Courts and Alternative Dispute Resolution

1. Courts and Alternative Dispute Resolution Chapter 3

2. Judicial Review • Courts decide on the constitutionality of legislative and executive actions • Marbury v. Madison (page 67)

3. Jurisdiction • The authority of a court to hear and decide a specific action • juris = “law” + diction = “to speak”. • The “judicial power” or authority to act.

4. Personal Jurisdiction • Personal (or in personam) jurisdiction primarily is based on geography. • Courts have personal jurisdiction over persons residing and/or doing business within a particular county, district, or state.

5. Personal Jurisdiction Long-Arm Statutes • nonresidents of a state • subject to courts in other state • based on “minimum contacts” See Case 3.1 (page 68)

6. Personal Jurisdiction • “Where” is business on the internet located? • “Sliding Scale Test” • Substantial business conducted within state • Some interactivity • Passive advertising

7. Subject Matter Jurisdiction • The authority of a court to hear and decide the particular dispute before it. • A court’s subject matter jurisdiction is usually defined in the statute or constitution creating the court.

8. Subject Matter Jurisdiction • Limits to a trial court’s subject matter jurisdiction: • The amount in controversy • The subject of the lawsuit • Whether the crime alleged is a misdemeanor or felony

9. Subject Matter Jurisdiction • Concurrent Jurisdiction - When one or more federal court and one or more state court have subject matter jurisdiction over the same dispute.

10. Jurisdiction of Federal Courts • Federal district courts have two types of subject matter jurisdiction: • Federal question jurisdiction • Diversity jurisdiction

11. Jurisdiction of Federal Courts • Federal Question Jurisdiction • Arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty.

12. Jurisdiction of Federal Courts • Diversity Jurisdiction: • The amount in controversy exceeds $75,000; and • The lawsuit is between citizens of different states or citizens of a state and citizens of a foreign country.

13. Exclusive and Concurrent Jurisdiction

14. Structure of Federal Courts and Most State Court Systems Supreme Court Courts of Appeals District Courts

15. Original Jurisdiction • The authority of a court to hear and decide a dispute in the first instance. • Generally speaking, trial courts are courts of original jurisdiction, although the Supreme Court of the United States has original jurisdiction over a few types of disputes.

16. Appellate Jurisdiction • The authority of a court to review a prior decision in the same case made by another court. • The decision is binding on that court and any court below it.

17. Appellate Jurisdiction Appellate courts do not: • have a witness stand • have a jury box • hear any new testimony • admit any new evidence

18. Appellate Jurisdiction • The party that loses before an intermediate appellate court may appeal that court’s ruling to the jurisdiction’s supreme court or its equivalent. • However, supreme court review is optional by the supreme court.

19. U. S. Courts of Appeals and U. S. District Courts

20. Texas Court System

21. Venue • Within a particular jurisdiction, the most appropriate location for a trial to be held and from which a jury will be selected.

22. Standing to Sue • Standing An individual must have a legal and tangible stake in the controversy • Justiciable controversy The controversy must be actual (the courts will not decide a hypothetical situation)

23. Stages of a Lawsuit: Pleadings • Written documents that inform each of the parties of one another’s claims and defenses and specify the issues involved in the lawsuit.

24. Stages of a Lawsuit: Pleadings • Plaintiff’s Complaint or Petition - sets forth the claims asserted by the plaintiff—the party seeking affirmative relief.

25. Stages of a Lawsuit: Pleadings • Defendant’s Answer • Responds to the claims set forth in the Complaint or Petition • Asserts affirmative defenses • Asserts counterclaims

26. Stages of a Lawsuit: Pleadings • If the Defendant does not answer within the time allotted by the applicable rules, the Plaintiff may seek a default judgment.

27. Stages of a Lawsuit: Discovery • Discovery is the process of obtaining factual information from the opposing party or parties by means of written responses to interrogatories and requests for admission, requests for production of documents, and depositions.

28. Stages of a Lawsuit: Discovery • Requests for Production - written requests for documents relevant to the lawsuit (materials can be both hard copy and electronic compilations)

29. Stages of a Lawsuit: Discovery • Requests for Admissions - questions phrased in an “admit” or “deny” format, giving no opportunity for explanation, and binding the responding party to its admissions.

