Slide 1Dispute Resolution 2Civil ProcedureSteps in Beginning LitigationPossible Variations on PleadingsDiscovery -- next step after pleadingsDiscovery (cont’d)Other Steps Before TrialLitigation and Civil ProcedureAdversary SystemThe JuryProcedural Rules for a TrialThe TrialThe TrialSlide 15After the TrialDispute Resolution 3Slide 18Settlement of Disputes Outside Public CourtsLitigation versus ADRArbitration v. MediationLitigation or ADR?LEGAL AND ETHICAL ENVIRONMENT OF BUSINESSGerlinde Berger-Walliser, JD, Ph.D.,Assistant Professor of Business Law,University of ConnecticutDISPUTE RESOLUTION 2Litigation and Civil ProcedureCivil ProcedureCourt scenes•Pure fiction•http://www.youtube.com/watch?v=5j2F4VcBmeo •More realistic•http://www.youtube.com/watch?v=mZ0CRwHbpuo •A real trial•http://www.youtube.com/watch?v=QcbXAJN77NA Miwd.uscourts.govSteps in Beginning Litigation•Pleadings: Papers that begin a lawsuit1. Complaint --Short, plain statement of the allegations and the legal claims. http://www.thesmokinggun.com/documents/crime/seinfeld-wife-sued-over-cookbook The complaint is “served” on the defendant or delivered with a summons.http://www.youtube.com/watch?v=3aeF_aJ2OgA; http://www.youtube.com/watch?v=Rqbfhk2P1fQ&feature=related 3. Answer --A brief reply to the allegations (affirmative defense-you accept that the court has jurisdiction).4. Counter-Claim --Sometimes the accused party will initiate a second suit in response to the first.5. Reply --A brief reply to the counter-claim.2. Motion to dismiss -- for lack of jurisdictionPossible Variations on Pleadings•Class Actions•If the plaintiff has evidence that the wrong in question has affected a large number of unrelated persons, the suit may become a class-action suit, with the plaintiff representing an entire class of plaintiffs.•Default Judgment•If the defendant fails to answer in time, the plaintiff will ask for a default judgment, meaning an automatic win without a trial.Discovery -- next step after pleadings•Interrogatories – written questions that the other party must answer, under oath•Depositions – interview (under oath) of other party or potential witnesses; done by opposing lawyer •What is a deposition ?•Why to prepare for a deposition ?•Dos and Don’ts during a deposition•How a deposition should not look like •Production of Evidence – each side may request to see the other side’s evidence •Physical or Mental Exam – one party may request the court to order an examination of the other party if relevant•E-Discovery – electronic communications which may be requested by a party to gather information about a case. Reading all the emailsAllows both sides to uncover evidence, encouraging a settlement or ensuring few surprises during a trial.Discovery (cont’d)•Sometimes the results from interrogatories and depositions will cause one side or the other to file a motion in response. •Motion to compel answers to interrogatories – may be made if one side thinks the other has not adequately answered interrogatories•Motion for protective order – is a request to the court that the other side be made to reduce the number of depositions.Other Steps Before Trial•Summary Judgment -- a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side.•Textbook example: Jones v. Clinton (p. 45)•Final Preparation -- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.LITIGATION AND CIVIL PROCEDUREThe TrialAdversary System•The adversary system presumes that the truth will be found if lawyers are allowed to question witnesses for both sides.•In the inquisitorial system the judge asks questions to parties and witnesseshttp://momunicipallaw.files.wordpress.com/2011/08/knights-josting3.pngThe Jury•When suing for money, both plaintiff and defendant have a right to a jury trial, but may waive this right•No right to a jury when seeking an equitable remedy (e.g. injunction)•6-12 jurors•Jury decides on the facts not the law•Unanimous decision unless parties agree otherwise•Jury selection (“voir dire”)•Importance of juryselection illustrated http://college.cengage.com/blaw/0324223285_wdvl/student/lfx/lfx_15.html http://www.co.galveston.tx.us/judgecriss/courtclass/jury.htmProcedural Rules for a Trial•Burden of Proof•The plaintiff must convince the jury that its version of the case is correct.•In a civil case, the proof needs to be by________________•In a criminal case, __________________http://people.howstuffworks.com/lawsuit6.htmThe Trial•Opening Statements from both sides (plaintiff first, defendant second)•No evidence, no argument, but introduction, a brief summary of the facts each side hopes to prove•The Plaintiff’s case•Plaintiff Calls Witnesses•Questions to own witnesses is direct examination.•Lawyer only asks questions with helpful answers.•Defendant Questions Witnesses•Questions to opposing witnesses is cross examination.•Again, lawyer asks questions with helpful answers.•Re-direct examination•Second opportunity for the plaintiff’s lawyer to ask questions to the witness in reaction to the opposing lawyers cross examinationThe Trial•The defendant’s case•Defendant Calls Witnesses•Questions to own witnesses is direct examination.•Lawyer only asks questions with helpful answers.•Plaintiff Questions Witnesses•Questions to opposing witnesses is cross examination.•Again, lawyer asks questions with helpful answers.•Re-direct examination•Rules of evidence•Relevance•Non-prejudicial•Hearsay•Opinion•Cross examination example•Closing Arguments•Brief summary, by both sides, urging the jury to believe their side of the case.pJury Instructions•The judge instructs the jury to evaluate the case solely on the facts of the evidence presented.•If the case is influenced by a certain legal presumption, the judge will summarize that for the jury.pDeliberation and Verdict•The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks).•Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required.After Both Sides Rest (Finish)After Both Sides Rest (Finish)After the TrialpEnforcement of Judgment =