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Chapter 3: Dispute Resolution

I. Three Fundamental Areas of Law
A. Litigator – a lawyer who handles court cases
B. Litigation versus Alternative Dispute Resolution
a) Litigation refers to lawsuits, the process of filing claims in
court, and ultimately going to trial.
b) Alternative dispute resolution is any other formal or
informal process used to settle disputes without resorting to
a trial.

II. Alternative Dispute Resolution

A. Negotiation.
a) Parties negotiate, personally or through lawyers. Majority of
disputes are resolved this way. May last several years.
B. Mediation
a) Fastest growing method of dispute resolution.
b) Voluntarily entered into.
c) Advantages
1. Parties maintain control of the process, the two
antagonists can speak freely.
2. No settlement takes place until both parties sign.
3. All discussions are confidential.
4. Strongest “win-win”
C. Arbitration
a) The parties agree to bring a neutral third party.
b) The arbitrator has the power to impose an award. He or she
issues a binding decision, generally without giving reasons.
c) Parties in arbitration give up many rights such as discovery
and class action.
1. Discovery allows the two sides in a lawsuit to obtain,
before trial, documentary and other evidence.
2. Class action is a suit in which one injured party
represents a large group of people who have suffered
similar harm.
a. Arbitration eliminates the possibility of plaintiffs
to face defendant one at a time.
d) The fact that an arbitrator may not provide a written, public
decision bars other plaintiffs, and society generally, from
learning what happened.
e) MANDATORY ARBITRATION
1. The parties agree in advance to arbitrate any disputes
that may arise.
2. Fewer lawsuits.
3. You may not be aware that you’re signing something for
mandatory arbitration.
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III. Court Systems

A. State Courts
a) Trial Courts
1. Almost all cases start in trial courts. The ones on
television and film.
a. One judge and often a jury.
2. The only court to hear testimony from witnesses and
receive evidence.
3. Trial courts determine the facts of a particular dispute
and apply to those facts the law given by earlier
appellate court decisions.
4. Jurisdiction refers to a court’s power to hear a case.
a. Some courts have very limited jurisdiction.
5. Trial Courts of Limited Jurisdiction
a. May hear only certain types of cases
i. Small claims court, maximum amount of
money.
6. Trial Courts of General Jurisdiction
a. Can hear a very broad range of cases.
b. The most important court is the general civil
division.
i. May hear virtually any lawsuit.
b) Appellate Courts
1. Three or more judges hear the case.
2. There are no juries. Ever.
3. Do not hear witnesses or take new evidence.
4. Appeals courts generally accept the facts given to them
by trial courts and review the trial record to see if the
court made errors of law.
a. Accept general findings unless there is no
evidence at all to support it.
5. Reviews the trial record to make sure that the lower
court correctly applied the law to the facts.
a. If the trial court made an error of law, the
appeals court may require a new trial.
6. Court of Appeals.
a. the party that loses at the trial court may appeal
to the intermediate court of appeals.
i. The party filing the appeal is the
appellant.
ii. The one opposing is the appellee.
b. The court allows both sides to present written
arguments called briefs.
c. Each side then appears for oral arguments.
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d. Reversed – nullified.
e. Affirmed – permitted to stand
7. State Supreme Courts – the highest court in the state. No
absolute right to appeal to the Supreme Court in most
states.
a. In most states, there are seven judges.
B. Federal Courts
a) Federal Question Cases – a claim based on the US
Constitution, a federal statute, or a deferral treaty.
1. Claims against federal agencies created by federal
statutes.
b) Diversity Cases:
1. The plaintiff and defendant are citizens of different
states; AND
2. The amount in dispute is over $75,000.
c) Trial Courts
1. United States District Court
a. Primary trial court in the federal system.
b. The nation is divided into 94 districts, each has a
district court.
2. Other Trial Courts
a. Bankruptcy Court, Tax Court, and US Court of
International Trade all handle name-appropriate
cases.
b. The US Claims court hears cases brought against
the US, typically on contract disputes.
c. Foreign Intelligence Surveillance Court is a very
specialized, secret court, which oversees
requests for surveillance warrants against
suspected foreign agents.
3. Judges
a. The president nominates all federal court judges,
from district to Supreme Court. They must be
confirmed by the Senate.
d) Appellate Courts
1. United States Courts of Appeals
a. Intermediate courts of appeals. Divided into
“circuits”, which are geographical areas.
b. There are 11 Circuits
c. A 12th, the Court of Appeals for the District of
Columbia, only hears appeals from Washington
D.C.
i. Many suits about federal statutes begin in
DC district court.
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d. The 13th district court of appeals is also in

Washington, DC. It’s known as the Federal
Circuit.
i. There are as many as 50 judges in a
circuit and 3 hear the appeal.
2. United States Supreme Court
a. Highest court in the country.
b. Nine justices.
c. One is chief justice and the others are associates.
i. Each casts an equal vote.
ii. Chief can assign opinions.
d. Has the power to hear appeals in any federal
case and in certain cases that began in state
courts.
e. A party that wants the Supreme Court to hear
their case must file a petition for a writ of
certiorari.

