEN WO: Richard Corgci@ANDERSEN WODate: 10/16/2001 08:39 PMFrom: Nancy A. TempleSubject: Re: Press Release draftAttachments: ATT&ICIQ; 3rd qtr press release memo.doc Dave - Here are a few suggested comments for consideration. -I recommended deleting reference to consultation with legal group and deleting my name on the memo. Reference to the legal group consultation arguably is a waiver of attorney-client privileged advice and if my name is mentioned it increases the chances that I might be a witness, which I prefer to avoid. -I suggested deleting some language that might suggest we concluded the release is misleading. -In light of the "non-recurring" characterization, the lack of any suggestion that this characterization is not in accordance with GAAP, and the lack of income statements in accordance with GAAP. I will consult further within the legal group as to whether we should do anything more to protect ourselves from potential Section 10A issues. Nancy

31. Pretrial Conference Either party or the court can request a pretrial conference to: • Identify the matters in dispute after discovery has taken place, or • To plan the course of the trial

32. Group Presentation Jury Selection CaseGroup 3 = JEB Group 4 = TB

33. Jury Selection The jury selection process, also known as voir dire, consists of questions directed to prospective jurors to assess potential bias. Jury video – McMahon, Philadelphia DA Training Video –

34. Trial The typical course of a trial can be diagrammed as follows: Opening Statements Plaintiff’s Introduction of Evidence Closing Arguments Defendant’s Introduction of Evidence

35. Facebook sued in 2008 for allegedly improperly sharing customer information. Facebook offered $9.5 million to settle – plaintiff’s attorneys' get 30% rest goes to a Foundation to promote privacy rights. Foundation established by Facebook. “Paying itself to get out of a broad range of legal issues.” Are class actions good/bad? Class Actions • If defendant’s actions affected a group of people, case may be brought as class action. • Written notice to all potential class members. (But a member may “opt out.”) • Advantages in product liability cases • A product liability class action suit has the following advantages: • Settlement binds present and future claimants, • Standardized payment schedules, • Some claimants can be excluded, and • Filing and settlement can occur in the same day. 2011 Supreme Court Case WallMart Class action not allowed for 1.6 million female workers.

36. Post Trial Motions • Ferlito v. Johnson & Johnson Products, Inc. • Mr. and Mrs. Ferlito went to a Halloween party dressed as Little Bo Peep (Mrs) and a sheep (Mr.) • Mr. Ferlito’s sheep costume made from J&J cotton balls • Mr. Ferlito lit a cigarette and his cotton balls caught on fire causing third degree burns. • Jury awarded $550,000 After a jury has rendered its verdict, either party may make a post trial motion. These include: • Motion for judgment N.O.V. (Notwithstanding the verdict) will be granted if the judge is convinced that the jury was in error. • Motion for a new trial will be granted if the judge is convinced that the jury was in error, or there was newly discovered evidence, misconduct by the participants during the trial, or error by the judge. Not actual picture of Mr.Ferlito

37. The Appeal • Either party can appeal the trial court’s judgment to an appropriate court of appeals. • After reviewing the record on appeal, the abstracts, and the attorneys’ briefs, the appellate court holds a hearing and renders its opinion.

38. Enforcing the Judgment • Securing a verdict does not mean there are assets to pay the judgment. • One of the primary factors to decide before filing suit is whether the defendant has resources or assets to pay a judgment.

39. Roles of an Attorney • Adviser – advises a client on steps to take to avoid possible legal problems. • Drafter – writes contracts and other documents for clients. • Negotiator – persuades, argues, or settles with another party on a client’s behalf. • Advocate – presents a client’s position in court. Attorney-Client Privilege.Attorney-client privilege prevents a court and other government bodies from compelling disclosure of the information. (WORK PRODUCT – NOT DISCOVERABLE)

40. Legal Representation and Alternative Dispute Resolution

41. Question • You owned 100 acres of valuable undeveloped residential real estate. You entered into a contract with a developer to develop the land on August 30, 2009. The developer agreed to pay you as follows: • $10,000 down, (paid August 30, 2009) • $100,000 on the one year anniversary, (paid August 30, 2010) • $500,000 on the two year anniversary and (due August 30, 2011) • $1,000,000 payment on the third anniversary. • The developed just called you and said it will not make the $500,000 payment. • The developer has put in roads and plotted the land but has failed to sell any lots. The land is currently worth less than the remaining contract payments. Would you sue? What do you do?

42. Decision to File a Lawsuit Decision to File Factors include: • Whether the law provides a remedy. • Whether the person can expert to prevail. • Whether the expected benefit will compensate for expenses and other costs, including any business lost as a result of the lawsuit and accompanying publicity. Decision to Defend Factors include: • Relationship Risk • Publicity Risk • Cost Risk (settlement may be cheaper)

43. The Search for Alternatives to Litigation Alternative dispute resolution (ADR) • Less costly • Less time-consuming • Private

44. The Search for Alternatives to Litigation Forms of ADR include: Negotiation Mediation Arbitration Summary Jury Trial Mini-trial Rent-a- Judge

46. Negotiation Exercise • Joan works as a paralegal at a 50 person law firm (30 attorneys and 20 support staff). Her immediate supervisor, Jim, tells sexual jokes that bother Joan. Once he showed her an x-rated cartoon that he thought was funny. Jim also ogles Joan and asks Joan to shut the door when they work together in his office. He sometimes touches her shoulder or pushes their chairs so close together their legs touch. This makes Joan uncomfortable. He also uses double entendres around her with one example being the time Joan said “it’s going to be a long hard night” (referring a tough case they are working on) and Jim replied “that’s what she said” and laughed. Assume Jim’s overall behavior amounts to illegal sexual harassment. • Joan talks to Jim about this and he tells her to lighten up and try to have some fun. Jim says he is just trying to reduce tension in an often stressful work environment. • Joan sues for sexual harassment. • You are on one side to settle the case. Take 3-4 minutes to plan strategy and then 6-8 minutes to negotiate a settlement. See additional confidential facts. • Joan: Groups 1 3 5 7 9 • Jim Groups 1 8 6 4 2 If you represent Jim, move your spot to do the negotiating (Joan teams stay put) Group 3 and 1 join together against group 8

47. How much money should she get? Text word “HOWMUCH” space and then an amount (i.e. “HOWMUCH $1”).What else? Text HOWMUCH plus amount to 37607 Or submit HOWMUCH plus message to http://pollev.com

48. How much money should she get? Text word “HOWMUCH” space and then an amount (i.e. “HOWMUCH $1”).What else?

49. MBA Information Session Looking for Volunteers (4-5) September 27 @ 6:30 Negotiation and Mediation • Negotiation • With or without attorneys • Simple and fast • No third party • Mediation • Third party involved • With or without attorney – usually no attorneys • Arbitration • More formal • Third party involved • Generally binding Key is to know what you want and when to you are better off walking away - Negotiation Exercise Start here week 3

50. Negotiation: Planning • Establish Best Alternative to a Negotiated Agreement (BATNA). • Establish your interests versus your position. • Evaluate each negotiating issue.