30. Stages of a Lawsuit: Discovery • Interrogatories - written questions related to the subject matter of the lawsuit which must be answered under oath.

31. Stages of a Lawsuit: Discovery • Depositions - testimony, under oath, recorded by a court reporter and often by videotape taken prior to trial.

32. Stages of a Lawsuit: Motions • Motion for Summary Judgment - a motion requesting the court to enter judgment, based on the pleadings and discovery to date. • Granted only if there are no material fact issues in dispute or “questions of fact”.

33. Stages of a Lawsuit: Trial • Trial may be with or without a jury. • In a bench trial, the trial judge decides all questions of fact and questions of law. • In a jury trial, the trial judge decides all questions of law, but the jury decides all questions of fact.

34. The Stages of a Lawsuit: Trial Jury Selection - “Voir Dire” • the process in which attorneys question prospective jurors to determine whether they are biased or have any connection with a party or the action or with a prospective witness.

35. The Stages of a Lawsuit: Trial • Opening Statements • The Plaintiff gets to begin • The Defendant may proceed next or wait until prior to the Defendant’s case.

36. The Stages of a Lawsuit: Trial • Plaintiff’s Case Presentation • Plaintiff gets to begin its case first • Plaintiff conducts direct examination of each witness • Defendant may cross examine each witness • Plaintiff “rests”

37. The Stages of a Lawsuit: Trial • Defendant’s Case Presentation • Defendant calls its first witness after completion of the Plaintiff’s case • Defendant conducts direct examination of each witness • Plaintiff may cross examine each witness • Defense “rests”

38. The Stages of a Lawsuit: Trial • Motion for Directed Verdict - In a jury trial, a motion for the judge to take the decision out of the jury’s hands and directs a verdict for the moving party because the other party has failed to provide sufficient evidence to prevail on its claims.

39. The Stages of a Lawsuit: Trial Closing Arguments • Plaintiff has right to open and close • Equal time allotted each party

40. The Stages of a Lawsuit: Trial • Verdict by the Jury (if a jury trial)

41. The Stages of a Lawsuit: Trial • Judgment • In a jury trial, the judge will grant judgment based upon the jury’s verdict. • In the absence of a jury, the judge simply grants the judgment on its own.

42. The Stages of a Lawsuit: Trial • Judgment Notwithstanding the Verdict • known as a “(Judgment N.O.V.” for Judgment non obstante verdicto • a motion for the court to enter judgment contradictory to the jury’s verdict. • based on “reasonable minds could not differ” concept

43. The Stages of a Lawsuit: Appeal • An appeal asks an appellate court with jurisdiction over the trial court to review and set-aside the trial court’s judgment.

44. The Stages of a Lawsuit: Appeal What is filed with the appellate court? • A transcript of the pleadings, motions, hearings, and trial before the trial court, and • A brief outline of the legal arguments supporting the appellant’s request to set aside the judgment.

45. The Stages of a Lawsuit: Appeal • Possible Appellate Rulings: • Affirm the trial court’s judgment • Reverse the trial court’s judgment based on “reversible error” and remand the case for further proceedings in the trial court • Reverse the trial court’s judgment based on “reversible error” and render a new judgment without any need for further proceedings by the trial court.

46. The Stages of a Lawsuit: Appeal Supreme Court Review • Discretionary Review (Writ of Certiorari) • Rule of Four • Petitions Granted Usually: -Important Constitutional Question -Conflict with other state or federal decisions

47. Alternative Dispute Resolution • Alternative Dispute Resolution (or “ADR”) is a variety of methods that seek to resolve disputes without resorting to a costly jury trial.

48. Alternative Dispute Resolution • Negotiation - between the parties directly, with or without attorneys.

49. Alternative Dispute Resolution • Mediation - Non-binding procedure utilizing the services of a neutral third party to assist negotiations.

50. Alternative Dispute Resolution • Arbitration - A binding form of mediation utilizing either one person or a panel of persons chosen by the court or agreed to by the parties (or both).