Chapter 3: Courts and Alternative Dispute Resolution
By: Leslie A. Fischman (WLAC Paralegal School: 2008)
I. The Judiciary Role in American Government
· Role of the judiciary: to interpret and apply the law
· Judicial Review
Three branches of government
§ Legislative: makes the laws
§ Executive: enforces the laws
§ Judicial: interprets the laws
o Judiciary determines whether the laws or the actions of the other two are constitutional
o Judicial Review: the process by which a court decided on the constitutionality of legislative enactments and actions of the executive branch
II. Basic Judicial Requirements
· JURISDICTION
o Before any court can hear a case it must have jurisdiction over the person against whom the suit is brought (defendant) or over the property involved in that suit
o Jurisdiction over persons: in personum, over any persons or business that resides in a certain geographical area
§ State trial court, has jurisdictional authority over residents in the state, such as a county or district
§ The state’s highest court (state supreme court) has jurisdiction overall residents of that state
o Long-arm statute: a court can exercise personal jurisdiction over certain out-of-state defendants based on the activities that took place within the state. The person must have certain minimum contacts with that state for the statute to apply
o Jurisdiction over property: can issue jurisdiction over property within its boundaries
§ In rem jurisdiction
§ Accident in FL, and def and plaintiff are from two diff states, case could be brought in FL state court on the basis of the court’s in rem jurisdiction
o Jurisdiction over Subject Matter:
§ A limitation on the types of cases a court can hear
§ In fed and state courts there are courts of general (unlimited) jurisdiction and courts of limited jurisdiction
§ Ex. court of general jurisdiction is a state trial court or a federal district court
§ Ex. State court of limited jurisdiction:
ú Probate court: state courts that handle matters relating to transfer of a person’s assets and obligations after that person’s death, including custody and guardianship of children
§ Ex. Federal court of limited subject-matter jurisdiction:
ú bankruptcy courts: handle only bankruptcy proceedings
§ in both the federal and state court systems, a court’s subject-matter jurisdiction can be limited not only by subject of the lawsuit but also by the amount in controversy, by whether a case is a felony, or a misdemeanor, or by whether the proceeding is a trial or an appeal
o Original and Appellate Jurisdiction
§ Court in which lawsuit begin are courts with original jurisdiction
§ Federal court system, the district courts are the trial courts
§ Any court having original jurisdiction is normally known as a trial court. Courts having appellate jurisdiction act as reviewing courts, or appellate courts
o Jurisdiction of Federal Courts
§ Fed gov’t is a gov’t of limited power, therefore jurisdiction of fed. Courts is limited
§ U.S. Constitu. Estb. The boundaries for fed. Jurisdiction
§ When a plaintiff’s cause of action is based in part on the U.S constitution, a treaty, or a federal law, then a federal question arises, and the case comes to the judicial power of the federal courts.
§ Federal question cases can originate in federal court, but also don’t necessarily have to be tried in federal court
§ People who claim constitutional rights violated can begin suits in federal court
§ The plaintiff can file the action in either a federal court or a state trial court b/c fed and state courts have concurrent jurisdiction
§ Federal district courts can also exercise original jurisd. Over cases involving diversity of citizenship:
ú Cases btw. citizens of different states
ú A foreign county and citizens of a state or of different states
ú Citizens of a state and citizens or subjects of a foreign county
§ Or if the amount in controversy in more than $75,000
o Exclusive Jurisdiction: Jurisdiction that exists when a case can be heard only in a particular court or type of court
o Concurrent Jurisdiction: Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in federal or state court.
· Jurisdiction in Cyberspace
o “The Sliding Scale” Standard: determines when the exercise of jurisd. Can be placed over a an out-of-state defendant is proper (minimum contact requirements)
· Venue
o Geographical district in which a legal action is tried and from which the jury is selected
o Venue in a civil case is where the defendant resides vs. venue in a criminal trial is where the crime occurred
· Standing to Sue
o Before a person can bring a lawsuit to court, the party must have standing to sue or a sufficient stake in the matter to justify seeking relief through the court system
§ Standing to sue also requires that the controversy at issue be a justiciable controversy –a controversy that is real and substantial, as opposed to hypothetical or academic.
