Chapter 6
Civil Litigation and Its Alternatives
Litigation v. Alternative Dispute Resolution
o What is litigation?
o Alternative approaches to litigation
o Alternative Dispute Resolution (ADR)
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Search for Alternatives to Litigation
o Trials are a means of dispute
resolution that are very expensive
and sometimes take many months to
resolve.
o There are “alternative dispute
resolution” (ADR) methods to resolve
disputes that are inexpensive,
relatively quick and leave more
control with the parties involved.
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ADR
o ADR describes any procedure or device
for resolving disputes other than the
traditional judicial process.
o Unless court-ordered, there is no record
which is an important factor in
commercial litigation due to trade
secrets.
o Most common: negotiation, mediation,
arbitration.
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Negotiation and Mediation
o Less than 10% of cases reach trial.
o Negotiation is informal discussion of
the parties, sometimes without
attorneys, where differences are aired
with the goal of coming to a “meeting
of the minds” in resolving the case.
o Successful negotiation involves
thorough preparation, from a position
of strength.
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Assisted Negotiation
o Mini-Trial: Attorneys for each side
informally present their case before
a mutually agreed-upon neutral 3rd
party (e.g., a retired judge) who
renders a non-binding “verdict.”
This facilitates further discussion and
settlement.
o Expert evaluations.
o Conciliation: 3rd party assists in
reconciling differences.
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Mediation
o Involves a neutral 3rd party
(mediator).
o Mediator talks face-to-face with
parties (who typically are in different
adjoining rooms) to determine
“common ground.”
o Advantages: few rules, customize
process, parties control results (win-win).
o Disadvantages: mediator fees, no
sanctions or deadlines.
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Arbitration
o Many labor contracts have binding
arbitration clauses.
o Settling of a dispute by a neutral 3rd
party (arbitrator) who renders a
legally-binding decision; usually an
expert or well-respected
government official.
o More formal than negotiation or
mediation – similar to trial
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Arbitration Process
o Contracts include a binding arbitration
clause or through a submission agreement.
o Case begins with a submission to an
arbitrator. Next comes the hearing where
parties present evidence and arguments.
Finally, the arbitrator renders an award.
o Courts are not involved in arbitration unless
an arbitration clause in a contract needs
enforcement.
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Setting Aside an Arbitration Award
o Losing party may appeal the decision
to a court.
o Winning party may ask a court to
enforce the award.
o Court’s role is limited to determining
whether a valid award exists
o Facts and legal conclusions are
usually final.
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Setting Aside an Award
o
o
o
o
Award result of fraud or corruption.
Arbitrator bias.
Arbitrator abuse of discretion.
Arbitrator exceeded powers.
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Disadvantages of Arbitration
o Results may be unpredictable
because arbitrators do not have to
follow precedent or rules of
procedure or evidence.
o Arbitrators do not have to issue written
opinions.
o Generally, no discovery available.
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Introduction to a Civil Lawsuit
o “Road to justice” in civil lawsuit can
consume much time and money – may not
conclude for several years due to delays,
appeals, etc.; attorney’s fees and costs may
be in 10’s of 1,000’s even in average case.
o Cost/benefit analysis – probability of
winning; expense vs. relief; value of early
settlement.
o Many procedures to follow before, during
and after trial, such as filing deadlines, rules
of evidence, motions, etc.; noncompliance
with these procedures may result in
monetary, evidence and/or terminating
sanctions.
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Stages of Litigation
o
o
o
o
o
o
o
o
Informal Negotiations.
Pleadings.
Service of Process.
Defendant’s Response.
Discovery.
Pre-Trial.
Trial.
Post-Trial.
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Litigation- Pleadings
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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Pleadings
o Accident, breach of contract or other incident(s) – may be one
event or series of events over days, weeks, months or years.
o Party consults with attorney – initial client interview; review facts,
documents, etc.; signing of retainer agreement; evaluate
deadlines such as statute of limitations.
o Informal investigation and/or settlement negotiations prior to
lawsuit; note that investigation and negotiation can happen at
any time during lawsuit.
o Exhaust administrative remedies (will be applicable in cases vs.
gov’t only) – can have quick deadlines.
o Filing of complaint and summons issued –
o complaint specifies parties
o ultimate facts in support of causes of action (what happened?) and
relief sought (prayer);
o summons is pre-printed form identifying parties, court’s and plaintiff’s
attorney’s contact information, and admonition to respond within
certain time.
o Sample complaint: Page 114
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Pleadings-Service of Process
o Defendant served with
Complaint and Summons.
o Court acquires Personal
Jurisdiction over Defendant
(person or corporation).
o Corporate Defendants are
served via Registered Agent.
