Trial Procedures, Claim/Issue Preclusion, Special Proceedings

Question 1

How is matter put on trial court’s calendar? How do you demand jury trial?

Answer 1

Either party can file note of issue that tells court “this case is ready for trial.” Make jury trial demand here.

Question 2

When is a party entitled to jury trial? 5 situations

Answer 2

1. Action seeking solely $ damages
2. Action to recover a chattel
3. Claim to real property
4. Annulment of a marriage
5. Divorce action w/r/t grounds for divorce

Question 3

Civil jury has ___ jurors. Unanimity required?

Answer 3

6 jurors. You need 5 jurors voting for it.

Question 4

Res judicata (claim preclusion): NY uses transactional approach to claim preclusion. Means? EXCEPTION?

Answer 4

When claim against particular D has been brought to final judgment on merits, all other claims by same P against same D are precluded if they arise from same transaction/occurrence (even if P’s new argument has different theories/remedies). EXCEPTION FOR MATRIMONIAL ABUSE CASES: you get second bite at apple to litigate personal injury tort claim after divorce case.

Question 5

Issue preclusion (collateral estoppel): avoid relitigation of prior fact issues. You need three things to invoke issue preclusion.

Can be used against party who wasn’t party to prior action?

Answer 5

1. Same fact issue;
2. Issue was actually litigated and decided in 1st case;
3. Party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the 1st proceeding.

CANNOT use it against someone who wasn’t party to prior case.

Question 6

1. What is a special proceeding?
2. Instances?
3. Reqs specific stat auth?

Answer 6

1. Streamlined procedure to get final judgment.
2. Probate proceedings, landlord/tenant, dissolution of corp, enforcement of arbitration, CPLR Art 78 proceedings
3. Yes, reqs spec stat auth.

Question 7

If someone seeks special proceeding when it should be suit, what does court does?

Answer 7

Court converts it into special proceeding.

Question 8

To commence a special proceeding the ________ files the _________________.

Answer 8

Petitioner files the complaint.

Question 9

The petition and notice of petition served on ____________.

Answer 9

Respondent.

Question 10

How do you serve respondent?

Answer 10

Same as serving process to ordinary action.

Question 11

In special proceeding, respondent must file answer and come in for return date, which is no sooner than _________ from _________________.
What if you need accelerated return date?

Answer 11

Return date no sooner than 8 days from service of process. For Art. 78 proceeding against govt, no sooner than 20 days.
Accelerate by getting order to show cause rather than notice of petition.

Question 12

Special proceeding usually decided on the papers, like ____________

Answer 12

summary judgment

Question 13

Arbitration and ADR: 1. Arbitration: def. 2. Arbitrators bound by substantive law?

Answer 13

1. Binding arbitration agreed on by K;

2. Arbitrators not bound by law;

Question 14

NY PUBLIC POLICY FAVORS ARBITRATION. When a party resists arbitration, judicial gatekeeping standard - ct decides FIVE threshold issues w/r/t arbitration, which are?
FYI, K right to arbitrate need not be bilateral.

Answer 14

1. Did the parties clearly agree in writing by K to arbitrate?
2. Is dispute w/in scope of arbitration clause?
3. Is arbitration clause valid? Only INVALID if parties arbitrating something against public policy OR clause itself was induced by fraud, duress, or coercion (severability: if clause itself is valid, must arbitrate whole K)
4. If there’s an express condition precedent to arbitration, has that occurred?
5. Statute of limitations: arbitrators can’t decide it.

Question 15

How do you bring arbitration threshold issues to court? 2 ways

Answer 15

1. If arbitration comes up in pending action and party makes MOTION TO COMPEL ARBITRATION AND STAY THE ACTION.
2. If no action pending, movant SERVES MOTION OF INTENTION TO ARBITRATE, which is served by same means as summons or cert. mail. Recipient can commence special proceeding to stay arbitration w/in 20 days of receipt of notice, raising any of 5 threshold issues. After 20 days, you’ve waived threshold issues.

Question 16

3 grounds for judicial review and vacation of arbitration proceeding:

Answer 16

1. Corruption, fraud, or misconduct in arbitration proceeding;
2. Bias on part of arbitrator who was chosen to be neutral;
3. If arbitrator has exceeded their power (this is a loser b/c arbitrators have unlimited power unless parties’ K says otherwise)

Question 17

Forms of ADR (four)?

Answer 17

1. Arbitration,
2. Mediation,
3. Neutral Evaluation, and
4. Summary Jury Trials.

Question 18

1. All forms of ADR are creatures of _________

2. Court can ___________, but not __________ parties to pursue ADR

Answer 18

1. Contract

2. Court can recommend, but not require ADR

Question 19

Which types of ADR are binding?

Answer 19

Just arbitration

Question 20

1. Mediation def. 2. Is mediation privileged?

Answer 20

1. non-binding where neutral mediator speaks to each party confidentially and then jointly to encourage settlement.
2. privileged if so K’d.

Question 21

1. “Neutral evaluation” def

Answer 21

1. Neutral expert receives condensed presentation of merits, and he predicts court’s outcome.

Question 22

1. Summary jury trial (SJT) def?

Answer 22

1. Agreement that includes participation of court = condensed trial with real judge and jury –> done in 1 day with lax rules of evidence. Can present narrative summaries of evidence by attorneys. Outcome can be binding or non-binding, but most people choose non-binding. Also, you can interview jurors afterwards.