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ECU FINA 2244 - Chapter 3 Outline

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Chapter 3Trials and Resolving DisputesI. Strategic ConsiderationsA. Adversarial system- Opponent or enemy, parties bring lawsuit and presents issues; let the best Party win. Court is Adversarial B. Business as Plaintiff (B.P.) vs. Business as Defendant (B.D.)- (B.P.)- expense, may lose, how to get their money(B.P.)- may lose, reputation, Business relationships, Insurance Policy II. Trial ProcedureA. The players- plaintiff and Defendant (Civil Court) B. Service of process- Court must have jurisdiction, pleading’s being served,initial pleading is complaint - Complaint- claims against defendant, evidence, facts - Remedy- what you have to win C. Pleadings- The complaint- claims against defendant, evidence, facts- Defendant’s Responses- Motion to dismiss - If granted, the claim is dismissed without any evidence being presented by the other side. A motion to dismiss has taken the place of the common law demurrer in most modern civil practice.- answer- direct response to plaintiff - affirmative defenses- same reasoning on what happened - counterclaims- Claims of Plaintiff information from addressing parties - The replyD. Discovery- Definition- process of obtaining information from opposing parties - Purposes- To present evidence and helps to narrow down the issues. Encourages settlement.- Some tools- Deposition- sworn in person testimony in court- expert witnesses – (Barabin) Paper Mill, aspestos. Judges job to serve as a gatekeeper for reliability and expert attorneys- interrogatories- written question to go in further information - orders for production of documents- reproduce documents - requests for admissions- - orders for mental or physical examinations- check to seeif you are capable to stand trial - Sanctions- Punishments by Courts, in not met Discovery ProcessE. Motion for Summary Judgment – legal standard- no material or facts F. Pretrial Conference- prepare trial, encourages settlement G. Trial- Jury vs. no jury- i. criminal court has a guaranteed right to a jury ii. civil court is not guaranteed a jury - Voir dire- Process of picking jury, there are 12 people on the bench, they also have 1 or 2 extras - Stages of trial- opening statement- synopsis of facts/story - direct, cross, re-direct, re-cross- when the attorneys question and re-question the person on oath - Closing- summation, or summing up is the concluding statement of each party's counsel reiterating the important arguments for the trier of fact, often the jury, in a court case.- Instruction of Jury- are the set of legal rules that jurors ought to follow when deciding a case.- Motion for summary judgment/directed verdict/JMOL-Judgment as a matter of law (JMOL) is a motion made by aparty, during trial, claiming the opposing party has insufficient evidence to reasonably support its case.i. Burden of persuasion – PPE, CCE, BRD- Theobligation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true. In civil cases, a party's burden is usually "by a preponderance of the evidence."ii. Pattern Jury Instructions- Verdict- outcome of case made by the jury or judge Hong Jury- case is tried again H. Remedies- definition of remedy- The way that rights are enforced, or how you are compensated for their violation - equitable remedies vs. monetary damages- Equitable- Actions Monetary- Money - monetary damages- compensatory- money to restore late position you were in before injury, or cost incurred since injury. Naples- builds home, finds damages, only award half of the amount. - Punitive- Actions are bad, conduct is especially bad- Nominal- No real injury- Equitable remedies and “clean hands”: Action. Clean Hands:you are not at fault in the situation.- specific performance: court order that requires party that promises to give you something or to do something - injunction: court order to do something, not something, or something differently. Temporary or permanent i. TRO: Temporary Restraining Order until the court can hear further evidence and decide whether to issue a preliminary injunction.ii. preliminary injunctions: to preserve status quote, public interest iii. Pre-Paid Legal Services, Inc.- insurance plan offered by a number of different companies and marketed through employers, labor unions, credit unions, department stores, credit card companies, and even door to door.iv. permanent injunctions- enforced indefinitelyIII. Appeals – for errors of law, not fact!A. Types of argument- brief, written documentation position, law as it applies in the case Eral ArgumentB. Three powers of appellate courts- Affirm- lower courts decision, reversedecision, remand- send case back to lower court, modifyC. Three types of appellate opinion- majority opinion, concurring opinion- agree with opinion, different opinionIV. EnforcementA. Res judicata- theme decided by courts case is done B. Writ of execution- court order to seise property and sell and use proceeds for case C. Garnishment- amount of wages to be withheld V. ADR- alternative dispute A. Arbitration1. Definition and advantages- Neutral people resolve dispute. Results arekept quite/private 2. Federal Arbitration Act/Uniform Arbitration Act- (FAA)- Agreements to arbitrate must be upheld (UAA)- harmonize the law in force in the fifty U.S. states3. Processa. submissionb. selectionc. hearingd. awarde. appeal – four grounds for overturning award4. Voluntary arbitration and the Arbitration Fairness ActB. Negotiation1. Definition2. Four stages 3. Ethical dutiesC. Mediation1. Mediation as opposed to negotiation or arbitration2. Mediation Process3.


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