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Pleadings-Answer
o The Answer is the Defendant’s
response to the allegations
stated in the Plaintiff’s Complaint.
o In the Answer, the Defendant
must specifically admit or deny
each allegation in the
Complaint.
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Pleadings-Answer
oDefendant’s Answer:
oMay state General Denial.
oMove for Change of Venue.
oAllege Affirmative Defenses.
oCounter Claim against Plaintiff.
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Dismissal and Judgments Before Trial
o Defendant can move the Court to
dismiss the Action for various
reasons, such as:
o The Court lacks jurisdiction.
o The Plaintiff has failed to make all of
the allegations, in his Complaint, that
the law requires (i.e., the plaintiff has
failed to state a cause of action).
o Court looks only at facts in Complaint
o Known as Motion to Dismiss – Rule 12
o If Defendant fails to answer, a
default judgment can be entered
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Judgments Before Trial
o Motions for Summary Judgment
o Federal Rules of Civil Procedure 56
o Court considers additional evidence
presented in documents other than
pleadings, including depositions, answers
to interrogatories, admissions and
affidavits
o If all documents show that
o There is no genuine issue as to any material
fact and
o The moving party is entitled to a judgment as a
matter of law
o The court will grant the motion and enter
judgment for the moving party
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Litigation- Discovery
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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Discovery
o Discovery is the process by which
parties obtain information from the
opposing party prior to trial. Various
tools are used:
o Depositions & Interrogatories.
o Deposition: sworn testimony taken outside the
courtroom
o Interrogatories: written questions sent by one party that
another party must answer in writing
o Requests for Admissions.
o Requests for Production of Documents
and Objects.
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Litigation- Pre-Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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Litigation-Pre-Trial
o Mediation-Arbitration.
o Settlement Conference
o Disposition Without Trial:
o Default Judgments.
o Dismissals (With/Without Prejudice).
o Summary Judgment.
o Settlement.
o Pre-Trial Orders (ex:TRO, In Limine).
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Litigation- Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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The Trial
o Trial is fundamentally an
evidence presentation and
authentication procedure.
o To prevail, Plaintiff must introduce
a preponderance of competent,
relevant evidence with respect
to each disputed allegation in
order to prove it.
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The Trial
[2]
o The Defendant will attempt to
introduce a preponderance of
competent evidence to disprove
at least one of the disputed
allegations.
o Hearsay is inadmissible.
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The Trial
[3]
o Bench Trial (no jury).
o Jury Selection process involves:
o Voir Dire;
o Peremptory Challenges;
o Challenges to biased jurors;
o Pick and Impanel the Jury; and
o Selection of Alternate Jurors.
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The Trial [4]
o Opening Statements (Plaintiff
first).
o Plaintiff’s Case--Evidence:
o Witnesses- Direct examination vs.
Cross X and Redirect
o Admissibility of evidence decided
by judge. Parties object to
admission of evidence and judge
decides, as a matter of law,
whether evidence may be
admitted into the trial.
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The Trial
[5]
o Plaintiff’s Case (cont’d).
o Party may impeach the testimony or
credibility of opposing witness by showing
prior inconsistent statements and/or
perjury.
o Defendant’s Case is next.
o Closing Arguments (Plaintiff first).
o Jury Instructions, Deliberations and
Verdict.
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The Trial
[6]
o Jury’s Verdict:
o Criminal case--burden of proof is “beyond a
reasonable doubt” and the verdict (for guilty
or acquittal) must be unanimous. If not,
mistrial/hung jury.
o Civil Cases—generally, burden of proof is by
“preponderance” of the evidence and a
majority of jurors must agree on verdict. If not,
then mistrial/ hung jury.
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Litigation- Post Trial
1st
2nd
3rd
4th
5th
Pleadings // Discovery // Pre-Trial // Trial // Post
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Post Trial
o Judgment: Jury verdict is entered by
the Clerk of Court.
o A party may move for a New Trial.
o A party may file a Motion for
Judgment N.O.V..
o Sentencing (criminal).
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Post Trial-Appeal
o A party may appeal not only the jury’s verdict but
any legal issue, motion or court ruling during the trial.
o The party filing the appeal (Appellant) files a brief
that contains a short statement of the facts, issues,
rulings by the trial court, grounds to reverse the
judgment, applicable law and arguments on
Appellant’s behalf.
o Appeals court can affirm (agree with) or reverse
(disagree with) the lower court’s decision.
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Post Trial-Enforcement
o Once a judgment becomes final (i.e.,
subject to no further judicial review)
the defendant is legally required to
comply with its terms.
o Defendants who will not voluntarily
comply with a judgment can be
compelled to do so by seizure and
sale of the Defendant’s assets.
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