OBE 118 - LEGAL ENVIRONMENT OF BUSINESS
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OBE 118 - LEGAL ENVIRONMENT OF BUSINESS Dispute Resolution . PREFATORY THOUGHTS You are discussing with your attorney a legal problem. You are confident that your version of the facts in the dispute can be proved. You ask the attorney “does my cause has merit?

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  • PREFATORY THOUGHTS

  • You are discussing with your attorney a legal problem. You are confident that your version of the facts in the dispute can be proved.

  • You ask the attorney “does my cause has merit?

    • She says “yes.”

  • You ask if you pursue the case will you win?

    • She says: “I cannot predict the future.”

  • You ask “What are my chances? “

    • She says, “Assuming what you told can be proved” then:


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  • PREFATORY THOUGHTS

  •  She says, “assuming the story you have told is correct” then:

    • EXCELLENT


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  • PREFATORY THOUGHTS

  • Assuming a winning case

    • What is the importance of debt collection and the term judgment debtor?


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Alternative Dispute Resolution (ADR) describes alternatives to the traditional judicial resolution of disputes

  • Major approaches to dispute resolution

    Power

    Rights

    Interest


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ADR suggests a move from a rights approach to an interest based approach in dispute resolution.


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  • ALTERNATIVES TO LITIGATION INCLUDE based approach in dispute resolution.

  •  Arbitration

  •  Mediation

  • Negotiation

    Of less importance

    •  Private judging

    •  Ombudsperson

    •  Summary jury trial

    •  Mini-trial


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  • ARBITRATION based approach in dispute resolution.

  • Disputing parties agree to select a neutral third party (or parties) to hear and decide the dispute.

    •  Generally private, historically private.

    •  Requirement of (at least) the passive approval of government, as the awards are ultimately enforceable in the courts.


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  • TYPES OF ARBITRATION based approach in dispute resolution.

  •  Voluntary

    •  Pre-dispute agreement provides that arbitration will be used to settle disputes arising between the parties. Clause is part of an otherwise enforceable contract.

    •  Post -dispute agreement. Agreement entered into after a conflict arises.

  •  Involuntary

    • Judicial arbitration - statute requiring parties in certain cases to submit cases to arbitration as a pre-condition to a lawsuit. It is NON-BINDING.


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NATURE OF ARBITRATION (CONTINUED) based approach in dispute resolution.

 Federal and state statutes authorize & encourage arbitration

 Arbitration processes are usually less formal than courts.

 Power of arbitration based on the agreement of the parties, statutory law, and/or incorporated procedures.

 Power of arbitration can be lost at any time if both parties agree to handle the dispute in court.

 If arbitration clause exists but one party refuses to arbitrate the other party can seek a judicial order to compel arbitration.


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NATURE OF ARBITRATION based approach in dispute resolution.

 Issues to be heard, number of arbitrators, arbitrator power, processes to be used, and timing are all-dependent on the arbitration agreement.

Arbitration clauses

 provide the procedural and substantive boundaries of the case.

 arbitrators clauses are provided from organizations such as AAA


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QUALIFICATION AND SELECTION OF ARBITRATORS based approach in dispute resolution.

 Agreement of the parties names the arbitrator(s)

Use of standard clauses of professional associations. Such as the American Arbitration Association

Permanent referee for series of expected or possible disputes

 Selection from panels

 Expertise in subject matter of dispute

 Known in field

 Reputation for fairness

 Recommendation by board

 Trained in hearing processes


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WHY SELECT ARBITRATION? based approach in dispute resolution.

 Faster from filing to hearing

 Cheaper

 Private

 Less adversarial than litigation

 More certain resolution


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WHY SELECT ARBITRATION? (CONTINUED) based approach in dispute resolution.

PROBLEMS

 Private. Public is unaware of disputes in which they may have an interest. Potential litigants unaware of case outcome.

 True consent of parties to arbitration?

 Not always less expensive?

 Loss of right to correct errors of law as the right of appeal is very limited.


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Arbitrator Qualifications based approach in dispute resolution.

  • ?


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MEDIATION based approach in dispute resolution.

Mediation--A form of negotiation with the most significant attribute being the addition of a skilled third party expert who assists (facilitates) the parties to negotiate their own resolution.

Definition:

Intervention in a negotiation or a conflict by an acceptable third party with limited or no authoritative decision-making power but who assists the involved parties in voluntarily reaching a mutual acceptable settlement of the issues in dispute (Christopher Moore).


