Chapter 3
Trials and Resolving
Disputes
Chapter Issues
• Basic Trial Procedures
• Procedures and Processes of Litigating a
Dispute
• Remedies in Civil Litigation
• Appellate Stage
• Alternative Dispute Resolution (ADR)
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Arbitration
Negotiation-Settlement
Mediation
Other forms of ADR
The Judicial System
• The court system is
adversarial(‫ )الخصومة‬in nature
• Parties have the responsibility for
bringing a lawsuit(‫)دعوى قضائية‬,
shaping issues and presenting
evidence(‫)دليل‬
• Lawyers represent the parties’
claims(‫)المطالبات‬
• Judges don’t investigate(‫)بحث‬
• Court applies legal rules( ‫القواعد‬
‫ )القانونية‬to facts presented
• Trials are often costly and
uncertain
• Complex facts, extensive
evidence(‫)دليل‬, mountains of
business records involved
• Juries tend to be less sympathetic
to businesses
Basic Trial Procedures
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Pleading Stage
Discovery Stage
Pretrial Stage
Trial Stage
Appellate Stage
Enforcement Stage
See Exhibit 3.2
The Pleadings Stage
• Formal statements(‫ )البيانات الرسمية‬made to the court by the
parties
• Jurisdiction(‫ )الوالية القضائية‬needed over subject matter &
parties(jurisdiction – right and power to interpret law)
• Notice of lawsuit(‫ )دعوى قضائية‬given by service of process by
summons (‫)استدعاءات‬
• Complaint(‫)الشكاوى‬
– Alleges(‫ )يدعي‬facts for jurisdiction & remedy/remedies
– Requests remedy(ies)
– See Exhibit 3.1 (Casino owner pokes a hole in a Picasso,
and sues Lloyds of London for compensation for losses
under his insurance policy with them.)
• Responses to Complaint
– Motion to Dismiss
• By defendant
– Answer (may include affirmative defenses)
– Counterclaim
Discovery Stage
(Legal Tools to Obtain Evidence)
• Rules of Civil Procedure set guidelines & limits to
the process
• Purposes to 1) preserve(‫ )الحفاظ على‬evidence(‫)دليل‬, 2)
limit element of surprise, 3) encourage settlement
• Depositions of parties and witnesses (including
experts)
• Interrogatories(‫ )االستجوابات‬of the parties(‫)األطراف‬
• Use of Expert Witnesses(‫)شهود‬
• Requests ( ‫ )طلب‬for Admissions(‫)القبول‬
• Orders of Production of Documents
• Physical( ..‫)فتاه‬/Mental(‫ )فتاه‬Examinations
• Impacts on business--expensive & time-consuming
• See Cooper Tire & Rubber v. Mendez
Cooper Tire and Rubber v.
Mendez
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Mendez was driving a minivan – 6 passengers
Rear tire, made by Cooper Tire, lost its tread. Minivan rolled over.
4 passengers were killed. Mendez and 2 other survived.
Examination showed nail had punctured the tire.
Mendez and others sued Cooper for product defect.
Jury awarded over $11 million damages. Appeals court affirmed.
Cooper appealed that expert testimony of Richard Grogan, on behalf of
Mendez, was inadmissible.
HELD: Grogan’s presentation of a theory of wax contamination at
manufacturing as a reason for the separation of the belts on the tire is
unreliable and should not be admitted.
Expert testimony is admissible if (1) the expert is qualified and (2) the
testimony is relevant and based on a reliable foundation.
Grogan is not a chemist, engineer or tire designer. Has a British national
certificate equivalent to a high school diploma. No post-secondary
degrees. Not accident reconstruction expert.
(CONTINUED…)
Cooper Tire and Rubber v.
Mendez, cont.
Grogan did work at Dunlop Tire Company in England, examining
tires, including those that had failed. He teaches courses on tire
failures and published a book entitled An Investigator’s Guide to
Tire Failures, along with articles on tire failures.
Grogan’s theory of wax contamination at manufacturing (creating
separation of tire belt or tread) is supported only by his book and
theory has not achieved general acceptance.
Cooper’s chemical engineer Herzlich and other Cooper experts (one
a chemist and former tire compounder; the other a chief chemist
at the plant where the tire was manufactured) testified that wax
migration is a normal, expected and understood phenomenon
occurring during manufacture and the life of the tire.
