Chapter 3 - Judicial, Alternative, and E-Dispute Resolution
Chapter 3 - Judicial, Alternative, and E-Dispute Resolution MGT 2106
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This 4 page Class Notes was uploaded by Megan Koh on Friday September 9, 2016. The Class Notes belongs to MGT 2106 at Georgia Institute of Technology taught by Karie Denise Davis-Nozemack in Fall 2016. Since its upload, it has received 5 views. For similar materials see Legal Aspects of Business in Business Administration at Georgia Institute of Technology.
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Date Created: 09/09/16
Chapter 3: Judicial, Alternative, and E-Dispute Resolution Megan Koh Litigation • Litigation - is the process of bringing, maintaining, and defending a lawsuit. • The pretrial litigation process can be divided into the following major phrases: 1. Pleadings 2. Discovery 3. Pretrial Motions 4. Settlement Conference Pleadings • Pleadings - include the paperwork that is ﬁled with the court to initiate and respond to a lawsuit. The major pleadings are as follows: 1. Complaint - is the document a plaintiﬀ ﬁles with the court and serves on the defendant to initiate a lawsuit. Once the complaint has been ﬁled with the court, the court issues a summons. A. Summons - is a court order that directs the defendant to appear in court and answer the complaint. 2. Answer - is the defendant’s written response to a plaintiﬀ’s complaint that is ﬁled with the court and served on the plaintiﬀ. 3. Cross-complaint - is a document ﬁled by the defendant against the plaintiﬀ to seek damages or some other remedy. In this case, the defendant is the cross-complainant, and the plaintiﬀ is the cross-defendant. Role switcheu! 4. Reply - is a document ﬁled by the original plaintiﬀ to answer the defendant’s cross- complaint. • Intervention - is the act of others to join as parties to an existing lawsuit. • Consolidation - is the act of a court to combine two or more separate lawsuits into one lawsuit. • Class Action - is a lawsuit where a group of plaintiﬀs with common claims collectively bring a lawsuit against a defendant. • Statute of Limitations - is a statute that establishes the period during which a plaintiﬀ must bring a lawsuit against a defendant. Discovery • Discovery - is a legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial. • Deposition - is an oral testimony given by a party or witness prior to trial. The testimony is given under oath and is transcribed. • Deponent - is a party who gives her or her deposition. • Interrogatories - are written questions submitted by one party to another party. The questions must be answered in writing within a stipulated time. • Production of Documents - is a request by one party to another party to produce all documents relevant to the case prior to the trial. • Physical or Mental Examination - is a court-ordered examination of a party to a lawsuit before trial to determine the extent of the alleged injuries. Pre-Trial Motions Chapter 3: Judicial, Alternative, and E-Dispute Resolution Megan Koh Pre-trial Motion - is a motion a party can make to try to dispose of all or part of a lawsuit • prior to trial. There are two pre-trial motions: 1. Motion for Judgment on the Pleadings - is a motion that 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. 2. Motion for Summary Judgment - is a motion that asserts that there are no factual disputes to be decided by the jury and that the judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by aﬃdavits, documents, and deposition testimony. Settlement Conference • Settlement Conference (Pretrial Hearing) - a hearing before a trial in order to facilitate the settlement of a case. Trial • Jury trial - is a trial ruled by a jury. • Trier of Fac-tis the jury in a jury trial or the judge when there is not a jury trial. • Trial Brie-fcontains legal support for its side of the case. • The stages of a trial are as follows: 1. Jury Selection • Void Dire- is the process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions. • Impaneled - is the process that happens to the appropriate number (typically six to twelve) of selected jurors, where they are sworn in. Sequestering - is when a jury is separated from family for important cases. • 2. Opening Statements - are usually summaries of the main factual and legal issues of the case and descriptions of why he or she beliefs the client’s position is valid. 3. The Plaintiﬀ’s Case • Burden of Proof - is the plaintiﬀ’s responsibility to persuade the trier of fact of the merits of his or her case. • Plaintiﬀ’s Case - is the aforementioned case. • Direct Examination - is when the plaintiﬀ’s attorney examines the witness. • Cross-Examination - is when the defendant’s attorney examines the witness. • Re-Direct Examination - is when the plaintiﬀ’s attorney examines the witness again. 