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Chapter 4: Resolving Disputes

by: Kaitlyn Mirabella

Chapter 4: Resolving Disputes LGST 3010

Marketplace > Tulane University > Business > LGST 3010 > Chapter 4 Resolving Disputes
Kaitlyn Mirabella
GPA 3.8
Legal Studies

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Hey all! Here are my Chapter 4 notes on Resolving Disputes!
Legal Studies
Class Notes
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This 5 page Class Notes was uploaded by Kaitlyn Mirabella on Saturday September 19, 2015. The Class Notes belongs to LGST 3010 at Tulane University taught by Waguespack in Summer 2015. Since its upload, it has received 28 views. For similar materials see Legal Studies in Business at Tulane University.


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Date Created: 09/19/15
Chapter 4 Resolving Disputes Litigation and Alternative Dispute Resolution Options Dispute Resolution and Business Flaming Decisions regarding how to resolve a dispute are decisions for business managers and owners Can be a crucial part of business planning and strategy that requires a thoughtful costbene t analysis Dispute Resolution Options Action Potential Benefits Potential Costs Threats Lawsuit Courtordered resolution Signi cant expenditures 1 2 3 Loss at trial or upon appeal Legal fees may be higher than the nal judgement amount awarded Possible countersuit Potential for bad publicity Nonjudicial dispute resolution Arbitration mediation or hybrid Enforceable resolution Moderate range in legal fees arbitrationmediation fees limited HR expenditures no chance of appellate fees if binding 1 2 3 Loss at arbitration that is not appealable Win in arbitration but still have to go to trial if nonbinding Potential damage to business relationship Informal settlement Cancel contract agree not to sue each other agree to a gure 1 Parties agree not to sue each other 2 Potential exists to preserve the business relationship 3 Time and talent are not used to prepare for dispute resolution methods Low range of legal fees moderate HR investment no threat of litigation Settlement negotiations may drag on Review the contract continue relationship Make contract expectations clearer and revise payments that compensate both parties for the loss Transaction is completed perhaps even at a pro t and business relationship is preserved Low range of legal fees moderate HR Potential litigation and potential for the new contract to generate yet another dispute Civil Litigation Civil litigation a dispute resolution process in which the parties and their counsel argue their views of a civil noncriminal controversy in a court of law 0 The odds of a business becoming involved in litigation have increased precipitously in recent years Stages of Litigation Prelawsuit Demand and Prelitigation Settlement Negotiations Standing 0 Standing must have in order for one party to maintain a lawsuit against another party I Must have suffered an injury in fact I Suffered harm that is direct concrete and individualized I Articulates what legal redress exists to compensate for the injury Statutes of Limitations 0 Even if standing can be established the plaintiff must file the lawsuit within a certain time limit or the case could be barred forever 0 Statue of limitations the time limitA I The moment that an injury occurs the statute of limitations begins to run and the lawsuit must be led before the time limit expires I Length of statutes of limitations vary from state to state I Also vary by the cause of action alleged Jurisdiction Pleadings Stage Complaint and Summons 0 If informal attempts at resolution fail formal action begins when the plaintiff initiates a lawsuit by ling a complaint with the local clerk of courts I Sets the pleadings stage in motion 0 The plaintiff is typically required to arrange for serving the defendant with a summons along with a copy of the plaintiffs complaint I Formal noti cation to the defendant that she has been named in the lawsuit and informs her that an answer must be led within a certain period of time Answer 0 Once the defendant is served with the complaint she must provide a formal answer within a prescribed time frame 0 Default judgment if the defendant does not answer on time she is said to default and generally will automatically lose the case without the bene t of trial Counterclaim o If the defendant believes that the plaintiff has caused her damagers arising out of the very same set of facts as articulated in the complaint the defendant flles both an answer and a counterclaim CrossClaim o The defendant can also le a crossclaim to bring in a third party to the litigation I When the defendant believes that a third party is either partially or fully liable for the damages that the plaintiff has suffered Motions Motion a document led by one party that requests court action in a matter pertaining to the litigation Discovery Stage The parties attempt to collect more evidence for trial lnculpatory evidence evidence that tends to prove a criminal offense or civil wrong Exculpatory evidence evidence that tends to prove innocence or nonliability Methods of Discovery O O O Depositions oral questions asked of either party or a witness in the case lnterrogatories written questions submitted to the opposing party that must be answered in writing within a time limitation determined by statute Requests for Production aimed