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  • MEDIATION (CONTINUED) based approach in dispute resolution.

  • Overall concept is simple. Sometimes referred to as the world’s second oldest profession. Exists in some fashion in most world cultures.

  • Two parties in conflict seek a third party to assist them in resolution of that conflict. The third party assists conflicting parties in communicating but does not decide the dispute.


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GENERAL NATURE OF AND CONTRAST WITH OTHER METHODS IN THE UNITED STATES

 Private while litigation is public.

 Parties remain in control of decision rather than relinquishing control to government or third party.

 Mediator facilitates agreement instead of imposing a resolution like in litigation or arbitration.

 Non-adversarial while litigation in U.S. is adversarial.


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GENERAL NATURE OF AND CONTRAST WITH OTHER METHODS IN THE UNITED STATES (CONTINUED)

 Occurrence of mediation suggests progress because it is voluntary. Parties may not agree on resolution but they agree on a method to resolve dispute.

 Mediation is less formal than other methods.


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HOW PROCESS IS SELECTED OR BEGUN UNITED STATES (CONTINUED)

 Pre-agreement

 Post-agreement

 One party seeks mediation and the provider contacts the other party

 Referrals


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PROCESS PROVIDERS UNITED STATES (CONTINUED)

 Non-profit generalists ADR providers - American Arbitration Association

 Community mediation centers such as the Sacramento mediation center

 State mediation providers such as the California center for public dispute resolution or the Iowa Peace Institute

 Private vendors


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CASES MOST APPROPRIATE FOR MEDIATION UNITED STATES (CONTINUED)

 The parties have a stake in resolving the dispute.

The parties share motivation for early settlement.

The parties are interdependent and must rely on the cooperation of one another to meet their goals or satisfy their interests.


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CASES BELIEVED INAPPROPRIATE FOR MEDIATION UNITED STATES (CONTINUED)

Disputes focused on beliefs.

Severe imbalance of power between the parties.

Unmanageable behavior on the part of either party


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MEDIATORS (CONTINUED) UNITED STATES (CONTINUED)

 QUALIFICATIONS

 Experience in dispute resolution including training and by temperament. Person is able to influence and cajole parties as if a group leader without having had the time to develop that level of respect.

 Area expertise. Understands the underlying nature of the dispute.

 Listener. Creative problem solver.

 Neutral


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  • POSITIVE ATTRIBUTES OR MEDIATION UNITED STATES (CONTINUED)

  •  Can be initiated early in the process providing opportunity to end conflict early with a reduction in conflict cost, legal fees, and psychological cost of conflict. Good public relations.

    • Studies show that up to 95% of civil lawsuits resolve short of trial. If that is true why not do it early?


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 Negotiation UNITED STATES (CONTINUED)

Private judging

 Ombudsperson

 Med Arb

 Summary jury trial

 Mini-trial


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negotiation UNITED STATES (CONTINUED)

  • Communication for the purpose of persuasion.

  • A process is which disputants communicated their differences to one another through conference, discussion and compromise in an attempt to resolve them.


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PRIVATE JUDGING UNITED STATES (CONTINUED)

Process authorized in a few states (including California) whereby at the parties request a court can refer a case to a neutral of the parties choosing who will hear and decide the case. Normal rules of pleading, evidence, and discovery apply and the decision can be appealed on the record to the public courts as if it were decided in a public court


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Ombudsman UNITED STATES (CONTINUED)

  • A neutral or impartial manager within an organization who may provide informal and confidential assistance to managers and employees in resolving work-related concerns.

  • Office is located outside ordinary line management structures.


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Med ARB UNITED STATES (CONTINUED)

Neutral is initially authorized to mediate a dispute and if the parties fail to negotiate a resolution is thereafter authorized to decide the dispute or any undecided issues. Abbreviation of terms mediation and arbitration.


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SUMMARY JURY TRIAL UNITED STATES (CONTINUED)

  • A non-binding abbreviated trial by mock jurors chosen from an actual or simulated the jury pool.

  • A judge or magistrate may preside.

  • Principals with authority to settle the case attend.

  • A resulting advisory jury verdict is intended to provide the starting point for settlement negotiations.


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MINI-TRIAL UNITED STATES (CONTINUED)

  • A private, voluntary, informal form of dispute resolution in which attorneys for each disputant make a brief presentation of his or her best case before officials for each side who have authority to settle.