III. The State and Federal Court Systems
· A. State Court Systems
o 1) trial courts of limited jurisdiction
o 2) trial courts of general jurisdiction
o 3) appellate courts
o 4) the state’s highest court (often called the state supreme court)
· generally any party in a lawsuit has the opportunity to plead a case before a trail court and if they lose they can go before at least one appellate court
· If the case involves a federal statute or federal constitutional issue, the decision of the state supreme court on that issue may be further appealed to the U.S. Supreme Court
o 1. Trial courts
§ courts in which trials are held and testimony is taken
§ state trial courts have either general or limited jurisdiction
§ trial courts that have general jurisdiction as to subject matter can be called:
ú county, district, superior, or circuit courts
§ state trial courts of general jurisdiction have jurisdiction over a wide variety of subjects, including both civil disputes and criminal prosecutions
§ courts of limited jurisdiction are called: special inferior courts or minor judiciary courts
ú small claims court: are inferior trial courts that hear only civil cases involving claims of less thana certain amount, such as $5,000. Conducted informally, another inferior trial court is the municipal court
ú decisions of small claims courts and municipal courts may sometimes be appealed to a state trial court of general jurisdiction.
§ Courts of limited jurisdiction as to Subject matter include domestic relations courts: which handle primarily divorce actions and child-custody disputes, and probate courts as well.
o 2. Appellate, or Reviewing, Courts
§ Every state has at least one court of appeals, which may be an intermediate appellate court or the state’s highest court
§ Appellate court consists of a panel of 3 or more judges, who review the record of the case on appeal, including transcript of trial proceedings, and determines whether the trial court committed an error.
§ Question of Fact: in a lawsuit an issue that involves only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (or by the judge if there is no jury)
§ Question of Law: concerns the application or interpretation of law. only a judge, not a jury, can rule on questions of law.
o 3. Highest State Courts
§ Usually called the supreme court
§ However in NY and Maryland the highest state court is called the court of appeals
§ The decisions of each state’s highest court are final on all questions of state law
§ Only when issues of federal law are involved can a decision made by a state’s highest court be overruled by the U.S. Supreme Court
· B. The Federal Courts System
o 1) the U.S. District Courts (trial courts of general jurisdiction) and various courts of limited jurisdiction
o 2) U.S. Courts of Appeals (intermediate courts of appeals)
o 3) the U.S. Supreme Court
§ unlike state courts federal judges are not elected they are appointed by the president
o a writ of certiorari: is an order issued by the court to a lower court requiring the latter to send it the record of the case for review.
§ Court will not issue a writ unless 4/9 justices approve it (“the rule of four”)
IV. Following a State Court Case
· Litigation: the process of resolving a dispute through the court system
· A. The Pleadings
o The complaint and the answer (and the counterclaim and reply) together make-up the pleadings
o They inform each party of the other’s claims and specify the issues (disputed questions) involved in the case
o The plaintiff’s complaint
o Process server issues a summons and a copy of the complaint
o Default judgment: defendant’s failure to answer results in awarding the plaintiff damages alleged in their complaint.
o The Defendants Answer:
§ Either admits the statements or allegations set forth in the complaint or denies them and outlines any defenses that the defendant may have
o Counterclaim is answered with a reply
o Motion to dismiss: requests the court to dismiss the case for stated reasons
· B. Pretrial Motions
o Motion for Judgment on the Pleading: or on the merits of the case
§ Judge will grant motion only if there is no dispute over the facts and the sole issue to be resolved in a question of law
o Motion for Summary Judgment: the court may consider evidence outside the pleadings, such as sworn statements (affidavits) by parties or witnesses, or other documents relating to the case
§ A motion for summary judgment can be made by either party
§ A motion for summary judgment will be granted only if there are no genuine questions of fact and the sole question is a question of law
§ Unlike a motion for judgment on the pleadings, a motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery
· C. Discovery
o A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial, such as access to witnesses, documents, records, and other types of evidence.
§ Depositions: sworn testimony by a party to the lawsuit or any witness. Deponent answers attorney’s questions and the ques. and answs. Are recorded by an authorized court official and sworn to and signed to by the deponent.