Cooper’s experts testified: Wax migration does not = a defect
Grogan’s novel theory, that is not supported by science, does not
meet the reliability standard for admission of expert testimony.
Grogan’s testimony is not evidence of a defect and tire failure.
REVERSED. Judgment rendered in favor of Cooper tire.
Pretrial Stage
• Summary Judgment—either party may
request
• Pretrial Conference—either party may
request
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Usually attorneys and judge attend
Simplify issues
Plan course of the trial
Judges get parties to drop certain parts of case
Helps to focus on key issues
Judges’ often encourage parties to reach out-ofcourt settlement
Jury Selection
• 6th and 7th Amendments gives right to a
jury(‫ )فتاه‬in certain cases
• If no use of jury, judge becomes trier of fact
• Selection of jury involves voir dire
• Attorneys ( ‫ )فتاه‬allowed limited number of
challenges to reject prospective jurors
without stating reason
• Usually 12 persons on jury panel
• Some states have fewer—such as 6 jurors
Trial Stage
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Opening Statements by attorneys(lawyers)
Presentation of Direct Testimony(‫)شهادة‬
Closing arguments(‫)المرافعات الختامية‬
Instructions to Jury (also called charges)
Verdict by jury. Judgment may be set aside for jury
misconduct.
• Motions For A Verdict(‫)حكم‬
– Motion For A Directed Verdict/Motion For Judgment As A
Matter of Law
• Cases have been presented, but before going to jury,
either party requests entering judgment in its favor
– Motion for Judgment As A Matter of Law/Motion For
Judgment Notwithstanding the Verdict (N.O.V.)
Remedies in Civil Litigation
(See Exhibit 3.4)
• Monetary
damages
– Compensatory
– Punitive or
exemplary
– Nominal
• Equitable
remedies
– Specific
performance
– Injunction
• Permanent
• Temporary
Appellate Stage
(Appeal Based on Error of Law)
• Arguments before the
court
– Written Briefs
– Oral Arguments
• Decisions by the court
– Majority opinion
– Concurring opinions
– Dissenting opinions
• Outcomes of
decisions
– Affirmed (declare
positively )(‫)وأكد‬
– Modified
– Reversed
– Remanded(‫)حبسه‬
Enforcement Stage
• If no further appeal is
available, judgment
becomes final
• It is res judicata
• Enforcement of judgment is
through writ of execution
• Court orders an official (i.e.
sheriff) to satisfy judgment
through an act (such as
seizure of property,
garnishment, etc.)
• A complexity that causes
parties to look for
alternative dispute
resolution
ARBITRATION(‫)تحكيم‬
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Most widely recognized form of ADR
Usually results are faster in resolution of matters(‫)تسوية المسائل‬
3rd neutral party or panel (usually expert) is arbitrator or arbiter
Parties agree upon this ADR in the contract or during a later
dispute
Arbitrator’s decision is binding
Arbitration decision is final and matter usually cannot be litigated
again or appealed
Usual rule: No right to go to trial (parties to the dispute give up
this right)
– Appeals are very specific and limited
Thousands of international disputes go to arbitration each year
Uniform Arbitration Act (UAA) upholds the integrity of this
process
The Arbitration Process
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Decided at time of making the contract or after dispute arises
Begins when party files a submission
Parties agree on arbitrator(s)
The hearing procedure
– Closed door
– Less restrictive procedural and evidentiary rules than a
trial court
– Arbitration associations have rules that guide
participants/arbitrators
• Good faith cooperation
• Voluntary and prompt exchange of documents
• Uncooperative parties may be required to pay fees and
compensation by arbitrator
The Arbitration Process . . .
• The award (decision)
– Usually given in writing within 30 days of close of
arbitration hearing
– Arbitrators have broad powers to decide remedies
• Appealing the award
– Attacks on arbitrators are rarely successful
– Errors of fact or law are not reviewable
– Grounds for overturning appeal: fraud, partiality,
serious procedural misconduct, excessive use of
power by arbitrator
– Arbitrators have wide latitude in awards
• Generally arbitration award is final
Voluntary and Compulsory
Arbitration
• Labor Contracts
– Unions
– Insurance contracts
– Stockbrokers
– Pro-baseball, football
• Public Sector Employment
– Police officers
– Firefighters
– Public school teachers
• See “Global Acceptance of
Arbitration”
• See also Cyberlaw:
“International Arbitration
and Mediation of Domain
Name Disputes”
“Global Acceptance of Arbitration”
• Over 100 nations have
signed the UN Convention
on the Recognition &
Enforcement of Foreign
Arbitral Awards
• In some countries, however,
it’s harder to receive
enforcement
– China and India
traditionally have had
reputations for nonenforcement, although
recent court decisions
are moving toward
enforcement
Cyberlaw: “International
Arbitration and Mediation of
Domain Name Disputes”
• World Intellectual Property Organization (WIPO) in Geneva
establishes international rules for trademarks and other I.P.
