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Chapter 3
24
Mini-trial – The attorneys for both sides present their cases to the representatives of both of the
parties that have the authority to settle the case.
Fact-Finding – The parties hire a neutral third party to investigate the dispute and recommend a
settlement.
judgment.
Critical Legal Thinking Case
U.S. SUPREME COURT Class Action Waiver: AT&T Mobility LLC v. Concepcions
Facts: The Concepcions purchased AT&T services in California and they were given a free
unconscionable under California law. AT&T alleged that the Federal Arbitration Act (FAA)
preempted the California state law. The U.S. District Court and the U.S. Court of Appeals agreed
with the Concepcions, finding AT&T’s class action waiver unconscionable. AT&T appealed to
the U.S. Supreme Court.
Issue: Does the Federal Arbitration Act (FAA) preempt California’s law that outlaws class action
waivers?
Decision: Yes.
E-Courts and E-Dispute Resolution
E-Courts – Due to the Internet and other technologies, electronic courts, or e-courts, also referred
to as virtual courthouses, are substantially being used by courts. Technology allows for the
Digital Law: E-Dispute Resolution
Legal disputes are now often resolved using electronic dispute resolution, or e-dispute resolution.
Many ADR providers offer electronic arbitration, or e-arbitration services. Most of these services
Judicial, Alternative, and E-Dispute Resolution
25
In resolving disputes, the Dogan usually do not go to government courts. Instead, a council of
administers justice in the local area.
Question for students: Are there examples of local councils in the United States which may hear
V. Key Terms and Concepts
complaint.
Alternative dispute resolution (ADR)—Methods of resolving disputes other than
litigation.
Answer—The defendant’s written response to the plaintiff’s complaint that is filed with
the court and served on the plaintiff.
Appeal—The act of asking an appellate court to overturn a decision after the trial court’s
final judgment has been entered.
impartial third party to hear and decide the dispute.
Arbitrator—The neutral party in an arbitration.
Binding arbitration—The type of arbitration where the parties agree to be bound by an
arbitrator’s decision and remedy.
Burden of proof—Borne by the plaintiff to persuade the trier of fact of the merits of his
or her case.
bring a lawsuit against a defendant.
Class action waiver—When a consumer waives her right to join a common class of
plaintiffs in a lawsuit against a defendant.
Complaint—The document the plaintiff files with the court and serves on the defendant
to initiate a lawsuit.
lawsuit.
Cost-benefit analysis—Performed by both the plaintiff and defendant to determine
whether to bring or defend a lawsuit in court.
Cross-complainant—The defendant who files a cross-complaint against the plaintiff.
lawsuit.
Defendant—The party who is being sued.
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given under oath and is transcribed.
Direct examination—Examination carried out by the plaintiff’s attorney, during the
plaintiff’s case, after a witness has been sworn in.
Discovery—A legal process during which both parties engage in various activities to
discover facts of the case from the other party and witnesses prior to trial.
made by a judge if there is no jury, unless such finding is unsupported by the evidence or
Judgment notwithstanding the verdict—The overturning of a verdict by a court due to
bias or jury misconduct.
reach a verdict.
Jury instruction— Instructions that the judge gives to the jury that inform the jurors of the
law to be applied in the case.
Jury trial—A trial which involves a jury.
Litigation—The process of bringing, maintaining, and defending a lawsuit.
Mediation—A form of ADR in which the parties chose a neutral third party to act as the
mediator of the dispute.
Judicial, Alternative, and E-Dispute Resolution
27
and deposition testimony.
Negotiation—A procedure whereby the parties to a dispute engage in discussions and
bargaining to try to reach a voluntary settlement of their dispute.
Nonjudicial dispute resolution—The resolution of disputes outside of the court judicial
system.
court judgment is entered.
Opening brief—Filed by the appellant’s attorney; it sets forth legal research and other
information to support his or her contentions on appeal.
Opening statement—Remarks made by each counsel in a lawsuit at the beginning of the
trial before witness testimony is taken.
Physical or mental examination—A court may order another party to submit to a physical
or mental examination prior to trial.
Plaintiff—The party who files the lawsuit.
prior to trial.
Production of documents—Request by one party to another party to produce all
documents relevant to the case prior to the trial.
Rebuttal—After the defendant’s attorney has finished calling witnesses, the plaintiff’s
attorney can call witnesses and put forth evidence to rebut the defendant’s case.
Record—An account of court proceedings.
evidence to counter the rebuttal.
Remittitur—The judge’s decision to reduce the amount of monetary damages awarded by
the jury if he or she finds the jury to have been biased, emotional, or inflamed.
Sequester—The separation of the jury from family during the entire course of a trial
which is important or controversial.
jurisdiction over him or her.
Settlement agreement—An agreement that is voluntarily entered into by the parties to a
dispute that settles the dispute.
Statute of limitations—Statute that establishes the time period during which a lawsuit
the right to sue.
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dispute arises.
Summons—A court order directing the defendant to appear in court and answer the
complaint.
Trial briefs—Documents submitted by the parties’ attorneys to the judge that contain
written legal arguments which support for their side of the case.
Trier of fact—The jury in a jury trial; the judge when there is not a jury trial.
level.
Verdict—The decision reached by a jury after deliberation.
Voir dire—The process whereby the judge and attorneys ask prospective jurors questions
to determine whether they would be biased in their decisions or whether they would make
good jurors for a trial.
judgment.
