chapter 4 alternative, judicial, and e- dispute resolution

Copyright © 2010 Pearson Education, Inc. Publishing as Prentice Hall.

Chapter 4

Alternative, Judicial, and E-Dispute Resolution

Copyright © 2010 Pearson Education, Inc. Publishing as Prentice Hall. 4-2

Pretrial Litigation Process Pleadings Discovery Dismissals and pretrial judgments Settlement conference


Pleadings Complaint - the document the plaintiff

files with the court and serves on the defendant to initiate a lawsuit

Summons - a court order directing the defendant to appear in court and answer the complaint

Answer - the defendant’s written response to the plaintiff’s complaint that is filed with the court and served on the plaintiff


Intervention and Consolidation

Intervention The act of other parties to join as

parties to an existing lawsuit Consolidation

The act of a court to combine two or more separate lawsuits into one lawsuit


Statute of Limitations Statute of

limitations Establishes the

period during which a plaintiff must bring a lawsuit against a defendant


Discovery Discovery—a legal process during which

both parties engage in various activities to discover facts of the case from the other party and from witnesses prior to trial

Major forms of discovery Depositions Interrogatories Production of documents Physical and mental examinations


Pretrial Judgments Motion for judgment on the pleadings

Alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts.

Motion for summary judgment Motion that asserts that there are no factual

disputes to be decided by the jury; if so, the judge can apply the proper law to the undisputed facts and decide the case without a jury.


Settlement Conference

Court may direct parties to appear for a settlement conference or pretrial hearing.

If there is no settlement, the pretrial hearing is used to identify major issues.


Phases of a Trial

Jury selection Opening

statement Plaintiff’s case Defendant’s case Rebuttal and

rejoinder


Phases of a Trial Closing

arguments Jury instructions Jury

deliberations Verdict Entry of

judgment


The Appeal In a civil case, either party can appeal the

trial court’s decision once a final judgment is entered.

In a criminal case, only the defendant can appeal.

An appellate court will reverse a lower court decision if it finds an error of law in the record. It will generally not reverse a finding of fact.


Types of Alternative Dispute Resolution (ADR)

Arbitration Mediation and conciliation Minitrial Fact finding Judicial referee


Arbitration Arbitration is a form of ADR in

which parties choose an impartial third party to hear and decide the dispute.

Many contracts require that disputes arising out of the contract be submitted to arbitration.


Mediation and Conciliation Mediation

A form of ADR in which the parties choose a neutral third party to act as the mediator of the dispute

Conciliation A form of mediation in which the parties

choose an interested third party to act as the mediator


Minitrial A minitrial is a

session, usually lasting a day or less, in which the lawyers for each side present their cases to representatives of each party who have authority to settle the dispute.


Fact-Finding Fact-finding is a process

in which the parties hire a neutral person to investigate the dispute.

The fact-finder reports his or her findings to the adversaries and may recommend a basis for settlement.


Judicial Referee If the parties agree, the court may

appoint a judicial referee, often a retired judge, to conduct a private trial and render a judgment.


E-Dispute Resolution Services offered online E-Arbitration E-Mediation

Settlement of claims can be reached quickly and less expensively

chapter 4 alternative, judicial, and e- dispute resolution

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