3/5/2008 9:53:00 PM
Chapter 3: Courts and Alternative Dispute
Resolution
I. The Judiciary Role in American Government


Role of the judiciary: to interpret and apply the law
Judicial Review
o Three branches of government

Legislative: makes the laws

Executive: enforces the laws
 Judicial: interprets the laws
o Judiciary determines whether the laws or the actions
of the other two are constitutional
o Judicial Review: the process by which a court
decided on the constitutionality of legislative
enactments and actions of the executive branch
II. Basic Judicial Requirements

JURISDICTION
o Before any court can hear a case it must have
jurisdiction over the person against whom the suit
is brought (defendant) or over the property involved
in that suit
o Jurisdiction over persons: in personum, over any
persons or business that resides in a certain
geographical area


State trial court, has jurisdictional authority
over residents in the state, such as a county
or district
The state’s highest court (state supreme court)
has jurisdiction overall residents of that
state
o Long-arm statute: a court can exercise personal
jurisdiction over certain out-of-state defendants
based on the activities that took place within the
state. The person must have certain minimum contacts
with that state for the statute to apply
o Jurisdiction over property: can issue jurisdiction
over property within its boundaries


In rem jurisdiction
Accident in FL, and def and plaintiff are from
two diff states, case could be brought in FL
state court on the basis of the court’s in rem
jurisdiction
o Jurisdiction over Subject Matter:

A limitation on the types of cases a court can
hear

In fed and state courts there are courts of
general (unlimited) jurisdiction and courts of
limited jurisdiction

Ex. court of general jurisdiction is a state
trial court or a federal district court

Ex. State court of limited jurisdiction:
 Probate court: state courts that handle
matters relating to transfer of a person’s
assets and obligations after that person’s
death, including custody and guardianship
of children

Ex. Federal court of limited subject-matter
jurisdiction:


bankruptcy courts: handle only bankruptcy
proceedings
in both
court’s
limited
also by
case is
whether
o Original and

the federal and state court systems, a
subject-matter jurisdiction can be
not only by subject of the lawsuit but
the amount in controversy, by whether a
a felony, or a misdemeanor, or by
the proceeding is a trial or an appeal
Appellate Jurisdiction
Court in which lawsuit begin are courts with
original jurisdiction

Federal court system, the district courts are
the trial courts

Any court having original jurisdiction is
normally known as a trial court. Courts having
appellate jurisdiction act as reviewing courts,
or appellate courts
o Jurisdiction of Federal Courts

Fed gov’t is a gov’t of limited power,
therefore jurisdiction of fed. Courts is
limited

U.S. Constitu. Estb. The boundaries for fed.
Jurisdiction

When a plaintiff’s cause of action is based in
part on the U.S constitution, a treaty, or a
federal law, then a federal question arises,
and the case comes to the judicial power of the
federal courts.

Federal question cases can originate in federal
court, but also don’t necessarily have to be
tried in federal court

People who claim constitutional rights violated
can begin suits in federal court

The plaintiff can file the action in either a
federal court or a state trial court b/c fed
and state courts have concurrent jurisdiction

Federal district courts can also exercise
original jurisd. Over cases involving diversity
of citizenship:



Cases btw. citizens of different states
A foreign county and citizens of a state
or of different states

Citizens of a state and citizens or
subjects of a foreign county
Or if the amount in controversy in more than
$75,000
o Exclusive Jurisdiction: Jurisdiction that exists
when a case can be heard only in a particular court
or type of court
o Concurrent Jurisdiction: Jurisdiction that exists
when two different courts have the power to hear a
case. For example, some cases can be heard in
federal or state court.

Jurisdiction in Cyberspace
o “The Sliding Scale” Standard: determines when the
exercise of jurisd. Can be placed over a an out-ofstate defendant is proper (minimum contact
requirements)

Venue
o Geographical district in which a legal action is
tried and from which the jury is selected
o Venue in a civil case is where the defendant resides
vs. venue in a criminal trial is where the crime
occurred

Standing to Sue
o Before a person can bring a lawsuit to court, the
party must have standing to sue or a sufficient
stake in the matter to justify seeking relief
through the court system

Standing to sue also requires that the
controversy at issue be a justiciable
controversy –a controversy that is real and
substantial, as opposed to hypothetical or
academic.
III. The State and Federal Court Systems

A. State Court Systems
o 1) trial courts of limited jurisdiction
o 2) trial courts of general jurisdiction
o 3) appellate courts
o 4) the state’s highest court (often called the state
supreme court)

generally any party in a lawsuit has the opportunity to
plead a case before a trail court and if they lose they
can go before at least one appellate court

If the case involves a federal statute or federal
constitutional issue, the decision of the state supreme
court on that issue may be further appealed to the U.S.
Supreme Court
o 1. Trial courts

courts in which trials are held and testimony
is taken

state trial courts have either general or
limited jurisdiction

trial courts that have general jurisdiction as
to subject matter can be called:


county, district, superior, or circuit
courts
state trial courts of general jurisdiction have
jurisdiction over a wide variety of subjects,
including both civil disputes and criminal
prosecutions

courts of limited jurisdiction are called:
special inferior courts or minor judiciary
courts

small claims court: are inferior trial
courts that hear only civil cases
involving claims of less thana certain
amount, such as $5,000. Conducted
informally, another inferior trial court
is the municipal court


decisions of small claims courts and
municipal courts may sometimes be appealed
to a state trial court of general
jurisdiction.
Courts of limited jurisdiction as to Subject
matter include domestic relations courts: which
handle primarily divorce actions and childcustody disputes, and probate courts as well.
o 2. Appellate, or Reviewing, Courts

Every state has at least one court of appeals,
which may be an intermediate appellate court or
the state’s highest court

Appellate court consists of a panel of 3 or
more judges, who review the record of the case
on appeal, including transcript of trial
proceedings, and determines whether the trial
court committed an error.

