Forms of Dispute Resolution Flashcards
Arbitrate
Binding non-court resolution by a paid third-party neutral
Getting an arbitrator
- R-15 Appointing the Arbitrator: “the AAA maintains a national roster of arbitrators and shall appoint arbitrators from this list to resolve parties disputes”
- R-19 Disqualification of Arbitrator: any arbitrator shall be impartial and independent and shall perform their duties carefully and in good faith
What can an arbitrator be disqualified for?
1.) Partiality or lack of independence
2.) inability of refusal to perform their duties with diligence and in good faith
3.) any grounds for disqualification provided by applicable law
How does arbitration work?
- often less formal than court but more formal than mediation
- rules of evidence may or may not apply
- arbitration is very confidential
- cheaper than litigation
- arbitrator issues an award at the end of the process
- you can (almost) never reverse an arbitration award
Exceptions to be able to reverse an arbitration award
- arbitration is required by statute rather than agreed on by contract OR
- plaintiff can prove the award was “procured by corruption, fraud, or other undue means” OR
- arbitrator is guilty of misconduct
Federal Arbitration Act (section 2)
agreement to arbitrate are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”
- can get out of arbitration act under circumstances like duress and trickery
Does an arbitral award have precedential value?
No, only a court case can do that
Is an arbitral award public/reported?
Usually not, it’s another reason why people use arbitration, to keep it out of the media
2022 FAA Amendment
at the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, no pre-dispute arbitration agreement shall be used
Negotiation
a settlement agreement
Mediation
non-binding use of a neutral to try to facilitate a settlement agreement
Litigation
go to court to get a decision that is binding (though subject to appeal)
Litigation - who is who?
- Plaintiff: the one who is suing
- Defendant: the one who is getting sued
- Judge: making decision of law and fact
- Jury: people we bring in to decide a claim
- Clerk of the Court: administrative heart of the court, often the person who deals with courtroom setup to emergency motions
- Witnesses: people from which all the evidence comes into the trial
Civil vs Criminal
- Civil cases: between people (including businesses) breach of contract or tort cases, if you lose you pay damages to the other party, maybe even punitive
- Criminal Cases: between govt and person (or business) govt proves person/business committed wrong against society, if you lose…punishment (jail or fine)
Procedural Law
laws about how the cases proceed through courts, there are federal rules of procedure for the federal courts and states have their own laws
Substantive Law
the laws about how we interact with each other and the govt, a court may apply substantive law from outside its jurisdiction depending on where the dispute arose
Limit on a court’s power
court can only decide a “genuine case or controversy”, cannot issue and “advisory opinion”, plaintiff has to have a real stake in the outcome of the case (“standing to sue”) & courts MUST have jurisdiction
Types of Jurisdiction
BOTH MUST BE MET
- Subject Matter: can this kind of court hear this kind of case?
- Personal: is it fair to make these parties litigate in this court?
Subject Matter Jurisdiction (State)
State court systems - broad subject matter jurisdiction…can hear almost any kind of case about state OR federal law
Subject Matter Jurisdiction (Federal)
Federal Court Systems - limited subject matter jurisdiction…can only hear cases that either:
- involved question of federal law (“federal question jurisdiction”) OR
- have plaintiff & defender from different states and more than $75k at issue (“diversity jurisdiction”)
Concurrent Jurisdiction
- for diversity cases and most federal question cases, both state courts and federal courts are empowered to hear the case
- the plaintiff can choose to file in either state or federal court, but a defendant may decide to “remove” a case from state court to federal court if there is federal jurisdiction
Personal Jurisdiction
Defendant is subject to suit in any state whether federal court or state court where:
- defendant is “at home” OR
- defendant is served with a summons while in that state OR
- defendant’s conduct relevant to the suit occured in that state (committed harm there, owns property at issue in that state, entered into contract in that state)
Attorney Client Privilege
not required to disclose to the other side your conversations with your attorney BUT:
- if you disclose your attorney/client communications to some third party, then privilege does not apply
- facts do not become privileged just bc you tell them to your attorney
Basic Steps of Civil Procedure
- Hire A Lawyer
- Summons and Complaint
- Motion to Dismiss (sometimes)
- Answer (and maybe counter or cross claim)
- Reply to counterclaim or crossclaim
- Disclosures
- Discovery
- Motion for Summary Judgement
- Trial
- Appeal to Court of Appeals (first appeal as of right)
File the Complaint
the complaint is the plaintiff’s “short and plain” statement of the basic facts and claims that is filed with the court, describes:
- parties
- basis for jurisdiction
- claims of plaintiff against defendant
- what the plaintiff wants the court to do
- jury demand
Summons and Complaint
the complaint start the lawsuit, and must be SERVED on the defendant with a SUMMONS. this usually requires personal service accomplished with either:
- through the sheriff’s office OR
- by a private process server (swears by an affidavit)
- sometimes by certified mail where permitted
Answer and/or Motion to Dismiss
defendant can either answer the complaint or, if there are grounds, could move to dismiss
- Motion to Dismiss: even if everything in the complaint is assumed to be true, there is still no grounds for holding the defendant liable
- Answer: defendant files in response to complaint and:
- responds paragraph by paragraph to each allegation
- asserts any affirmative defenses
- asserts any counterclaims or cross claim
Disclosures
most systems require that parties make disclosures without waiting for the other party to make requests, must tell the other party about:
- people who know facts that support your case
- documents that support your case
- insurance policies that apply
1.) DO NOT destroy evidence (Legal Hold)
2.) Key Cost-Saving: work with counsel to gather and organize documents
Discovery
parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case…info within this scope need not be admissible in evidence to be discoverable
5 Main Types of Discovery
- Interrogatories - written questions the other side must answer
- Requests for Admission - key facts the other side must admit or deny
- Requests for Production of Documents
- Requests for inspection - of property or for mental/physical exam
- Depositions
Motion for Summary Judgement
court can decide the claims without a trial if there is no genuine issue of material fact and the law as applied to the fact means that one party wins
Trial
- voir dire
- opening statements
- plaintiffs case (direct examinations, cross-examinations, re-direct)
- defendant’s case (same)
- closing statement
- jury instructions
- jury and/or judge deliberates
- verdict and/or judgement (if defendant defaults on payment, they can go to bank with judgement to retrieve assets)
Voir Dire
jurors may be struck for cause or by peremptory strike, can raise a batson challenge (requires counsel to explain)
Kinds of Witnesses
Fact - were there to witness
Expert - professional experts
Petition for Certiorari
petition to the court for review, supreme court usually accepts only if there is a “circuit split”
Res Judicata
a matter that has been adjudicated by a competent court and may not be pursued further by the same parties