at producing speci c items to help one party discover some important fact in the case usually very wide in scope Requests for Admission furthers the objective of determining what facts are in dispute and which facts both parties accept as true Pretrial Conference Several weeks before a trial Generally held between the attorneys for the parties and the judge in the case and no court reporter is present Purpose to accomplish two primary objectives 0 0 Trial Jury selection 0 O 0 To encourage settlement Court will resolve any outstanding motions confirm that discovery is proceeding smoothly and dispose of any procedural issues that arose during the pleadings or discovery stage Actual trial begins with jury selection Voir dire questioning process to reveal any prejudices that may affect their judgment of the facts After attorneys present their theories of the case and what they hope to prove to the jury in opening statements Testimony and Submission of Evidence 0 0 Direct examination the plaintiffs attorney asks questions of the witnesses on the plaintiff s list Crossexamination the defendant s attorney may question that same witness Closing Arguments and Charging the Jury O 0 Closing argument each attorney sums up the case and tries to convince the jury that their version of the case is more compelling Charging the jury the judge gives them instructions on how to work through the process of coming to a factual decision in the case Preponderance of the evidence a standard used to decide a civil case whereby the jury is to favor one party when the evidence is of greater weight and more convincing than the evidence that is offered in opposition to it it is a substantially lower standard of proof than that used in a criminal case Deliberations and Verdict O O O O 0 After receiving the charge jurors move to a private room and engage in deliberations Verdict decision reached by the jury Hung jury if jury cannot agree on a verdict litigants must state the process al over again with a new jury Posttrial Motions and Appeals Losing party may try to convince the original judge that the verdict was awed Losing party may appeal to a higher court Collecting the Judgment Alternative Dispute Resolution Alternative dispute resolution the process by which disputes involving individuals or businesses are resolved outside of the federal or state court system through the help of third parties Potential advantages of ADR over litigation 0 Costs 0 Preserving the business relationship 0 Time 0 Expertise 0 Privacy Informal ADR Involves the parties negotiating facetoface or through intermediaries to arrive at a mutually agreeable solution without the use of a formal process Can take the form of o Settlement agreement one party agrees to a payment in exchange for the other party s promise not to sue 0 Agreement to cancel a contract or to revise an existing contract to better re ect the parties obligations and needs Formal ADR Arbitration 0 An individual arbitrator conducts a hearing between the parties in the dispute 0 Similar to a court setting but less formal 0 Apply for arbitrator through ADR agency 0 Legally Mandated Arbitration most states have a requirement that certain civil lawsuits go through an arbitration hearing before the case proceeds to trial I To encourage parties to settle before trial I Each side is able to present the case to a neutral party and the arbitrator s decision can be used as a starting point for settlement negotiations 0 Federal Arbitration Act FAA statute in which Congress endorsed the use of arbitration as the preferred dispute resolution method in matters governed by federal law 0 Primary difference between arbitration and other methods of ADR is that it provides the parties with a decision on who prevails in the dispute and any monetary award Mediation o Becoming increasingly common as a costef cient form of dispute resolution 0 Relatively informal and does not require as much time or preparation as arbitration o In mediation no decision is rendered and if the parties do not reach an agreement they must attempt to resolve their dispute using another method 0 Goal of require mediation is to allow the parties the opportunity to settle the case Expert Evaluation 0 Expert evaluation an attractive alternative for parties involved in a business dispute where the issues are somewhat complex and are related to the intricacies of a certain industry or profession evaluation by an independent expert who recommends a settlement I Reviews documents and evidence provided by each party that give a full description of the events and circumstances leading to the claim and the resulting loss Other Forms of ADR O Medarb hybrid of mediation and arbitration both parties first submit to mediation for a set period of time if this fails the process then moves to binding arbitration Summary iury trials used primarily in federal courts but occasionally used in state courts when there are complex issues to be litigated I An abbreviated half to fullday trial is conducted before a jury usually after discovery has been completed Minitrial a condensed version of the case is presented to the top management from both sides I Primary purpose is to allow the management from both sides to see and hear the acts and arguments hopefully enabling them to engage in more fruitful negotiations and thus avoid litigation


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