Civil Litigation and Alternative Dispute Resolution Flashcards
What are two alternatives for resolving disputes without litigation?
Mediation and arbitration
What types of relief are available in litigation?
Monetary damages, injunctive relief, specific performance, and declaration of rights
What is the American Rule?
Lawyers’ fees are not usually recoverable except in specific cases
What were the circumstances in Alyeska Pipeline Service Co. v. Wilderness Society?
A wilderness society sought to prevent an issuance of permits. Injunction was granted, but the law was later changed to allow construction to go forward. Wilderness society contends that it was acting as a private attorney general and is due lawyers’ fees. Lower court said Alaska was immune but the company could be required to pay one half
How did the court rule in Alyeska Pipeline Service Co. v. Wilderness Society?
A handful of exceptions to the American Rule are available (in cases of trusts, willful disobedience of a court order, and in cases of bad faith). The court concluded that it does not have the authority to carve out new exceptions, and the legislature can do so if it wishes. No fees were awarded
What is the process of pretrial litigation?
A plaintiff must first file a claim asking for relief. Pleadings are documents submitted to the court and necessary for the litigation record. Motions to dismiss (law does not recognize claim) or for summary judgement (law requires only one result, no need for a case) can then be filed. Next is discovery (documents, interrogatories, and depositions) from other parties and third parties.
What were the circumstances in Dondi Properties Corp. v. Commerce Savings & Loan Ass’n?
Plaintiff was failing to answer interrogatories, comply with prior court orders, misrepresenting facts, and withholding documents. This was slowing down the case and making it more expensive.
How did the court rule in Dondi Properties Corp. v. Commerce Savings & Loan Ass’n?
The court adopted the guidelines of professional courtesy from the Dallas Bar Association. The court was not inviting litigation but rather ensure proper practices are being followed. No dismissal is merited and no further responses can be filed by the plaintiff.
What is reviewed in appeals?
Legal principles and errors made by trial judges in interpreting the law. They are not retrials.
What makes collecting a judgement difficult?
A decision can be overturned or appealed; collection might not be possible until pending appeals are decided; an individual or organization may be protected from liability; bankruptcy can discharge debts
How does mediation work?
Two sides meet and have an opportunity to vent issues. Mediators do not issue opinions or binding decisions. Both parties must agree to a decision
How does arbitration work?
A dispute is submitted to a decision maker who typically has expertise. Arbitration is supposed to be cheaper than litigation, but arbitrators are incentivized to have longer and more contentions hearings. Arbitration decisions are enforceable unless fraud occurred or the agreement exceeded the powers given in the agreement to arbitrate.
