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Chapter 3
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Quote of the Day
Facts are ventriloquists dummies.
Sitting on a wise mans knee they
may be made to utter words of
wisdom; elsewhere, they say
nothing, or talk nonsense or indulge
in sheer diabolism.
Aldus Huxley, British Author
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There is only one good
kind of legal dispute --
The one that is prevented!
You have a chance to go broke
twice in your life; once when
you lose a lawsuit, the other
time, when you win.
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Litigation
vs.
Alternative Dispute Resolution
Litigation refers to lawsuits; the process
of filing claims in court, and ultimately
going to trial.
Alternative Dispute Resolution is any
other formal or informal process for
settling disputes without going to trial.
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Alternative Dispute Resolution
(most common forms)
Negotiation
Parties make offers and counter-offers for
settlements.
May be face-to-face or through lawyers.
Mediation
Neutral person (mediator) attempts to get parties
to reach a voluntary settlement.
Mediation may be ordered by a judge.
Mediator does not render a decision.
Advantages & Disadvantages
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Arbitration
Neutral person (arbitrator) is involved.
Arbitrator does render a binding
decision.
Arbitration may be mandatory, if chosen
in advance as the method for dispute
resolution.

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ARBITRATION PROCESS
Submission
Hearing
Award
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ARBITRATION
AGREEMENTS
Arbitration Clause
Arbitrability
Enforceable
Covered
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Alternative Dispute
Resolution
(less common forms)
Mini-trial
Parties stage a short trial to a panel of three judges.
Two of the judges are executives of the disputing
corporations; the third is a neutral party.
Lawyers present shortened cases; judges discuss
settlement.
Summary Jury Trial
Initiated and supervised by a court.
Each side summarizes to a mock jury what witnesses
would say if called before a real jury.
J ury deliberates and tries to reach consensus, but may
vote individually if necessary.
Allows each side to see how a trial might turn out.
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Things to Consider
Mandatory Arbitration
The Company's Perspective

From the Employees' Perspective

State Court System
Trial Courts of General
Jurisdiction
Trial Courts of Limited (or Specific) Jurisdiction
State Supreme Court
(Highest Appeals Court)
Lower Appeals Courts
General
Civil
Division
General
Criminal
Division
Small
Claims
Division
Municipal
Division
Juvenile
Division
Probate
Division
Land
Division
Domestic
Relations
Division
One judge; may
have jury One judge; may have jury
Three judges; never
a jury
Usually 7 J ustices;
may refuse to hear a
case; final authority
Click on any box below for a definition of the jurisdiction of that trial court.
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Federal Courts --
Two kinds of civil lawsuits permitted
Federal Question Cases
A claim based on the United States
Constitution, a federal statute, or a federal
treaty
Diversity Cases
When the plaintiff and defendant are
citizens of two different states, AND
the amount in dispute is greater than
$75,000
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The Federal Court System
Primary
Trial
Court
Trial Courts of Limited
(Specific) Jurisdiction
United States
Supreme Court
(Highest Appeals Court)
Lower
Appeals
Courts
U.S.
District
Courts
U.S.
Bankruptcy
Courts
U.S. Tax
Courts
Various
Federal
Agencies
U.S. Court of
International
Trade
U.S. Claims
Court
U.S. Patent &
Trademark
Office
Trial Courts of
Limited (Specific)
Jurisdiction
Three judges hear
each case, brought
up from the District
Courts.
Nine Justices; appointed for
life; may refuse to hear a case;
final authority
Click on any box belowfor a definition of the jurisdiction of that trial court.
U.S. Courts of
Appeals (12
Circuits)
U.S. Court of
Appeals for the
Federal Circuit
Hears appeals from
specialized trial
courts.
Click here to see a map
of the 12 Circuits of the
U.S. Courts of Appeals.
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Steps in Beginning
Litigation
Pleadings: Papers that begin a lawsuit
1. Complaint --
Short, plain statement of the
allegations and the legal claims.
This is served or delivered with a summons.
2. Answer -- A brief reply to the allegations.
3. Counterclaim --
Sometimes the accused party
will initiate a second suit in
response to the first.
4. Reply --
A brief reply to the counterclaim.
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Possible Variations on
Pleadings
Counterclaim
Class Actions
J udgment on the Pleadings

