Settling
Disputes
Chapter 4
Street Law Text
pp. 40-45
• Conflict and resolving that conflict is an important
part of the legislative process and everyday life.
• Those who can collect the facts, formulate an
opinion, listen to competing idea, and discuss and
debate the best course of action are those who
tend to be the most successful in life.
• Conflict and controversy will happen in life and if
we view it, not as a bad thing but, as something
that can be productive- conflict becomes a
learning experience.
• There are many ways to handle conflict from
informal discussions to going to court, but going
to court is not always the best answer and
sometimes makes a situation worse.
Methods for Solving Disputes
• The main methods for solving disputes are informal discussion,
negotiation, mediation, arbitration, and court action.
• Negotiationis the process by which people involved in a dispute
discuss their problem and try to reach a solution acceptable to all.
• Negotiation is the most common of the dispute resolution
techniques. It is used all the time from children/parents,
employee/employer, spouses, siblings, buyer/seller, etc.
• A settlementor agreement [usually in a civil case, prior to a
judges ruling] that is agreed upon by both sides. A settlement can
be reached in most cases prior to the conflict going any further.
• Some negotiations are a difficult. Thus may not resolve the
conflict, then usually in business and certain cases they move to
mediation.
• Mediation is when a third person is brought in and
helps the disputing parties settle their differences.
• The mediator acts as a neutral third party that listens
to both sides, mediation is voluntary, and the decision
of the mediator must be agreed upon by both sides.
• Mediators are used any many different areas from local
government and communities to universities and even
in business. [BBB] or Better Business Bureau may help
mediate disputes between consumers and sellers.
Ombudspersons are professional mediators that
investigate complaints and then help the parties reach
some agreement.
• Arbitration is when both parties in a dispute agree to
have another person[s] listen to their arguments and
make a decision for them. Arbitration caries the
weight of law. [unless it was non-binding arbitration]
Problem 4.1
Examine the following situation and decide the best method for solving each problem.
Consider informal discussion, negotiation, arbitration, mediation, going to court, seeking
help form a government agency, and other methods. Explain your answers.
a. Two sisters share a room. However, they disagree over how the room
should be arranged and decorated.
b. A new plasma television breaks after two weeks, and the salesperson
refuses to fix it.
c. A landlord will not make needed repairs because he believes the tenant
caused the damage.
d. A fast food restaurant and an employee disagree over the wages and
conditions of employment
e. The Internal Revenue Service sends you a letter claiming that you owe
another $2,000 in taxes. You disagree
f. Carl invites Raquel to the prom, and she agrees to go with him. Then
Miguel invites her to the prom. Raquel really wants to go with Miguel and
accepts his invitation. Carl finds out about her decision after he has
purchased flowers and paid for a limousine to take them to the prom.
The Court
System
Chapter 5
Street Law Text
pp. 46-62
• In the United States there are many courts
systems at the State and Federal levels.
• Each system has trial and appeals courts.
• There are tribal courts that hear cases on
reservations.
• No court is higher or has more power than the
United States Supreme Court. The Supreme
Court can hear cases from almost any of the
lower courts.
Trial Courts
• Listen to to testimony, consider evidence, and decide the facts in a
case. Evidence is provided by witnesses who are called to testify
in the case.
Parties
• Are those “sides” involved in a trial.
Plaintiff
• In a CIVIL case, the person harmed that files a lawsuit. The
person that sues.
Prosecutor
• The person that represents the “state” in a CRIMINAL trial
that tries to prove the guilt of a person.
Defendant
• The person accused of a crime in a CRIMINAL case, or the
person being sued in a CIVIL case.
Adversarial System
• A trial system in which there is a contest between opposing sides.
• This is what the United States has as its basic trial system
• The theory is that the Judge or Jury will be able to determine the truth if
the opposing parties present their best arguments and show a weakness in
the other side’s case.
Inquisitional System
• A trial system in which the judge is active in questioning
witness and controlling the court process, including the
gathering and presenting of evidence.
• This is what, for example, Great Britain has as its basic trial system
• These judges can order witnesses to appear, conduct searches,
present and comment on evidence, and, in general, take the lead role
in trying to uncover the truth.
• Critics of the adversarial system say that it is a battle to
win, and not for the ideals of “truth” or “justice”.
Problem 5.1
a. Do you think the adversarial system is the best
method for solving disputes? Why or why not.
b. Indicate whether you agree or disagree with the
following statement: “It is better that ten guilty
persons go free than that one innocent person
suffer conviction.” Explain.