  • Usually, a neutral, third party advisor is present at the hearing.

  • Following the attorneys' presentations, the principals attempt to settle the dispute.

  • The neutral third party may be asked to render a non‑binding advisory opinion regarding the dispute outcome if it were litigated.


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  • THE COURTS UNITED STATES (CONTINUED)

  • Authorized and funded by government to provide a neutral forum for the resolution of disputes between people and organizations


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TYPES OF COURTS UNITED STATES (CONTINUED)

  • TRIAL COURTS

    • Presentation of evidence

    • Determination of applicable law

    • Application of decided facts to applicable law


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TYPES OF COURTS UNITED STATES (CONTINUED)

  • Appellate Courts

    • Review of trial court record to ensure proper application of the law

    • Acceptance of facts offered in trial court

    • No evidence presented no jury present

  • California Supreme Court


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TYPES OF COURTS UNITED STATES (CONTINUED)

  • TRIAL – ROLE OF JUDGE AND JURY

    • Jury finder of fact. Judge determiner of law and instructions to jury

  • APPELLATE – ROLE OF JUDGES

    • Appellate Terms to know

      • Judicial review, brief, oral arguments, majority opinion, dissenting opinion, reversible error, reversal, remand, affirm, modify


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The Federal Court System UNITED STATES (CONTINUED)

United StatesSupreme Court

(Highest Appeals Court)

Nine Justices; appointed for life; may refuse to hear a case; final authority

Three judges hear each case, brought up from the District Courts.

Lower Appeals Courts

U.S. Court of Appeals for the Federal Circuit

Hears appeals from specialized trial courts.

U.S. Courts of Appeals (12 Circuits)

Click on any box below for a definition of the jurisdiction of that trial court.

U.S. District Courts

U.S. Bankruptcy Courts

U.S. Court of International Trade

U.S. Tax Courts

U.S. Patent & Trademark Office

U.S. Claims Court

Primary Trial Court

Trial Courts of Limited (Specific) Jurisdiction

Various Federal Agencies

Trial Courts of Limited (Specific) Jurisdiction


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The California Court System UNITED STATES (CONTINUED)

7 justices-Appointed by Governor confirmed by Commission. Lawyer for 10 years

Serve for 12 year term. Thereafter elected for additional terms.

Supreme Court

Courts of Appeal

6 Districts

105 Judges. Same methods & qualifications as Supreme Court

Sit in 3 judge panels

Superior Court

One Court for each County

Alpine County 2 judges

Los Angeles County

8 Divisions at over 50 locations

Electedby County voters for 6 year terms. Vacancies appointed by governor. Lawyer for 10 years

8.5 million

cases annually


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ADVERSARY NATURE OF US COURTS AND US LEGAL SYSTEM UNITED STATES (CONTINUED)

 Burden is on the parties to begin the process and to bring information to the attention of court. Essential requirement of a moving party.

 Court is a neutral arbiter.-Primarily a processing agent.

 Self-interest of litigants is thought to insure adequacy of information for the finder of fact to use.


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  • ADVERSARY NATURE OF US COURTS AND US LEGAL SYSTEM (CONTINUED)

  •  Each party is independently responsible for presenting its case.

  • Competitors (litigants, parties, and advocates) are openly partial and biased for their side.

  •  A premium is placed on advocacy skills, being able to articulate ideas clearly and presenting information in both written and oral form, to convince decision-makers of the merits of a cause.


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ADVERSARY NATURE OF US COURTS AND US LEGAL SYSTEM (CONTINUED)

The counter system is an inquisitorial system. The judge investigates the dispute, questions witnesses and independently seeks out evidence. The attorney’s role is less critical to the administration of justice.


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Jurisdiction (CONTINUED)

  • From Latin Juris and Dico meaning, “I Speak By the Law.”