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Discovery -- next step after pleadings
Interrogatories -- written questions that the other party
must answer, under oath
Depositions -- interview (under oath) of other party or
potential witnesses; done by opposing lawyer
Production of Evidence -- each side may request to see
the other sides evidence
Physical or Mental Exam one party may request the
court to order an examination of the other party if relevant
Requests for Admission -- each side may request that
undisputed facts be admitted or denied, to avoid wasting
time on them
Discovery allows both sides to uncover evidence,
encouraging a settlement without trial or ensuring few
surprises during a trial.
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Other Steps Before Trial
Summary Judgment -- a ruling by the
court that no trial is necessary because there are
no essential facts in dispute; may be requested by
either side.
Final Preparation -- if the case is to
proceed to trial, both sides make a list of
witnesses and rehearse questions with their own
witnesses. Preparation is allowed, but telling the
witnesses how to answer is not legal or ethical.
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Beginning a Trial
J ury Selection:
Process called voir dire
1. Questioning --
Each potential juror is questioned,
to uncover biases.
If both sides agree, they may waive their right to a
jury.
2. Challenges for Cause --
Each side can claim any
juror shows significant bias.
3. Peremptory Challenges --
Each lawyer can dismiss
a limited number of jurors
without stating a reason.
4. Jury Chosen --
12 jurors and 2 alternates
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Adversary System
Our system of justice assumes that the
best way to bring out the truth is for
both sides to go at the various
witnesses, enabling a neutral fact finder
(judge or jury) to detect the truth.
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Expert Witnesses
What is the danger in allowing experts
to testify?
Do juries always have to take the side
of the expert witness?
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Procedural Rules
for a Trial
Burden of Proof
The plaintiff must convince the jury that its
version of the case is correct.
In a civil case, the proof needs to be by a
preponderance of evidence (meaning at least
slightly more likely to be true).
In a criminal case, the proof required is higher;
it must be beyond a reasonable doubt.
Rules of Evidence
Lawyers are allowed to ask only questions that
are relevant to the case.

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Proof versus Right
Has a person suffered a legal wrong?
Can this be proven?
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The Plaintiffs Case
Opening Arguments
This is a brief summary, given by each side, of the facts
they hope to demonstrate.
Plaintiff Calls Witnesses
Questions to own witnesses is direct examination.
Lawyer only asks questions with helpful answers.
Defendant Questions Witnesses
Questions to opposing witnesses is cross examination.
Again, lawyer asks questions with helpful answers.
Defendant Moves for Directed Verdict
This is asking the judge to decide that the plaintiff has
no case worth proceeding with.
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The Defendants Case
Opening Arguments
Defendants opening arguments were presented
earlier, before the plaintiff presented its case.
Defendant Calls Witnesses
Questions to own witnesses is direct examination.
Lawyer only asks questions with helpful answers.
Plaintiff Questions Witnesses
Questions to opposing witnesses is cross
examination.
Again, lawyer asks questions with helpful answers.
Closing Arguments
Brief summary, by both sides, urging the jury to
believe their side of the case.
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Jury Instructions
The judge instructs the jury to evaluate the case
solely on the facts of the evidence presented.
If the case is influenced by a certain legal
presumption, the judge will summarize that for
the jury.
Deliberation and Verdict
The jury discusses the case for as long as needed
(anywhere from less than an hour to several
weeks).
Sometimes the jury must be unanimous; other
times only a majority (at least 7) or a 10-2 vote is
required.
After Both Sides Rest (Finish)
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Motions after the Verdict

Appeal
Settlement
The Trial is Over or is it?
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The process of litigation, with its
potential for errors or biases, may
influence the outcome of a dispute
as strongly as the law itself. That is
all the more reason to prevent
disputes if possible, or to use
alternative methods of dispute
resolution.
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THE END