Understanding Jurisdiction and Negotiation in US Courts: A Comprehensive Guide - Prof. Chr, Study notes of Business and Labour Law

Download Understanding Jurisdiction and Negotiation in US Courts: A Comprehensive Guide - Prof. Chr and more Study notes Business and Labour Law in PDF only on Docsity! NEGOTIATION Negotiation: Informal settlement talks between the parties, with or without counsel, which may be assisted by the use of one or more of the following: pg 42 Mini-Trial: A short-form trial presented to a “judge” whose decision is not legally binding, but may assist the parties in evaluating their claims and/or defenses; pg 45 Neutral Case Evaluation: A third party agreed to by the parties evaluates each side’s position and informs the parties of their strengths and weaknesses; Summary Jury Trial: A short-form trial presented to a “jury” whose decision is not legally binding, but may assist the parties in evaluating their claims and/or defenses; and Conciliation: Settlement discussions moderated by a neutral third party. ? MEDIATION AND ARBITRATION Mediation: Non-binding (not responsible) procedure utilizing the services of a neutral third party to assist negotiations and recommend a resolution of the parties’ dispute. Pg 42 Arbitration: A binding form of mediation utilizing either one person or a panel of three persons chosen by the court or agreed to by the parties (or both). whether the property in question resides within the county, district, or state. Pg 31 SUBJECT MATTER JURISDICTION A court’s subject matter jurisdiction is usually defined in the statute or constitution creating the court. Pg 38 In both the federal and state court systems, a trial court’s subject matter jurisdiction may be limited by: the amount in controversy, the basis for the relief sought, and/or in a criminal case, whether the crime alleged is a misdemeanor or felony. A court whose jurisdiction is limited by one or more of these factors is considered to have limited jurisdiction; otherwise, a court has general jurisdiction. Pg 38 When one or more federal court(s) and one or more state court(s) have subject matter jurisdiction over the same dispute, those courts are said to have concurrent jurisdiction. When a case may be tried only in state court or only in federal court, then the court in which jurisdiction lies is said to have exclusive jurisdiction. JURISDICTION OF FEDERAL COURTS Federal Question Jurisdiction arises if a case involves an alleged violation of the U.S. Constitution, federal statute or regulation, or a treaty between the U.S. and one or more foreign country(-ies). Pg 34 Diversity Jurisdiction arises if: (1) the amount in controversy exceeds $75,000; and (2) the lawsuit is between (a) citizens of different states, For purposes of diversity jurisdiction, a corporation is a citizen of both: (1) its state of incorporation, and (2) the state of its principal place of business, if the two are not the same. ??? (b) a foreign country and citizens of one or more state(s), or (c) citizens of a state and citizens or subjects of a foreign country. courts, as well as, in some circumstances, state supreme and appellate courts. STATE COURT SYSTEMS Trial Courts: Trial courts are where all litigation (other than that conducted through administrative agencies) begins. Trial courts have either general jurisdiction – meaning that they are empowered to consider any matter before them – or limited jurisdiction – meaning that they are only empowered to hear certain types of cases and/or cases in which the amount in controversy is above, below, or between, specified bounds. Limited jurisdiction courts include, typically, municipal courts, traffic courts, small claims courts, family law courts, and the like. Appellate Courts: Every state has at least one appellate court, to which a litigant who was unsuccessful at the trial court may appeal for relief. Some states have intermediate appellate courts (akin to the U.S. Courts of Appeals) which are subject to review by the state’s Supreme Court or “court of last resort.” Other states have only a supreme court. Appellate courts (intermediate and supreme) typically limit their review to questions of law, rather than questions of fact although this is not always the case. STAGES OF A LAWSUIT: PRE-SUIT  Consulting with an Attorney: The first step to take when contemplating a lawsuit, as well as when facing a lawsuit, is to consult with a qualified attorney. Among the issues to discuss up front are:  Legal Fees: The anticipated expenses of investigating and prosecuting or defending the case, if necessary through an appeal, and the manner in which those fees will be paid. Typically, a client may choose among:  Fixed Fees: A flat rate for the attorney’s time and effort, typically excluding expenses for expert witnesses, depositions, etc.;  Hourly Fees: A fee based on the attorney’s time expended on the matter, sometimes varying depending on whether that time is spent researching, engaging in discovery, or before the court; and  Contingent Fees 성성 성성성: Typically set as a percentage (or a declining percentage) of the damages recovered in the event of a successful outcome. STAGES OF A LAWSUIT: PLEADINGS  Pleadings: Written documents that inform each of the parties of one another’s claims and defenses and specify the issues involved in the lawsuit. The primary pleadings are: 재재재 pg 54 (a) Plaintiff’s Complaint/Petition, which sets forth the claims asserted by the party seeking affirmative relief. (b) Defendant’s Answer, which: (i) responds to the claims set forth in the Complaint or Petition and, where appropriate, (ii) asserts affirmative defenses (reasons why the plaintiff’s claims fail and/or are limited as a matter of law or equity), and/ or pg 58 The actions are justified by saying I acted because it was self defense or something.  