Question of Fact: in a lawsuit an issue that
involves only disputed facts, and not what the
law is on a given point. Questions of fact are
decided by the jury in a jury trial (or by the
judge if there is no jury)

Question of Law: concerns the application or
interpretation of law. only a judge, not a
jury, can rule on questions of law.
o 3. Highest State Courts



Usually called the supreme court
However in NY and Maryland the highest state
court is called the court of appeals

The decisions of each state’s highest court are
final on all questions of state law

Only when issues of federal law are involved
can a decision made by a state’s highest court
be overruled by the U.S. Supreme Court
B. The Federal Courts System
o 1) the U.S. District Courts (trial courts of general
jurisdiction) and various courts of limited
jurisdiction
o 2) U.S. Courts of Appeals (intermediate courts of
appeals)
o 3) the U.S. Supreme Court

unlike state courts federal judges are not
elected they are appointed by the president
o a writ of certiorari: is an order issued by the
court to a lower court requiring the latter to send
it the record of the case for review.

Court will not issue a writ unless 4/9 justices
approve it (“the rule of four”)
IV. Following a State Court Case

Litigation: the process of resolving a dispute through
the court system

A. The Pleadings
o The complaint and the answer (and the counterclaim
and reply) together make-up the pleadings
o They inform each party of the other’s claims and
specify the issues (disputed questions) involved in
the case
o The plaintiff’s complaint
o Process server issues a summons and a copy of the
complaint
o Default judgment: defendant’s failure to answer
results in awarding the plaintiff damages alleged in
their complaint.
o The Defendants Answer:

Either admits the statements or allegations set
forth in the complaint or denies them and
outlines any defenses that the defendant may
have
o Counterclaim is answered with a reply
o Motion to dismiss: requests the court to dismiss the
case for stated reasons

B. Pretrial Motions
o Motion for Judgment on the Pleading: or on the
merits of the case

Judge will grant motion only if there is no
dispute over the facts and the sole issue to be
resolved in a question of law
o Motion for Summary Judgment: the court may consider
evidence outside the pleadings, such as sworn
statements (affidavits) by parties or witnesses, or
other documents relating to the case

A motion for summary judgment can be made by
either party

A motion for summary judgment will be granted
only if there are no genuine questions of fact
and the sole question is a question of law

Unlike a motion for judgment on the pleadings,
a motion for summary judgment can be supported
by evidence outside the pleadings, such as
witnesses’ affidavits, answers to
interrogatories, and other evidence obtained
prior to or during discovery

C. Discovery
o A phase in the litigation process during which the
opposing parties may obtain information from each
other and from third parties prior to trial, such as
access to witnesses, documents, records, and other
types of evidence.

Depositions: sworn testimony by a party to the
lawsuit or any witness. Deponent answers
attorney’s questions and the ques. and answs.
Are recorded by an authorized court official
and sworn to and signed to by the deponent.

Interrogatories: are written questions for
which written answers are prepared and then
signed under oath.

D. Pretrial conference
o Informal discussion before trial btw judges and
attorneys
o Discuss possible settlement without trial

E. Jury Selection
o A trial can be held with or without a jury
o 7th amendment guarantees right to a jury in federal
courts when amount in controversy exceeds $20
o Voir dire: the jury selection process


A party may challenge a prospective juror for
cause –that is, provide reason why an
individual should not be sworn in as a juror
F. At the Trial
o Motion for a directed verdict:

In a jury trial, a motion for the judge to take
the decision out of the hands of the jury an to
direct a verdict for the party who filed the
motion on the ground that the other party has
not produced sufficient evidence to support her
or his claim

Post-trial motions
o Motion for judgment: “notwithstanding the verdict”
o Motion for a new trial: asking the judge to set
aside the adverse verdict and to hold a new trial

The Appeal
o A party must have legitimate grounds to file an
appeal, and must be able to claim that the lower
court committed an error
o A notice of appeal must be filed with the clerk




Filing the appeal
 Briefs
Appellate Review
Appeal to a Higher Appellate Court
Enforcing the Judgment
o Uncertainties of the litigation process and lack of
guarantees any judgment will be enforceable
V. Alternative Dispute Resolution (ADR)

The resolution of disputes in ways other than those
involved in the traditional judicial process.
Negotiation, mediation, and arbitration are forms of ADR.

Negotiation: process in which parties attempt to settle
their dispute informally, with or without attorney’s to
represent them

Mediation: methods of settling disputes outside the court
by using a neutral third party, who acts as a
communicating agent between theparties and assists them
in negotiating a settlement.

Arbitration: the settling of a dispute by submitting it
to a disinterested third party (other than the court),
who renders a decision that is (most often) legally
binding. (can be time consuming and expensive)
o Arbitration clause: contract/written agreement that
any dispute that arises under the contract will be
resolved through arbitration rather than the court
system.
o Issue of arbitrability: one party may file suit to
compel arbitration. The court in which the suit is
brought will decide not the controversy but the
arbitrability.
o Mandatory Arbitration in the Employment Context

Other types of ADR
o Assisted negotiation
o Summary jury trials (SJT’s): trial is held, but
jury’s verdict is not binding. the verdict acts only
as a guide to both sides in reaching an agreement
during the mandatory negotiations that immediately
follow the summary jury trial.
3/5/2008 9:53:00 PM
3/5/2008 9:53:00 PM