§ Interrogatories: are written questions for which written answers are prepared and then signed under oath.
· D. Pretrial conference
o Informal discussion before trial btw judges and attorneys
o Discuss possible settlement without trial
· E. Jury Selection
o A trial can be held with or without a jury
o 7th amendment guarantees right to a jury in federal courts when amount in controversy exceeds $20
o Voir dire: the jury selection process
§ A party may challenge a prospective juror for cause –that is, provide reason why an individual should not be sworn in as a juror
· F. At the Trial
o Motion for a directed verdict:
§ In a jury trial, a motion for the judge to take the decision out of the hands of the jury an to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support her or his claim
· Post-trial motions
o Motion for judgment: “notwithstanding the verdict”
o Motion for a new trial: asking the judge to set aside the adverse verdict and to hold a new trial
· The Appeal
o A party must have legitimate grounds to file an appeal, and must be able to claim that the lower court committed an error
o A notice of appeal must be filed with the clerk
§ Filing the appeal
ú Briefs
§ Appellate Review
§ Appeal to a Higher Appellate Court
· Enforcing the Judgment
o Uncertainties of the litigation process and lack of guarantees any judgment will be enforceable
V. Alternative Dispute Resolution (ADR)
· The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.
· Negotiation: process in which parties attempt to settle their dispute informally, with or without attorney’s to represent them
· Mediation: methods of settling disputes outside the court by using a neutral third party, who acts as a communicating agent between theparties and assists them in negotiating a settlement.
· Arbitration: the settling of a dispute by submitting it to a disinterested third party (other than the court), who renders a decision that is (most often) legally binding. (can be time consuming and expensive)
o Arbitration clause: contract/written agreement that any dispute that arises under the contract will be resolved through arbitration rather than the court system.
o Issue of arbitrability: one party may file suit to compel arbitration. The court in which the suit is brought will decide not the controversy but the arbitrability.
o Mandatory Arbitration in the Employment Context
· Other types of ADR
o Assisted negotiation
o Summary jury trials (SJT’s): trial is held, but jury’s verdict is not binding. the verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.
By: Leslie A. Fischman (WLAC Paralegal School: 2008)
I. The Judiciary Role in American Government
· Role of the judiciary: to interpret and apply the law
· Judicial Review
Three branches of government
§ Legislative: makes the laws
§ Executive: enforces the laws
§ Judicial: interprets the laws
o Judiciary determines whether the laws or the actions of the other two are constitutional
o Judicial Review: the process by which a court decided on the constitutionality of legislative enactments and actions of the executive branch
II. Basic Judicial Requirements
· JURISDICTION
o Before any court can hear a case it must have jurisdiction over the person against whom the suit is brought (defendant) or over the property involved in that suit
o Jurisdiction over persons: in personum, over any persons or business that resides in a certain geographical area
§ State trial court, has jurisdictional authority over residents in the state, such as a county or district
§ The state’s highest court (state supreme court) has jurisdiction overall residents of that state
o Long-arm statute: a court can exercise personal jurisdiction over certain out-of-state defendants based on the activities that took place within the state. The person must have certain minimum contacts with that state for the statute to apply
o Jurisdiction over property: can issue jurisdiction over property within its boundaries
§ In rem jurisdiction
§ Accident in FL, and def and plaintiff are from two diff states, case could be brought in FL state court on the basis of the court’s in rem jurisdiction
o Jurisdiction over Subject Matter:
§ A limitation on the types of cases a court can hear
§ In fed and state courts there are courts of general (unlimited) jurisdiction and courts of limited jurisdiction
§ Ex. court of general jurisdiction is a state trial court or a federal district court
§ Ex. State court of limited jurisdiction:
ú Probate court: state courts that handle matters relating to transfer of a person’s assets and obligations after that person’s death, including custody and guardianship of children
§ Ex. Federal court of limited subject-matter jurisdiction:
ú bankruptcy courts: handle only bankruptcy proceedings
§ in both the federal and state court systems, a court’s subject-matter jurisdiction can be limited not only by subject of the lawsuit but also by the amount in controversy, by whether a case is a felony, or a misdemeanor, or by whether the proceeding is a trial or an appeal
o Original and Appellate Jurisdiction
§ Court in which lawsuit begin are courts with original jurisdiction
§ Federal court system, the district courts are the trial courts
§ Any court having original jurisdiction is normally known as a trial court. Courts having appellate jurisdiction act as reviewing courts, or appellate courts
o Jurisdiction of Federal Courts
§ Fed gov’t is a gov’t of limited power, therefore jurisdiction of fed. Courts is limited
§ U.S. Constitu. Estb. The boundaries for fed. Jurisdiction
§ When a plaintiff’s cause of action is based in part on the U.S constitution, a treaty, or a federal law, then a federal question arises, and the case comes to the judicial power of the federal courts.