Motion to Dismiss: A motion seeking to terminate the lawsuit due to Plaintiff’s failure to comply with proper procedure and/or failure to state a justiciable claim – this must also generally be filed with or prior to Defendant’s Answer.  Motion for Judgment on the Pleadings: A motion by either party requesting the court to decide the case solely on the pleadings. This motion may be granted only if there are no fact issues in dispute.  Motion for Summary Judgment: A motion requesting the court to enter judgment, based on the pleadings and discovery (see below) to date. This motion may be granted only if there are no fact issues in dispute. STAGES OF A LAWSUIT: DISCOVERY - PT. I  Discovery: The process of obtaining factual information from the opposing party(-ies) by means of written responses to interrogatories, and requests for admission, requests for production of documents and other things, and depositions. Pg 60  Requests for Production: A set of written requests that detail the types of documents that the requesting party considers relevant to the subject matter of the lawsuit.  Requests for Admission: A set of questions to the responding party phrased in an “admit” or “deny” format, giving no opportunity for explanation, and binding the responding party to its admissions. Pg 62  Failure to respond to a request for admission in a timely manner may result in all matters requested being deemed admitted by the non-responding party.  Interrogatories: A series of written questions related to the subject matter of the lawsuit that must be answered under oath. 재재재 STAGES OF A LAWSUIT: DISCOVERY - PT. II  Recent amendments to the Federal Rules of Civil Procedure have placed emphasis on mandatory disclosure, without a prior request by the opposing party, of certain basic information which was previously the subject of interrogatories and of all documents relevant to the lawsuit. Not all federal district courts have adopted the mandatory disclosure rules, but most have adopted at least a modified form of mandatory initial disclosure.  Depositions: Usually postponed until after written discovery has been responded to, a deposition requires the deponent to give live testimony, under oath, to be recorded by a court reporter and often by videotape. Depositions of the parties and other key witnesses are taken prior to trial, and are often used to obtain the testimony of witnesses who cannot be compelled to attend and testify at trial.  Both the Federal Rules of Civil Procedure and the analogous rules in most states limit the number of depositions that may be taken by a party, as well as the length of any deposition. STAGES OF A LAWSUIT: TRIAL - PT. I  Once the trial court has ruled on all pending motions, if one or more of plaintiff’s claims and/or defendant’s counterclaims has/have survived, the case will proceed to trial.  Trial may be with or without a jury. A trial without a jury is called a bench trial. In a bench trial, the trial judge is the arbiter of all questions of fact and of law. (2) Examination of Witnesses: The plaintiff (or, in a criminal case, the State), who has the burden of proving her (its) case, presents her witnesses first.  Direct Examination: Questioning of a witness by counsel for the party who called the witness. Pg 67  Cross-Examination: Questioning of a witness by counsel for the opposing party.  Re-Direct and Re-Cross: More of the same, typically limited in scope to issues raised by opposing counsel’s questioning. STAGES OF A LAWSUIT: TRIAL - PT. IV (3) Closing Argument: After both sides have presented all of their witnesses, counsel for each party is permitted to summarize the evidence for the jury and argue why the evidence proves or disproves the plaintiff’s case.  In most cases, counsel for the plaintiff will argue first and last – that is, plaintiff’s counsel will give an “opening” jury argument, followed by defense counsel’s argument, ending with a “rebuttal” argument by plaintiff’s counsel. (4) Jury Instructions: The judge instructs the jury on the issues they must decide and the law governing the case. Counsel for all parties are permitted to submit proposed issues and instructions and to object to incorrect or inappropriate matters.  In some jurisdictions, these instructions are given before jury argument; in others, they are given following jury argument. (5) Verdict: After deliberating the judge’s instructions and the evidence, the jury renders a verdict setting forth its findings and the amount of damages, etc., if any. 재재재재 재재 pg 68 STAGES OF A LAWSUIT: TRIAL - PT. V  Dispositive Motions: Motions asking the trial court to dispose of a party’s claims for affirmative relief, to alter or disregard the jury’s verdict, or to order a new trial.  Motion for Directed Verdict: In a jury trial, a motion for the judge to take the decision out of the jury’s hands and direct a verdict for the moving party because the non-moving party has failed to provide sufficient evidence to prevail on its claims.  Motion for Judgment Notwithstanding the Verdict: In a jury trial, a motion asking the court to enter judgment in favor of the moving party, despite the jury’s verdict in favor of the non- moving party. This Motion (a.k.a. Motion for Judgment N.O.V.) and the Motion for Directed Verdict have been merged under the Federal Rules into a Motion for Judgment as a Matter of Law.  Motion for New Trial: A motion asserting that the trial, whether a jury trial or a bench trial, was so fundamentally flawed – because of error by the trial judge, newly discovered evidence, prejudice, or other reason(s) – that a new trial is required to prevent a miscarriage of justice. Pg 69 STAGES OF A LAWSUIT: APPEAL - PT. I  If the losing party at trial is unsuccessful in persuading the trial court to grant any of its post-trial motions, the party may file an appeal, asking a court with appellate jurisdiction over the trial court to review and set-aside the judgment.