III. CIVIL DISPUTE RESOLUTION
The most prominent mechanism to settle disputes is judicial resolution,
governed by certain rules. Civil disputes are governed by the rules of civil
procedure, which we will discuss in the first part of this section. Criminal
cases are governed by the rules of criminal procedure, covered in Chapter
6. Dispute resolution by administrative agencies, which is also common, is
discussed in Chapter 5.
*** Chapter Outcome ***
List and explain the various stages of a civil proceeding..
A. CIVIL PROCEDURE
NOTE: See textbook for a hypothetical case which is taken to the highest court of review.
The Pleadings
A series of responsive, formal, written statements by each side to a lawsuit;
purpose of pleadings is to give notice and to establish the issues of fact and
law the parties dispute.
Complaint and Summons — The complaint is the initial pleading by the
plainti$ stating his case. The lawsuit begins when the county sheri$ serves
a summons and a copy of the complaint.
The summons is a written document, issued by the clerk, that gives notice
to the defendant that a suit has been brought against him. Service of the
summons establishes jurisdiction over the defendant.
Responses to Complaint — If the defendant fails to respond to the
summons and complaint, a default judgment will be entered against him.
Pretrial Procedure
Judgment on Pleadings — Either party may move for judgment on the
pleadings which requests the judge to make a final binding determination
as a matter of law whether the facts as alleged are su-cient to grant the
requested relief.
Discovery — is the pretrial exchange of information between opposing
parties to a lawsuit — includes (1) pretrial depositions consisting of sworn
testimony taken out of court; (2) sworn answers to written questions; (3)
production of documents and physical objects; (4) examination by a
physician of the physical condition of the opposing party; and (5)
admissions of facts set forth in a request for admissions.
CASE 3-3
PARKER v. TWENTIETH CENTURY–FOX CORP.
Supreme Court of California, 1970
3 Cal.3d 176, 89 Cal.Rptr. 737, 474 P.2d 689
http://scholar.google.com/scholar_case?
q=474+P.2d+689&hl=en&as_sdt=2,34&case=8204943341098207403&scilh=0
Burke, J.
Defendant Twentieth Century-Fox Film Corporation appeals from a summary judgment
granting to plaintiff [Shirley MacLaine Parker] the recovery of agreed compensation under
a written contract for her services as an actress in a motion picture. As will appear, we
have concluded that the trial court correctly ruled in plaintiff’s favor and that the judgment
should be affirmed.
Plaintiff is well known as an actress, and in the contract between plaintiff and
defendant is sometimes referred to as the “Artist.” Under the contract, dated August 6,
1965, plaintiff was to play the female lead in defendant’s contemplated production of a
motion picture entitled “Bloomer Girl.” The contract provided that defendant would pay
plaintiff a minimum “guaranteed compensation” of $53,571.42 per week for 14 weeks
“Big Country” was a dramatic “western type” movie. “Bloomer Girl” was to have been
filmed in California; “Big Country” was to be produced in Australia. Also, certain terms in
the proffered contract varied from those of the original. Plaintiff was given one week
within which to accept; she did not and the offer lapsed. Plaintiff then commenced this
action seeking recovery of the agreed guaranteed compensation.
The complaint sets forth two causes of action. The first is for money due under the
contract; the second, based upon the same allegations as the first, is for damages resulting
from defendant’s breach of contract. Defendant in its answer admits the existence and
validity of the contract, that plaintiff complied with all the conditions, covenants and
Plaintiff moved for summary judgment under Code of Civil Procedure section 437c, the
motion was granted, and summary judgment for $750,000 plus interest was entered in
plaintiff’s favor. This appeal by defendant followed.
The familiar rules are that the matter to be determined by the trial court on a motion for
summary judgment is whether facts have been presented which give rise to a triable factual
issue. The court may not pass upon the issue itself. Summary judgment is proper only if the
affidavits or declarations in support of the moving party would be sufficient to sustain a
judgment in his favor and his opponent does not by affidavit show facts sufficient to
present a triable issue of fact. The affidavits of the moving party are strictly construed, and
doubts as to the propriety of summary judgment should be resolved against granting the
motion. Such summary procedure is drastic and should be used with caution so that it does
not become a substitute for the open trial method of determining facts. The moving party
cannot depend upon allegations in his own pleadings to cure deficient affidavits, nor can
to be produced in the City of Los Angeles, whereas “Big Country” was a straight dramatic
role in a “Western type” story taking place in an opal mine in Australia, demonstrates the
difference in kind between the two employments; the female lead as a dramatic actress in a
western style motion picture can by no stretch of imagination be considered the equivalent
of or substantially similar to the lead in a song-and-dance production.
