BUSINESS LAW 3E, by Henry R. Cheeseman
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Chapter 3 Alternative, Judicial, and EDispute Resolution
Litigation
Also called Judicial dispute resolution as opposed to nonjudicial dispute resolution.
Copyright © 2010 Pearson Education, Inc. Publishing as Prentice Hall.
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Pretrial Litigation Process
Pleadings Discovery Dismissals and pretrial judgments Settlement conference
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Pleadings
Complaint - the document the plaintiff files with the court and serves on the defendant to initiate a lawsuit Summons - a court order directing the defendant to appear in court and answer the complaint Answer - the defendant’s written response to the plaintiff’s complaint that is filed with the court and served on the plaintiff
Copyright © 2010 Pearson Education, Inc. Publishing as Prentice Hall.
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Pleadings
Cross-Complaint and Reply: is a document filed by a defendant againt the plaintiff to seek damages or some other remedy. However, a relpy filed by an original plaintiff to answer the defendant’s cross complaint.
Copyright © 2010 Pearson Education, Inc. Publishing as Prentice Hall.
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Intervention and Consolidation
Intervention
The act of other parties to join as parties to an existing lawsuit
Consolidation
The act of a court to combine two or more separate lawsuits into one lawsuit
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Statute of Limitations
Statute of limitations
Establishes the period during which a plaintiff must bring a lawsuit against a defendant
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Discovery
Discovery—a legal process during which both parties engage in various activities to discover facts of the case from the other party and from witnesses prior to trial Major forms of discovery
Depositions by the deponent Interrogatories Production of documents Physical and mental examinations
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Pretrial Judgments
Motion for judgment on the pleadings
Alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts.
Motion for summary judgment
Motion that asserts that there are no factual disputes to be decided by the jury; if so, the judge can apply the proper law to the undisputed facts and decide the case without a jury.
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Settlement Conference
Court may direct parties to appear for a settlement conference or pretrial hearing. If there is no settlement, the pretrial hearing is used to identify major issues.
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Phases of a Trial
Jury selection Opening statement Plaintiff’s case Defendant’s case Rebuttal and rejoinder
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Phases of a Trial
Closing arguments Jury instructions Jury deliberations Verdict Entry of judgment
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The Appeal
In a civil case, either party can appeal the trial court’s decision once a final judgment is entered. In a criminal case, only the defendant can appeal. An appellate court will reverse a lower court decision if it finds an error of law in the record.
It will generally not reverse a finding of fact.
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Types of Alternative Dispute Resolution (ADR)
Arbitration Mediation and conciliation Minitrial Fact finding Judicial referee
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Arbitration
Arbitration is a form of ADR in which parties choose an impartial third party to hear and decide the dispute. Many contracts require that disputes arising out of the contract be submitted to arbitration.
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Mediation and Conciliation
Mediation
A form of ADR in which the parties choose a neutral third party to act as the mediator of the dispute
Conciliation
A form of mediation in which the parties choose an interested third party to act as the mediator
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Minitrial
A minitrial is a session, usually lasting a day or less, in which the lawyers for each side present their cases to representatives of each party who have authority to settle the dispute.
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Fact-Finding
Fact-finding is a process in which the parties hire a neutral person to investigate the dispute. The fact-finder reports his or her findings to the adversaries and may recommend a basis for settlement.
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Judicial Referee
If the parties agree, the court may appoint a judicial referee, often a retired judge, to conduct a private trial and render a judgment.
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E-Dispute Resolution
Services offered online E-Arbitration E-Mediation
Settlement of claims can be reached quickly and less expensively
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