§ Federal question cases can originate in federal court, but also don’t necessarily have to be tried in federal court
§ People who claim constitutional rights violated can begin suits in federal court
§ The plaintiff can file the action in either a federal court or a state trial court b/c fed and state courts have concurrent jurisdiction
§ Federal district courts can also exercise original jurisd. Over cases involving diversity of citizenship:
ú Cases btw. citizens of different states
ú A foreign county and citizens of a state or of different states
ú Citizens of a state and citizens or subjects of a foreign county
§ Or if the amount in controversy in more than $75,000
o Exclusive Jurisdiction: Jurisdiction that exists when a case can be heard only in a particular court or type of court
o Concurrent Jurisdiction: Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in federal or state court.
· Jurisdiction in Cyberspace
o “The Sliding Scale” Standard: determines when the exercise of jurisd. Can be placed over a an out-of-state defendant is proper (minimum contact requirements)
· Venue
o Geographical district in which a legal action is tried and from which the jury is selected
o Venue in a civil case is where the defendant resides vs. venue in a criminal trial is where the crime occurred
· Standing to Sue
o Before a person can bring a lawsuit to court, the party must have standing to sue or a sufficient stake in the matter to justify seeking relief through the court system
§ Standing to sue also requires that the controversy at issue be a justiciable controversy –a controversy that is real and substantial, as opposed to hypothetical or academic.
III. The State and Federal Court Systems
· A. State Court Systems
o 1) trial courts of limited jurisdiction
o 2) trial courts of general jurisdiction
o 3) appellate courts
o 4) the state’s highest court (often called the state supreme court)
· generally any party in a lawsuit has the opportunity to plead a case before a trail court and if they lose they can go before at least one appellate court
· If the case involves a federal statute or federal constitutional issue, the decision of the state supreme court on that issue may be further appealed to the U.S. Supreme Court
o 1. Trial courts
§ courts in which trials are held and testimony is taken
§ state trial courts have either general or limited jurisdiction
§ trial courts that have general jurisdiction as to subject matter can be called:
ú county, district, superior, or circuit courts
§ state trial courts of general jurisdiction have jurisdiction over a wide variety of subjects, including both civil disputes and criminal prosecutions
§ courts of limited jurisdiction are called: special inferior courts or minor judiciary courts
ú small claims court: are inferior trial courts that hear only civil cases involving claims of less thana certain amount, such as $5,000. Conducted informally, another inferior trial court is the municipal court
ú decisions of small claims courts and municipal courts may sometimes be appealed to a state trial court of general jurisdiction.
§ Courts of limited jurisdiction as to Subject matter include domestic relations courts: which handle primarily divorce actions and child-custody disputes, and probate courts as well.
o 2. Appellate, or Reviewing, Courts
§ Every state has at least one court of appeals, which may be an intermediate appellate court or the state’s highest court
§ Appellate court consists of a panel of 3 or more judges, who review the record of the case on appeal, including transcript of trial proceedings, and determines whether the trial court committed an error.
§ Question of Fact: in a lawsuit an issue that involves only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (or by the judge if there is no jury)
§ Question of Law: concerns the application or interpretation of law. only a judge, not a jury, can rule on questions of law.
o 3. Highest State Courts
§ Usually called the supreme court
§ However in NY and Maryland the highest state court is called the court of appeals
§ The decisions of each state’s highest court are final on all questions of state law
§ Only when issues of federal law are involved can a decision made by a state’s highest court be overruled by the U.S. Supreme Court
· B. The Federal Courts System
o 1) the U.S. District Courts (trial courts of general jurisdiction) and various courts of limited jurisdiction
o 2) U.S. Courts of Appeals (intermediate courts of appeals)
o 3) the U.S. Supreme Court
§ unlike state courts federal judges are not elected they are appointed by the president
o a writ of certiorari: is an order issued by the court to a lower court requiring the latter to send it the record of the case for review.