Trial
The U.S. Constitution guarantees the right to a jury trial in federal civil
cases involving more than twenty dollars, and nearly every state
constitution provides a similar right. The parties may choose not to have a
trial by jury. The jury determines questions of fact, and the judge
determines issues of law. When there is no jury, the judge serves both
functions.
Jury Selection — As the parties’ attorneys (or in some courts, the judge)
examine the potential jurors, each party can prevent prospective jurors
from serving on the basis of potential bias (called challenges for cause).
Each party also has a limited number of peremptory challenges for which
no cause is required to disqualify a prospective juror. (The Supreme Court
ruled that the Constitution prohibits juror discrimi-nation based on race or
gender.) The process of examination of jurors is called voir dire (vwar
deer).
Conduct of Trial — Both attorneys make an opening statement about
the facts that they expect to prove. The plainti$ and his witnesses then
testify on direct examination by the plainti$’s attorney. Each is subject to
cross-examination by the defense.
is so clear that reasonable persons could not di$er about the outcome of
the case.
If these motions are denied, then the attorneys make closing statements
to the jury.
Jury Instructions/Verdict — The jury receives jury instructions and then
deliberates to reach a general verdict. The judge then applies the law to
these findings and renders a judgment.
Motions Challenging Verdict — The unsuccessful party has two options
at this point (before appeal): A motion for a new trial may be granted if
(1) the judge committed prejudicial error during the trial, (2) the verdict is
against the weight of the evidence, (3) the damages are excessive, or (4)
Appeal
The purpose of an appeal is to determine whether the trial court
committed prejudicial error. Generally, an appellate court reviews only
errors of law such as the judge’s decisions to admit or exclude evidence;
the judge’s instructions to the jury; and the judge’s actions in denying or
granting various motions. The appellate court does not rehear any
evidence or redetermine the facts. It decides the case on the records,
abstracts, and briefs.
Enforcement
If the defendant does not immediately pay the judgment, the task of
enforcement remains. The clerk issues a writ of execution demanding
payment of the judgment, which is served by the sheri$ on the defendant.
NOTE: See Figure 3-7 for the various stages in civil procedure.
*** Chapter Outcome ***
Compare and contrast litigation, arbitration, conciliation, and mediation.
A. ALTERNATIVE DISPUTE RESOLUTION
Because litigation is complex, time-consuming and expensive, several
nonjudicial methods of dealing with disputes have developed. The most
important of these alternatives to litigation is arbitration. Others include
conciliation, mediation, and “mini-trials.” Alternative dispute resolution
methods are especially suitable where privacy, speed, preservation of
continuing relations, and control over the process are important to the
parties.
Arbitration
A nonjudicial proceeding where a neutral third party renders a binding
decision. The parties may be able to select an arbitrator with special
expertise in the subject of the dispute.
Types of Arbitration – There are two basic types of arbitration: consensual
(which is more common) and compulsory.
a. Consensual arbitration occurs when parties to a dispute agree to
submit to arbitration.
b. Compulsory arbitration is required by statute for specific types of
disputes such as those involving public employees like police o-cers
or fire fighters.
Procedure – The procedure is usually specified by the parties’ agreement.
The decision of the arbitrator, called an award, is binding on the parties, but
may be subject to limited judicial review if: (1) the award was procured by
corruption, fraud, or other undue means; (2) the arbitrators were partial or
International Arbitration – The United Nations Committee on
International Trade Law and the International Chamber of Commerce have
set forth rules on arbitration which are usually followed. Some states have
specific laws governing international arbitration.
Court Annexed Arbitration – A non-binding form of arbitration, often used
in medical malpractice suits, which is sometimes ordered by the court
before allowing a case to come to trial.
CASE 3-4
NITRO-LIFT TECHNOLOGIES, LLC v. HOWARD
Supreme Court of the United States, 2012
568 US __, 133 S.Ct. 500, 184 L.Ed.2d 328
http://scholar.google.com/scholar_case?q=133+S.Ct.
