ADR alternate disputes resolutions NegotiationAdvantage inexpensive not complicated fast Downside Not binding MediationInvolves a independent NUETRAL 3rd party the mediator hired by conflicted party to solve dispute to get resolution Goal I to settle for rational solution to satisfy both parties If court mandated they must send info to judge 2 hours 20 hours most les than 8 hours Downside Not binding Advantage free look at their case what their defense is ArbitrationAdvantage Less expensive than court faster cheaper and can be binding to get resolution of the matter Disadvantage Discovery is limited Most formal of the 3 File a submission similar to a complain describes controversy breach of contract identifies the parties in the dispute list the remedy or seeking make a choice if binding or not binding to start process Mediator and arbitrator If non binding fancier mediation If binding its arbitration After submission they set hearing date Not trial less formal Decides how many arbitrators Have mini trial Opening arguments Evidence presented Witnesses can be called Cross exam of witnesses Closing Argument All presented to arbitrator not a judge The decision by the arbitrator is called an award typically 3 weeks to get award Award is binding but some exceptions Fraud Bias Arbitrator Incompetent Arbitrator hardest to show 1 in a million to overturn Clauses Almost every contract has an arbitration clause Forum protect yourself so that you re arbitrating in your backyard Want to say in event of dispute that the arbitration will be in certain state advantage of home court Language want in your language don t want to loose anything in translation Choice of Law Choice of your own states law in event of dispute they will use WV law Rules matter will be arbitrated following rules of of arbitrators in my clause want to be quick don t spend time arguing about how many a lot of times its three one side other side and then those selected choose one Discovery interrogatory questions sent to the opposing side to answer questions for case 50 100 interrogatories that are relevant Can limit discovery so you re not tied up for years Most important decided in clause weather its binding or non binding Torts A Civil Wrong Civil harm To person or to property standard Under which your judged Prepomperous of the evidence much lower standard the criminal jury for verdict Remedy Criminal state Usually violating a statute driving while intox shop lifting standard Under which your judged Beyond reasonable doubt Unanimous for verdict Remedy fine or jail or death Why criminal higher level Because the penaltys are so severe Civil wrongs Tort Torts are black and white if you meet the criteria its torts Intentional Most common assault a threat creating reasonable apprehension in a person Battery the actual contact False Imprisonment intentional confinement of another person WITHOUT JUSTIFICATION you can have battery without assault and assault without battery Defenses Consent Sport you consented to the risk of getting hurt Self defense you are free to use lethal defenses if you are in eminent threat of serious bodily harm and or death Common sense react to danger presented Can retaliate with equal harm for protection Knife for knife squirt gun for squirt gun Flee first if able Castle theory house is your castle and can defend it with deadly force Not obligated to ask questions Stand your ground if you felt threatened with serious harm than you can shoot Not all states recognize this defense Self defense applies to self and other Defense of property court will rarely let you use deadly force for property Necessity excusable act what you did was wrong but it was necessary for the public good Rescued kid drowning in a pool even though you had to trespass to do it Unintentional he skipped Defamation either written or oral statement that hurts a persons character or reputation or character Slander and libel Slander spoken Libel written To have you must have publication announce to a third party or independent HAVE TO HAVE THIRD PART INVOLVED Per se you re guilty until proven innocent Defense for defamatory comment Truth but there is some privilege absolute legislative trial Trial and legislative can say anything and not defamatory Defense Absence of malice if youre a public figure like celebrity or sports figure or then you put yourself out there to be that figure The person who makes the defamatory statement must do it with malice to intentionally harm Very high standard to be defamatory As a public figure you have to just grow a thick skin Defense by mag or new is absence of malice Text someone and say you re a thief and they post it its not your defamation Tort Invasion of privacy Appropriation using someone s name pictures likeness voice without their consent for gain Implying they support your product Intrusion has a reasonable expectation of privacy in their own home If someone is ease dropping or wiring your phone without a court order Peeping tom False Light printing something that puts someone in a bad false light Printing a false story Fraud another intentional tort Intentional misrepresentation of a fact for gain benefit Lying for gain To have fraud 1 misstatement of a material fact 2 know statement was false 3 made with intent to deceive 4 other party must rely on that statement 5 Harm Puffery sellers talk Go to buy used car and salesman says just little old women used only on Sundays But that wasn t true This isn t fraud If he set the mileage back than yes fraud Tort Interference with Contractual Relationship 1 valid contract 2 knowledge 3 intent Company x has a sales person and you run a competing business and want to hire X so you approach X and he says he cant because an employment agreement Tell him forget it you ll pay him double He accepts and quits Disregarding a known contract Tort Trespass Going on someone else s property without permission Not liable to harm or damage done to trespasser Exception attractive nuisance Swimming pool or abandoned building magnets for people Will be their fault if an accident occurs because they want fences around pools and abandoned houses boarded up Defenses to trespass Necessity needed to rescue someone Easement permission to go on another s property A house in someones back yard like at the shore where you have to go on the other persons property to access your house Written agreement to access someone s property Taking someone s property is called trespass