3 Trials Resolving Disputes MAIN TOPICS Basic Trial Procedures Procedures and Processes of Litigating a Dispute Remedies in Civil Litigation Appellate Stage Enforcement Stage Alternative Dispute Resolution ADR Arbitration Negotiation Settlement Mediation THE JUDICIAL SYSTEM The court system is adversarial in nature What is atty role ZR Parties have the responsibility for bringing a lawsuit shaping issues and presenting evidence Lawyers represent the parties claims Judges don t investigate Court applies legal rules to facts presented Trials are often costly and uncertain Complex facts extensive evidence mountains of business records involved Juries tend to be less sympathetic to businesses BASIC TRIAL PROCEDURES Pleading Stage Issue framing social issue to legal language Discovery Stage fact finding obtain info Pretrial Stage issue narrowing Trial Stage resolution Appellate Stage error correction Enforcement Stage enforcing order Verdict See exhibit 3 2 stages of lawsuit p 55 THE PLEADING STAGE Formal statements made to the court by the parties Jurisdiction needed over subject matter parties Notice given of lawsuit by Complain see 3 1 p 53 service of process Alleges facts for jurisdiction remedy remedies Requests remedy ies summons through RESPONSES TO COMPLAINT Motion to Dismiss asserts that the court does not have jurisdiction or some other procedural defect in the plaintiff s action A motion to dismiss for failure to state a cause of action a demurrer states that even if the plaintiff s claims are true the law provides no remedy for the complaint Answer may include affirmative defenses usually by defendant the answer may deny the claims Citing additional facts the defendant may have an affirmative defense a legal excuse for what happened Ex self defense Counterclaim assert his own claim against plaintiff and request relief Reply See exhibit 3 1 Casino owner pokes a hole in a Picasso and sues Lloyds of London for compensation for losses under his insurance policy with them PURPOSE OF DISCOVERY LEGAL TOOLS TO OBTAIN EVIDENCE Rules of Civil Procedure set guidelines limits to the process Purposes to 1 preserve evidence 2 limit element of surprised 3 encourage settlement Depositions of parties and witnesses including experts sometimes videotaped Interrogatories of the parties Use of Expert Witnesses through education and experience Requests for Admissions Orders of Production of Documents Physical Mental Examinations Impacts on business expensive time consuming Court may sanction a party who fails to comply with discovery requirements Default Judgment Contempt of court fines pay costs to the other party CASE BARABIN V ASTENJOHNSON INC CASE SCIENTIFIC EVIDENCE EXPERTS Henry Barabin was exposed to asbestos from 1964 1984 Mostly worked at a paper mill that used dryer felts containing asbestos Supplier was AstenJohnson In 2006 Barabin was diagnosed with rare lung cancer cause was exposure to asbestos He sued AstenJohnson moved to exclude expert testimony of Barabin s Dr Cohen because he had dubious credentials and his lack of expertise with regard to dryer felts and paper mills District Court chose not to hold a Daubert hearing to determine if Cohen was qualified expert Jury was to determine if Cohen s testimony was credible Jury found for Barabin Awarded damages of 10 200 000 AstenJohnson appealed District court determines relevance and reliability of expert testimony Admission or exclusion under Daubert rests on scientific reliability relevance of expert testimony Expert s opinion must be deduced from a scientific method to be admissible Test under Daubert is not correctness of excerpt s conclusions Rather the soundness of expert s methodology Factors in assessing reliability of expert testimony 1 Whether scientific theory technique can be has been tested 2 Whether theory technique has been subject to peer review publication 3 Whether there is known or potential error rate and 4 Whether the theory technique is generally accepted in the relevant scientific community HELD district erred New trial is provided Because no Daubert hearing was conducted District Court failed to assess if Dr Cohen applied scientific methodologies reasoning or principles Court merely allowed parties to submit experts unfiltered testimony to the jury District court abused discretion when denying AstenJohnson s motions for new trial QUESTIONS 1 Why did the trial judge not hold a Daubert hearing Rather foolish mistake as the procedure on this is quite clear One reason for appeals courts is to undo mistakes made by trial judges 2 Since Barabin s expert may be disqualified what can he do Hire a qualified expert in this area there are many as there have been numerous asbestos related suits Poor choice by Barabin s lawyer PROCEDURES PROCESSES OF LITIGATING A DISPUTE PRETRIAL STAGE Summary Judgement either party may request Judge renders it p 60 If after discovery one of the parties believes that there are no disagreements about the facts to their dispute No genuine issue of material fact the party may move the court for summary judgment By this motion the judge is being asked simply to apply the law to those facts and resolve the case Pretrial Conference either party or court may request Usually attorneys and judge attend Simplify issues Plan course of the trial Judges get parties to drop certain parts of case Reduce Helps to focus on key issues Judges often encourage parties to reach out of court Settlement See Test Yourself JURY SELECTION 6th criminal and 7th civil amendments gives right to a jury in certain cases If no use of jury judge becomes trier of fact Selection of jury involves voir dire preliminary examination of prospective jurors to determine their qualifications and suitability to serve on a jury in order to ensure the selection of fair and impartial jury Attorneys allowed limited number of challenges to reject prospective jurors without stating reason peremptory challenges Usually 12 persons on jury some less TRIAL STAGE Opening statements by attorneys Presentation of Direct Testimony Direct Examination Cross Examination Redirect Examination Re Cross Examination Closing arguments Instructions to jury also called charges Verdict by jury Judgment may be set aside for jury misconduct Ex Ex Juror was sentenced 3 days in jail Murder conviction in Arkansas thrown out Juror in Florida used Facebook to friend a defendant in a personal injury case Juror tweeted information about trial despite warning by judge