• In a criminal case, should a lawyer defend a
client he or she knows is guilty? Would you
defend someone you knew was guilty? Explain.
Trial Courts cont.
• The judge in a trial has the duty to not only protect the
rights of those involved but to make sure the attorneys
follow the rules of evidence and trial procedure.
• We have the right in the United States to trial by jury in
both criminal and civil cases. We have much broader
rights to that jury in criminal cases.
• Most cases in the United States are settled out of
court.
• In a civil case a settlement is most often reached
between the parties and their attorneys prior to court.
• In criminal cases a Plea Bargin or pretrial agreement
between the defendant and his or her lawyer and the
prosecutor disposes of the case.
Trial Courts cont.
• Juries are made up of citizens that are at least 18,
speak and understand English, and are residents of the
area where the case is being tried.
• In the past people in certain positions or occupations
were exempt from serving on a trial, that is not the
case in most places today.
• Some people called for jury duty may receive a
“hardship” or excuse from the court so they don’t have
to serve.
• In Nebraska the juries are selected from a pool of those
registered to vote and those holding a drivers license
or State Identification and are at least 19 years of age.
•
Nebraska Supreme Court Jury Service Page.
Voir Dire
• Examination of prospective jurors, to decide if they
are able to serve on the jury.
Removal for Cause
• Removing any juror who appears incapable of rendering a fair
and impartial verdict
• Examples would be: knowing either party, being in a
similar business, overly opinionated on an issue
dealing with the case, etc.
Peremptory Challenge
• Removal of a juror without stating a cause. Attorneys
only have a limited number of this type of removal.
Problem 5.2
a. What reasons can you give for excluding from
jury service member of the clergy, attorney,
physicians, police officers, and convicted
felons? Should everyone be required to
serve on juries? Give your reasons.
b. If you were a defense attorney questioning
jurors at the voir dire in a murder trial, what
questions would you ask potential jurors?
c. For what reasons might an attorney use a
peremptory challenge?
Appeals Courts
• Courts that hear appeals or retry a case from a lower court
Error of Law
• A mistake by a judge as to the application of the law.
•
•
Giving the wrong instructions to the jury
Allowing or not allowing evidence
Precedent
• Court decision on a legal question that guides future cases
with similar questions
Dissenting Opinion
• An opinion written by a judge that does not agree with the
majority opinion
Concurring Opinion
• An opinion written by a judge that agrees with the majority
opinion for a different reason then what was expressed
Nebraska Courts
 Nebraska Court System Info
Supreme Court
Chief Justice and 6 associate Justices
Justices represent 6 Districts reapportioned after each census
Chief Justice is selected by Governor Associate Justices by a
Judicial Nominating Commission by District
Hear Appeals from lower courts
Regulate the practice of law in Nebraska
Nebraska Court of Appeals
Created 1991
6 Justices serving in 2 teams of 3
Hear Appeals from Lower Courts
Can be skipped by a Petition to Bypass approved by the Supreme
Court
Nebraska Courts cont.
 Nebraska District Courts
12 Districts with 55 Judges
Original Jurisdiction IN
Felonies, Equity cases, and Civil cases over $52,000
Concurrent Jurisdiction with County Courts
[Misdemeanors rarely heard]
Red Willow in 11th District- David W. Urbom- Judge
Richard Birch& Donald E. Rowlands [Lincoln County]
James E. Doyle [Dawson County]
Clerk of District Court in Each County performs
Administrative Duties [elected by county voters]
Red Willow County- Lori O’Dea
Nebraska Courts cont.
 Nebraska County Courts
 12 Districts with 59 Judges
 Original Jurisdiction IN
 misdemeanor cases, traffic and municipal ordinance violations,
preliminary hearings in felony cases, civil cases involving up to $52,000,
small claims cases, some divorce cases, probate, guardianship,
conservatorship and adoption proceedings, and juvenile matters
 Concurrent Jurisdiction in Misdemeanor with District Court
 Serves as the Preliminary court for felonies
 May have a small claims division
 Red Willow County in 11th District Judge Anne Paine
 Kent B. Turnbull & Michael Piccolo [Lincoln County]
 Carlton Clark [Dawson County]
 Edward D. Steenburg [Keith County]
 A Magistrate serves as the Administrator of the County Court may
also have power to accept traffic pleas, perform marriage, and set
bail
 Red Willow County Magistrate- Gretchen Weibe
State and Federal Court Systems
Federal Judicial Circuit Courts
Problem 5.3
For each case, decide whether it will be tried in a federal or state court. To what court could
each case be appealed? Explain. Then give an example, different form those listed, of a case
that could be heard in a state court and a case that could be heard in a federal court.