  • When used in reference to the courts, the term refers to power and authority over a matter


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JURISDICTION (CONTINUED)

  • Subject matter jurisdiction

  • Jurisdiction of the cause

  • Also refers to geographical boundary of an independent government unit


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SUBJECT MATTER JURISDICTION (CONTINUED)

 Power of the court to hear cases of a general class

 Determinates Dollar amount pled Criminal action Remedy requested Nature of problem



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Adversary System-remember (CONTINUED)

  • The party seeking redress initiates a lawsuit by filing a complaint, petition in equity or some form of motion


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Initial Steps (CONTINUED)

Retention of counselPleading -- plaintiff 1. Complaint 2. Summons 3. Service of process (obtaining jurisdiction) 4. Reply if necessary

Pleading -- defendant 1. Answer 2. Demurrer or motion to dismiss 3. Cross-complaint or Counter-claim


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Complaint (simple) (CONTINUED)

  • States jurisdiction information

  • Recites facts giving rise to a legal claim

  • Requests remedy


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A Sample Complaint (CONTINUED)

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL NO. 9-1047

Cantwell Muckinfuss, PLAINTIFFvs. COMPLAINTKissy Angel, DEFENDANT

Comes now the Plaintiff and for his cause of action against the defendant alleges and states as follows:

1. This action is between plaintiff, who is a resident of the state of California and defendant who is a resident of the state of New York. There is diversity of citizenship between parties.


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Sample Complaint continued (CONTINUED)

2. The amount in controversy, exclusive of interest and costs, exceeds the sum of $75,000.

3. On September 10th, 2002 plaintiff, Cantwell Muckinfuss, was exercising good driving habits and reasonable care in driving his car through the intersection of Broadway and Pennsylvania Ave in New York City, New York. When defendant, Kissy Angel, negligently drove her vehicle through a red light at the intersection and collided with plaintiff’s vehicle.


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Sample Complaint continued (CONTINUED)

4. As a result of the collision plaintiff suffered severe physical injury, preventing him from working, and causing property damage to his car. He incurred costs including: $85,000 in medical bills, $25,000 in lost wages, and $9,000 in automobile repairs. Plaintiff demands judgment against the defendant for the sum of $119,000 plus interest at the maximum legal rate and the cost of this action.

BY [S]____________ROSIE F. RAGBIT ATTORNEY FOR PLAINTIFF100 MAIN STREET NEW YORK, NEW YORK


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Mid-Process of Civil Litigation (CONTINUED)Discovery

  • The process of gathering evidence on the case

  • Purpose of Discovery

    • Educate each party

    • Eliminate surprise

    • Promote settlement

  • What reason for each purpose?

  • What are the negatives if any regarding discovery?


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Judgment on the Pleadings (CONTINUED)

Motion to Dismiss

Summary Judgment

Self-explanatory

Can be made at any time after initial pleadings.

After discovery when there are no essential facts in dispute

Mid-Process of Civil LitigationMotions


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Deposition (CONTINUED): Questioning of Parties and witnesses under oath

Interrogatories: Written questions to apposing party requesting written answers

Motion to Produce: Request for documents and things

Request for Admission: Request of opposing party to agree on certain facts

Mid-Process of Civil LitigationDiscovery


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Purposes of Discovery (CONTINUED)

Efficiency:

Educate each party

Promote settlement

Fairness: Eliminate surprise

Discovery


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What is the role of the Judge in the Trial? (CONTINUED)

  • Rule on matters of law

  • Keep order in the trial

  • Insure a fair trial


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What is the role of the Jury in the Trial? (CONTINUED)

  • Is it possible there will be no jury?

  • How does that change a trial?


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VOIR DIRE (CONTINUED)

Challenge for Cause

Peremptory Challenges

Jury Selection


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Moving party and degree of belief (CONTINUED)

Who has burden?

Nature of the burden?

Preponderance of the evidence

Clear and Convincing

Beyond a reasonable doubt

Jury Decision: BURDEN OF PROOF


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State (CONTINUED)

34 states require less than unanimous in civil cases

California ¾ or 9

Federal

Unanimous verdict usually required

Jury Decision: Agreement


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PRESENTATION OF CASE (CONTINUED)

  • RULES OF EVIDENCE

    • Relevance

    • Hearsay

    • Best evidence

  • TYPES OF EVIDENCE

    • Direct

    • Circumstantial

    • Opinion

    • Expert

    • Presumptions


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Trial Motions (CONTINUED)

  • Directed Verdict:

    • At close of Plaintiff’s case when Plaintiff has presented no credible evidence supporting claim


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  • PROCESS OF A CIVIL DISPUTE THROUGH THE COURTS (CONTINUED)

  • Verdict & Judgment

  • Post trial1. Motions

    • Directed verdict--before verdict

    • Judgment not withstanding the verdict-after verdict

    • New trial

  • Appeal.

  • Collection.A. Writ of executionB. Order of examinationC. Garnishment


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