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“We’re the jury. Dread our fury!”
William S. Gilbert
I. Teacher to Teacher Dialogue
of time reviewing the growing trend towards alternative dispute resolution (ADR) mechanisms. I
illustrate the key identifying features of each method. I use both personal experience examples, as
well as local statutory enactments, to help illustrate the growing trends towards ADR.
If none of these out-of-court methods are feasible, proceed to itemize the key steps used in a
inappropriate, or personal in nature.
II. Chapter Objectives
1. Describe the pretrial litigation process.
2. Describe how a case proceeds through trial.
3. Describe how a trial court decision is appealed.
resolution.
5. Describe e-courts and e-dispute resolution.
III. Key Question Checklist
Does the dispute or controversy lend itself to out-of-court resolution?
JUDICIAL, ALTERNATIVE,
AND E-DISPUTE RESOLUTION
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If the dispute or controversy needs to be resolved in a court of law, which court has
jurisdiction?
IV. Text Materials
One objective of this chapter is to familiarize students with the court trial sequence.
Litigation is the process of bringing, maintaining, and defending lawsuits. Because it is often
Pretrial Litigation Process
The pretrial litigation process can be divided into the following major phases: pleadings,
Pleadings
The paperwork filed to initiate and respond to a lawsuit is known as the pleadings. These include
Complaints and Summons – To initiate a lawsuit, the party who is suing (the plaintiff) must file
Answer – The defendant, the party who is being sued, must file an answer to the plaintiff’s
complaint.
Cross-Complaint and Reply – A defendant who believes that he or she has been injured by the
Intervention and Consolidation – If other persons have an interest in a lawsuit, they may
intervene and become parties to the lawsuit. This is called intervention. If several plaintiffs have
Class Action – A class action occurs when a group of plaintiffs collectively bring a lawsuit
against a defendant.
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Case 3.1 Class Action: Matamoros v. Starbucks Corporation
Circuit
Facts: Starbucks has certain categories of employees who have rights to tips. Other categories
of employees have management duties and do not have rights to tips. In Massachusetts, by
statute.
manner.
Statute of Limitations – This statutory period during which the plaintiff must file his lawsuit or
lose the right to sue.
Discovery
Deposition – A deposition is oral testimony given by a party or witness prior to trial. The person
giving a deposition is called the deponent.
Interrogatories – Interrogatories are written questions submitted by one party to a lawsuit to
another party.
Physical or Mental Examination – In cases that concern the physical or mental condition of a
party, a court can order the party to submit to certain physical or mental examinations to
determine the extent of the alleged injuries.
Case 3.2 Discovery: Averyt v. Wal-Mart Stores, Inc.
upheld an $11M judgment in favor of the plaintiff.
Ethics Questions: It is possible Walmart purposefully did not disclose evidence of the grease
spill to the plaintiff. Colorado is also a liberal jurisdiction and Walmart’s reputation for handling
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Court.
Pretrial Motions
Motion for Judgment on the Pleadings – A motion for judgment on the pleadings can be made
by either party, once the pleadings are complete. This motion alleges that if all the facts presented
in the pleadings are true, the party making the motion would win the lawsuit when the proper law
is applied to these facts.
undisputed facts and decide the case.
Case 3.3 Summary Judgment: Murphy v. McDonald’s Restaurants of Ohio
2010 Ohio App. Lexis 402 (2010), Court of Appeals of Ohio
Facts: Murphy slipped on ice in a McDonald’s parking lot. McDonalds moved for summary
Issue: Was summary judgment granted properly?
Decision: Yes.
Ethics Questions: In granting summary judgment to McDonalds, the judge did so because it is a
part of nature in the winter to have snow and ice on certain portions of a business’ premises.
McDonalds had collected the snow and ice in a particular area and did plow. It was not negligent
Settlement Conference
Many courts require that the parties appear for a pretrial hearing known as a settlement
conference in order to identify relevant issues and attempt settlement.
Contemporary Environment: Cost-Benefit Analysis of a Lawsuit
Plaintiffs should always perform a cost-benefit analysis before filing a lawsuit; taking into
Trial
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Jury Selection – Jury selection is made through a process called voir dire, where lawyers for
both sides and the sitting judge question prospective jurors to determine potential biases that
would eliminate them from being seated on the jury.
and legal issues of the case.
The Plaintiff’s Case – The plaintiffs present their case first and bear the burden of proof. They
complaint.
Rebuttal and Rejoinder – After the defendant’s case, the plaintiff’s attorney may call witnesses
arguments.
Jury Instructions, Deliberation, and Verdict – The closing arguments are followed by the
judge reading the jury instructions. The jury retires to deliberate and then returns their verdict.
Appeal
In a civil trial, either party can file a timely appeal once a final judgment is entered. In fact, both
parties may file an appeal. The petitioner or appellant files the appeal against the appellee, or
brief.
Case 3.4 Appeal: Cavazos, Acting Warden v. Smith
132 S.Ct. 2, 2011 U.S. Lexis 7603 (2011), Supreme Court of the United States
Facts: A grandmother was accused of shaking her grandson to death and was charged with
jury?
Decision: The US Supreme Court overturned the Ninth Circuit.
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International Law: British Legal System
English law is based on common law, that is, law made by judges who decide cases by applying
legal precedent established in prior cases (stare decisis) and their common sense. The court
Alternative Dispute Resolution
One solution to the expense of litigation in terms of both time and money is alternative dispute
resolution.
culminate in a settlement agreement.
Arbitration – An impartial third party hears evidence and testimony and decides the dispute in
Landmark Law: Federal Arbitration Act
Enacted in 1925, this act provides that commercial agreements calling for arbitration are valid,
irrevocable, and enforceable.
Case 3.5 Arbitration: Nitro-Lift Technologies, LLC v. Howard
133 S.Ct. 500, 2012 U.S. Lexis 8897 (2012), Supreme Court of the United States
Facts: Two Nitro employees had a non-compete agreement, which pertained to working for the
Decision: Yes.
Ethics Questions: The plaintiffs want the benefit of publicity of their case, to be heard before a