§ Court will not issue a writ unless 4/9 justices approve it (“the rule of four”)
IV. Following a State Court Case
· Litigation: the process of resolving a dispute through the court system
· A. The Pleadings
o The complaint and the answer (and the counterclaim and reply) together make-up the pleadings
o They inform each party of the other’s claims and specify the issues (disputed questions) involved in the case
o The plaintiff’s complaint
o Process server issues a summons and a copy of the complaint
o Default judgment: defendant’s failure to answer results in awarding the plaintiff damages alleged in their complaint.
o The Defendants Answer:
§ Either admits the statements or allegations set forth in the complaint or denies them and outlines any defenses that the defendant may have
o Counterclaim is answered with a reply
o Motion to dismiss: requests the court to dismiss the case for stated reasons
· B. Pretrial Motions
o Motion for Judgment on the Pleading: or on the merits of the case
§ Judge will grant motion only if there is no dispute over the facts and the sole issue to be resolved in a question of law
o Motion for Summary Judgment: the court may consider evidence outside the pleadings, such as sworn statements (affidavits) by parties or witnesses, or other documents relating to the case
§ A motion for summary judgment can be made by either party
§ A motion for summary judgment will be granted only if there are no genuine questions of fact and the sole question is a question of law
§ Unlike a motion for judgment on the pleadings, a motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses’ affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery
· C. Discovery
o A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial, such as access to witnesses, documents, records, and other types of evidence.
§ Depositions: sworn testimony by a party to the lawsuit or any witness. Deponent answers attorney’s questions and the ques. and answs. Are recorded by an authorized court official and sworn to and signed to by the deponent.
§ Interrogatories: are written questions for which written answers are prepared and then signed under oath.
· D. Pretrial conference
o Informal discussion before trial btw judges and attorneys
o Discuss possible settlement without trial
· E. Jury Selection
o A trial can be held with or without a jury
o 7th amendment guarantees right to a jury in federal courts when amount in controversy exceeds $20
o Voir dire: the jury selection process
§ A party may challenge a prospective juror for cause –that is, provide reason why an individual should not be sworn in as a juror
· F. At the Trial
o Motion for a directed verdict:
§ In a jury trial, a motion for the judge to take the decision out of the hands of the jury an to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support her or his claim
· Post-trial motions
o Motion for judgment: “notwithstanding the verdict”
o Motion for a new trial: asking the judge to set aside the adverse verdict and to hold a new trial
· The Appeal
o A party must have legitimate grounds to file an appeal, and must be able to claim that the lower court committed an error
o A notice of appeal must be filed with the clerk
§ Filing the appeal
ú Briefs
§ Appellate Review
§ Appeal to a Higher Appellate Court
· Enforcing the Judgment
o Uncertainties of the litigation process and lack of guarantees any judgment will be enforceable
V. Alternative Dispute Resolution (ADR)
· The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.
· Negotiation: process in which parties attempt to settle their dispute informally, with or without attorney’s to represent them
· Mediation: methods of settling disputes outside the court by using a neutral third party, who acts as a communicating agent between theparties and assists them in negotiating a settlement.
· Arbitration: the settling of a dispute by submitting it to a disinterested third party (other than the court), who renders a decision that is (most often) legally binding. (can be time consuming and expensive)
o Arbitration clause: contract/written agreement that any dispute that arises under the contract will be resolved through arbitration rather than the court system.
o Issue of arbitrability: one party may file suit to compel arbitration. The court in which the suit is brought will decide not the controversy but the arbitrability.
o Mandatory Arbitration in the Employment Context
· Other types of ADR
o Assisted negotiation
o Summary jury trials (SJT’s): trial is held, but jury’s verdict is not binding. the verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.