a. A state sues a neighboring state for dumping
waste in a river that borders both states.
b. A wife sues her husband for divorce.
c. A person is prosecuted for assaulting a neighbor.
d. Two drivers crash their cars into each other. One
driver sues the other for medical bills and car
repairs.
e. A group of parents sues the local school board,
asking that their children’s school be
desegregated.
Tribal Courts
• There are several hundred Indian tribal groups that govern
reservations in the United States today. They are not soveriegn
nations or have total authority over their reservations; they do
though retain some of their original authority.
• Inherent Powers assumed powers because of tradition and common
law. In this case the Tribe has the power to regulate family
relationships, membership in the tribe, and law and order.
• Delegated Powers powers granted by the government, the people,
or a document. These are also called expressed powers.
• Today the Supreme court allows the Tribal court system broad
powers in civil matters on the reservations, but they limit their
power in criminal matters. If a felony takes place on the reservation
the federal government has jurisdiction.
• The Court has ruled that inherent tribal authority no longer includes
the authority to prosecute non-Native Americans for crimes on the
reservation. Those crimes are prosecuted in Federal Court.
The Supreme Court
• The nine Justices of the Supreme Court hear appeals from lower courts.
Around 800 Petitions for Certiorari or requests from lower courts to
send cases to the Supreme Court, are filled per year but only around 80
cases are heard by the Court.
• The way cases are chosen are by the “rule of 4” which means 4 out of
the 9 Justices must agree to hear a case for the request to move
forward.
• The Supreme Court is not a trial court… the court proceedings are not
like the traditional adversarial courtroom hearing. In the Supreme
Court the parties involved write briefs arguing how the case should be
decided. Each party then at the hearing has 30 minutes to present its
case. The Justices will then ask questions before meeting in private to
decide the case.
• The Supreme Court decides many more cases 9-0 than 5-4. The media
likes to “make news” with the controversial decisions but the court
tends to see the law for what it is and rules that way.
• Stare Decisis- the rule that precedent must be followed [to stand by that
which is decided] Is the fundamental process that makes the Supreme
Court’s decisions apply to all Courts in the United States.
The Supreme Court Today
Chief Justice
John Roberts
Antonin Scalia
Anthony Kennedy
9/86 Reagan
2/88 Reagan
09/05 G.W. Bush
Clarence Thomas
10/91 G.H.W. Bush
Ruth BaderGinsburg
8/93 Clinton
Stephen Breyer
Samuel Alito
Sonia Sotomayor
Elena Kagan
8/94 Clinton
1/06 G.W. Bush
8/09 Obama
7/10 Obama
Problem 5.4 “Gideon v. Wainwright”
a. In the case of Gideon v. Wainwright, what
was the precedent that the Supreme Court
set? Who has to follow this precedent?
b. Who would have had to follow the precedent
if the case had been decided by a judge in a
state supreme court.
c. Does the Gideon case apply if you are
charged with a misdemeanor? Does it apply
if you are sued in a civil case?
Problem 5.5
a.
Your are legal counsel to the president. One of the Supreme Court justices has just announced his
resignation. Many groups and individuals are suggesting names of people they think should be
nominated by the president. Write a memo to the president describing the type of person who should be
nominated to the U.S. Supreme Court.
b.
As legal counsel to the president, look at the following characteristics of potential Supreme Court
nominees. Rank them from most important too least important. Be prepared to give your reasons.
- 45 years old
- Hispanic American
- Female
- Graduated first in class from a top law school
- Respected trial court Judge
- Smoked marijuana while a law professor 20 years ago
- Believes that affirmative action is unconstitutional
- Believes in a woman’s right to an abortion
-Lives in California (assume there are no current justices from the west coast)
- Practicing Catholic (assume there are no Catholics on the court)
c.
Assume you are a member of the Senate Judiciary Committee. A nominee for the Supreme Court has
an excellent reputation as a lawyer and lower court judge but is likely to vote, if confirmed, to overturn the
case that established a woman’s right to choose an abortion. Voters in your state tend to support the right to
choose. How would you vote on the nominee?