4. The Defendant’s Case - proceeds after the plaintiﬀ has concluded his or her case. The case must (1) rebut the plaintiﬀ’s evidence, (2) prove any aﬃrmative defenses asserted by the defendant), and (3) prove any allegations contained in the defendant’s cross-complaint. 5. Rebuttal and Rejoinder Rebuttal - is when the plaintiﬀ’s attorney can call witness and put forth evidence to • rebut the defender’s case. • Rejoinder- is when the defendant’s attorney can do the same and rebut the rebuttal. 6. Closing Arguments - are arguments used by both attorneys to convince the jury to render a verdict for his or her client by pointing out the strengths in the client’s case and the weaknesses in the other side’s case. 7. Jury Instructions, Deliberation, and Verdict • Jury Instructions - are instructions that the judge gives to the jury that inform the jurors of the law to be applied in the case. Chapter 3: Judicial, Alternative, and E-Dispute Resolution Megan Koh • Jury Deliberation - is when the jury retires to the jury room to consider the evidence and attempt to reach a decision. • Verdict- is the consensus of the jury. In civil cases, the jury will assess damages. In criminal cases, the jury will consider penalties. 8. Entry of Judgment • Judgment - is the oﬃcial decision of the court. • Judgment Notwithstanding the Verdict (Judgment NOV or JNOV) - is when the court overturns the verdict if it ﬁnds bias or jury misconduct. • Remittitur - is when the judge reduces the amount of money damages awarded by the jury if he or she ﬁnds the jury to have been biased, emotional, or inﬂamed. • Written Memorandum - sets forth the reasons for the judgment. Record - is the memorandum, the trial transcript, and evidence introduced at the trial. • E-Courts and E-Courts Resolution • Electronic Courts(E-courts or Virtual Courthouse) - is a court that either mandates or permits the electronic ﬁling of pleadings briefs, and other documents related to a lawsuit. • Electronic Filing (E-ﬁling) - is the electronic ﬁling of pleadings, briefs, and other documents with the court. • Electronic Dispute Resolution (E-dispute Resolution) - is the use of online alternative dispute resolution services to resolve a dispute. • Electronic Arbitration (E-arbitration) - is the arbitration of a dispute using online arbitration services. • Electronic Mediation (E-mediation) - is the mediation of a dispute using online mediation services. Appeal • Appeal - is the act of asking an appellate court to overturn a decision after the trial court’s ﬁnal judgment has been entered. • Opening Brief - is when the appellant’s attorney sets forth legal research and other information to support his or her contentions on appeal. • Responding Brief - answers the appellant’s contentions. • Finding of Fact- from a lower court cannot be reversed by an appellant court. Alternate Dispute Resolution • Nonjudicial Dispute Resolution (Alternative Dispute Resolution or ADR) - are methods of resolving disputes other than litigation. 1. Negotiation - is a procedure whereby the parties to a dispute engage in discussions and bargaining to try to reach a voluntary settlement of their dispute. •Settlement Agreement - is the end of negotiation, in which both parties voluntarily enter into an agreement on their dispute. 2. Arbitration - is a form of alternative dispute in which the parties choose an impartial third party to hear and decide the dispute. •Arbitration Clause - is a clause in a contract that requires disputes arising out of the contract to be submitted to arbitration. Chapter 3: Judicial, Alternative, and E-Dispute Resolution Megan Koh •Submission Agreement - is when disagreeing parties agree to submit a dispute to arbitration after the dispute arises. Submissions agreements exist when arbitration clauses do not. •Federal Arbitration Act - is a federal statute that provides for the enforcement of most arbitration agreements. •Binding Arbitration - is when the parties agree in advance to be bound by the arbitrator’s decision and remedy. •Nonbonding Arbitration - is when the decision and award of the arbitrator can be appealed to the courts. Courts usually give great deference to an arbitrator’s decision and award. 3. Mediation - is a form of alternative dispute resolution in which the parties use a mediator to propose a settlement of their dispute. Other Deﬁnitions • Plaintiﬀ - is the party who ﬁles a complaint. • Defendant - is the party who ﬁles a response. • Appellant (Petitioner) - is the appealing party in an appeal. • Appellee (Respondent) - is the responding party in an appeal. Lecture Notes • $75,000 of damages must be collected for cases to be brought to a state court. • Children can appoint guardians to go to court for them. Injured will have ﬁlled out oﬃcial documents appointing a representative, or, if not, a representative close to them will go to court for them. Mentally-ill cannot be sued.
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