• WIPO has domain name resolution service to protect domains (i.e.
.mx for Mexico and .edu for education)
• WIPO has a Uniform Domain Name Dispute Resolution Policy
(UDRP) dealing with such problems as “cybersquatting”
• Parties go to Arbitration and Mediation Center
(http://arbiter.wipo.int) where experts handle disputes
• Fees are assessed
– If 1-5 names included in a complaint--$1500
– If 3 panelists are requested -- $3000
• Over 1000 disputes/year submitted to the Center
Negotiation
• Least formal form of ADR
• Parties decide to settle matter
between themselves
• Often use lawyers or
representatives, though not
required
– Lawyers, etc. are agents of
the parties of the dispute
• Negotiated settlement is
usually a contract, which is
enforceable, like other
contracts, by the courts
Stages of Negotiation
• Stage 1: Study issues and
information
• Stage 2: Exchange information
– Different styles: i.e.“tough
guy” vs. “problem solver”
• Stage 3: Work your strategy
– Usually means compromise
• Stage 4: Agreement is reached;
usually a contract is written
• Policy of the courts is to
enforce negotiated settlements
as most are contracts.
Mediation
• 3rd neutral person (mediator)
assists the parties of the
dispute
• Parties mutually decide on a
resolution
• Mediator makes suggestions
• Mediator’s suggestions are
NOT BINDING on the parties
• Parties may go to trial after
this ADR
• Mediation often helps to
maintain the relationship
between the parties
The Mediator
• Some states have no
requirements at law, but
most states are moving
toward some licensing
• Most people prefer a
trained or experienced
person
• If no requirements, the
mediator may be the
choice of the parties
• If mediator fails to act
professionally, may be
subject to liability to
one of the parties
The Mediation Process
• Mediator collects information, outlines key issues,
listens, asks questions, observes the parties, discusses
options, and encourages compromise
• Mediator often helps to draft the settlement agreement
• The settlement agreement is enforceable in court
• Mediator may assist in deciding the confidentiality of the
case
• If confidentiality is agreed upon, nothing can be said in
public
• Information revealed during negotiation or mediation not
to be used as evidence if the dispute goes to a later trial
Creative Business Use of Mediation
Example of Ford Motor Company
• Ford is an example of
efforts that try to avoid
“bad press” through
mediation
• First consumers
discuss complaint with
dealer & local district
office
• If no resolution,
complaint is next filed
with Ford Consumer
Appeals Boards
• Board’s decision:
binding on Ford but not
consumers, who can
still seek legal remedies
• Process encourages
dealer responsiveness
to consumer problems
Innovative Forms of ADR
• Alternative Dispute Resolution Act of 1998 directs federal
courts to implement a dispute resolution program, though
Congress has not funded the mandate
• Judges usually press for parties to negotiate a settlement
• Many courts have formal mediation or other ADR Programs
to resolve disputes
• Summary Jury Trial: The jury equivalent of a minitrial
– Advisory jurors are used; witnesses rarely used
– Judgment is not binding (though jurors don’t know this)
– Judge then meets with the parties to discuss decision
and encourage settlement.
– Dissatisfied parties may still take the case to court.
– Nothing learned in this trial can be used as evidence in
later full court proceedings.
– Courts have held that ADR proceedings are closed to the
public and the press.
Expanding the Use of ADR
(Congressional Encouragement)
• Congress encouraged use of ADR originally
in the Federal Arbitration Act
• Congress has enacted more recently statues
to encourage ADR
– The Judicial Improvements Act
– The Administrative Dispute Resolution Act
• States have been changing their rules of civil
procedure to encourage use of ADR
techniques
• The purpose is to reduce costs and delays
associated with court systems