IV. Litigation
A. Pleadings
a) The document that begins a lawsuit.
1. Complaint, the answer, and sometimes a reply.
b) Complaint – a short, plain statement of the facts she is
alleging and the legal claims the plaintiff is making.
1. Inform the defendant the general nature of the claims.
c) Service.
1. Summons – a paper ordering the defendant to answer
the complaint within 20 days.
d) Answer – brief reply to each of the allegations. (Admit or
deny)
1. If the defendant fails to answer within time, the plaintiff
will as for a default judgment- decision that the
plaintiff wins without a trial.
e) Counter-Claim – a second lawsuit by the defendant against
the plaintiff.
1. Reply – an answer to a counter-claim … admitting or
denying the allegations.
f) Class-Actions
1. One plaintiff represents the entire group of plaintiffs,
including those who are unaware of the lawsuit or even
unaware that they were harmed.
2. Congress recently passed a statute designed to force
large, multi-state class actions out of state courts, into
federal.
a. These cases hurt businesses and enrich lawyers.
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g) Judgment on the Pleadings

1. Motion – formal request to the court that the court take
some step or issue some order.
a. Motion to dismiss – terminate the case without
allowing it to go further.
h) Discovery
1. Critical, pre-trial opportunity for both parties to learn
the strengths and weaknesses of the opponent’s case.
2. Lawyers know in advance the answers to practically all
questions asked because discovery has allowed them to
see the opponent’s documents and questions in its
witnesses.
a. Interrogatories – written questions that must be
answered in writing, under oath.
b. Depositions – one party’s lawyer questions the
other party or potential witness, under oath.
i. Deponent – the person being questioned.
c. Production of Documents and Things – produce
relevant information and documents for
inspection and copying.
d. Physical and Mental Examination – a party can
ask for the examination of the other party.
e. Motion for a protective order – a request that
the court limit discovery.
f. Motion to compel answers to interrogatories
– formal request that the court order to supply
more complete answers.
i. Memorandum – supporting argument
for the motion.
g. Crucial Clue
i. A jury can only decide a case based on the
evidence presented to it.
1. Facts are elusive and often
controlling.
i) Summary Judgment
1. A ruling by the court that no trial is necessary because
some essential facts are not in dispute.
a. If there are no relevant facts in dispute, there is
no need for trial.
j) Final Preparation
1. 90% of all lawsuits are settled before trial.
2. It is considered ethical and proper to rehearse the
questions, provided the answers are honest and come
from the witness.
3. It is unethical and illegal for a lawyer to tell a witness
what to say.
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V. Trial
A. Adversary System
a) Two contesting sides to present the strongest case possible
to a neutral fact finder.
B. Right to Jury Trial
a) As a general rule, both plaintiff and defendant have a right to
demand a jury trial when the lawsuit is one for money
damages.
1. The parties may waive the jury right.
b) Equitable rights come from the old Court of Chancery in
England, where there was never a jury.
C. Voir Dire
a) The process of selecting a jury, which means “to speak the
truth”.
b) The court tries to select an impartial jury.
c) Each lawyer may make any number of challenges for cause
claiming that a juror has demonstrated possible bias.
1. If the judge perceives no bias, the lawyer may still make
a limited number of peremptory challenges, entitling
him to excuse that juror for virtually any reason, which
need not be stated in court.
2. 14 jurors are seated. Twelve will comprise the jury; the
other two are alternates who hear the case and remain
available in the event one of the impaneled jurors is
taken ill.
3. To determine whether a juror’s nondisclosure warrants
a new trial, the complaining party must show that:
a. The information is relevant and material to jury
service in the case;
b. The juror concealed the information during
questioning; and
c. The failure to disclose the information was not
attributed to the complaining party’s lack of
diligence.
D. Opening Statements
a) Each attorney makes opening statements to the jury,
summarizing the proof he or she expects to offer, the plaintiff
goes first.
E. Burden of Proof
a) The plaintiff has the burden of proof
1. The plaintiff must convince the jury that its version of
the case is correct; the defendant is not obligated to
disprove the allegations.
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b) The plaintiff’s burden in a civil lawsuit is to prove its case by

a preponderance of the evidence.
1. it must convince the jury that its version of the facts is
at least slightly more likely that the defendant’s version.
a. Some courts describe this as the “51—49”
persuasion.
b. A plaintiff’s proof must “just tip” credibility in its
favor.
c) In a criminal case, the prosecution must demonstrate
beyond a reasonable doubt that the defendant is guilty.
1. beyond a reasonable doubt – the government’s
burden.
F. Plaintiff’s Case
a) Direct examination – when a lawyer asks questions of her
own witness.
b) Cross examination – to ask questions of an opposing
witness.
G. Rules of Evidence
a) Law of evidence determines what questions a lawyer may
ask and how the questions are to be phrased.
b) Goal is to set the best evidence possible
c) Witnesses may only testify about what they saw or heard.
H. Motion for Directed Verdict
a) A ruling that the plaintiff has entirely failed to prove some
aspect of her case.
b) A directed verdict is permissible only if the evidence so
clearly favors the defendant that reasonable minds could not
disagree on.
I. Closing Argument
a) Both lawyers sum up their case to the jury.
J. Jury Instructions
a) Jury is to evaluate the case based on the evidence the heard
at trial, relying on their own experience and common sense.
b) If they are unable to decide, there is a legal presumption that
it was accidental (plaintiff wins)
K. Verdict
a) Some deliberations take hours, some two weeks.
b) Many states require an unanimous verdict.
L. Motions after the Verdict
a) Judment non obstante veredicto – a judgment
notwithstanding the jury’s verdict.
1. Asks the judge to overturn the jury’s verdict.

VI. Appeals
a) The appellate goes first.
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b) Taking a case under advisement – they will decide sometime

in the future, maybe two weeks, maybe five months.
B. Appeals Court Options
a) The court of appeals can:
1. Affirm – allow the decision to stand;
2. Modify – affirming that the plaintiff wins but decreasing
the size of the award;
3. Reverse and demand – nullifying the lower court’s
decision and returning the case to the lower court for
new trial; or
4. Reverse – turning the loser into the winner, with no
new trial
b) If the court ocncludes that the mistake was a harmless error
(mistake by the trial judge that was too minor to affect the
outcome), the court may decide the verdict was fair in spite
of the mistake.