+500&hl=en&as_sdt=4,60&as_ylo=2012&case=12798986269666351327&scilh=0
Per Curiam
State courts rather than federal courts are most frequently called upon
to apply the Federal Arbitration Act (FAA), [citation], including the Act’s
national policy favoring arbitration. It is a matter of great importance,
therefore, that state supreme courts adhere to a correct interpretation of
the legislation. * * *
This dispute arises from a contract between petitioner Nitro-Lift
Technologies, L.L.C., and two of its former employees. Nitro-Lift contracts
with operators of oil and gas wells to provide services that enhance
production. Respondents Eddie Lee Howard and Shane D. Schneider
entered a confidentiality and noncompetition agreement with Nitro-Lift
that contained the following arbitration clause:
“‘Any dispute, di$erence or unresolved question between Nitro-Lift
and the Employee (collectively the “Disputing Parties”) shall be
settled by arbitration by a single arbitrator mutually agreeable to
After working for Nitro-Lift on wells in Oklahoma, Texas, and
Arkansas, respondents quit and began working for one of Nitro-Lift’s
competitors. Claiming that respondents had breached their
noncompetition agreements, Nitro-Lift served them with a demand for
arbitration. Respondents then filed suit in the District Court of Johnston
County, Oklahoma, asking the court to declare the noncompetition
agreements null and void and to enjoin their enforcement. The court
dismissed the complaint, finding that the contracts contained valid
arbitration clauses under which an arbitrator, and not the court, must
settle the parties’ disagreement.
The Oklahoma Supreme Court was not persuaded. It held that
despite the “[U.S.] Supreme Court cases on which the employers rely,”
the “existence of an arbitration agreement in an employment contract
does not prohibit judicial review of the underlying agreement.” [Citation.]
* * * Finding the arbitration clauses no obstacle to its review, the court
held that the noncompetition agreements were “void and unenforceable
as against Oklahoma’s public policy,” expressed in Okla. Stat., Tit. 15, §
219A. [Citation.]
The Oklahoma Supreme Court declared that its decision rests on
adequate and independent state grounds. [Citation.] If that were so, we
would have no jurisdiction over this case. [Citation.] It is not so, however,
because the court’s reliance on Oklahoma law was not “independent”—it
necessarily depended upon a rejection of the federal claim, which was
both “‘properly presented to’” and “‘addressed by’” the state court.
[Citation.] Nitro-Lift claimed that the arbitrator should decide the
contract’s validity, and raised a federal-law basis for that claim by
The Oklahoma Supreme Court’s decision disregards this Court’s
precedents on the FAA. That Act, which “declare[s] a national policy
favoring arbitration,” [citation], provides that a “written provision in … a
contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract or
transaction … shall be valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation of any
contract.” [Citation.] It is well settled that “the substantive law the Act
created [is] applicable in state and federal courts.” [Citations.] And when
This principle requires that the decision below be vacated. The trial
court found that the contract contained a valid arbitration clause, and
the Oklahoma Supreme Court did not hold otherwise. It nonetheless
assumed the arbitrator’s role by declaring the noncompetition
agreements null and void. The state court insisted that its “[own]
jurisprudence controls this issue” and permits review of a “contract
submitted to arbitration where one party assert[s] that the underlying
agreement [is] void and unenforceable.” [Citation.] But the Oklahoma
Supreme Court must abide by the FAA, which is “the supreme Law of the
The state court reasoned that Oklahoma’s statute “addressing the
validity of covenants not to compete, must govern over the more
general statute favoring arbitration.” [Citation.] But the ancient
interpretive principle that the specific governs the general (generalia
specialibus non derogant) applies only to conNict between laws of
equivalent dignity. Where a specific statute, for example, conNicts with a
general constitutional provision, the latter governs. And the same is true
where a specific state statute conNicts with a general federal statute.
For the foregoing reasons, the petition for certiorari is granted. The
judgment of the Supreme Court of Oklahoma is vacated, and the case is
remanded for proceedings not inconsistent with this opinion.
It is so ordered.
Conciliation
A nonbinding, informal process in which a third party (the conciliator)
selected by the parties attempts to help them reach a mutually acceptable
agreement by improving communications, explaining issues, scheduling
meetings, discussing di$erences of opinion, and serving as an intermediary.
Mediation
A process in which a third party (the mediator) selected by the disputants
helps them to reach a resolution of their disagreement. The mediator,
unlike the conciliator, proposes possible solutions for the parties to
consider, but like the conciliator he does not have the power to render a
binding decision.
Mini–Trial
Typically occurs when both disputants are corporations. Attorneys for the
two corporations conduct limited discovery and present evidence to a panel
of managers from each company as well as a neutral third party, who may
be a retired judge or other attorney.
Summary Jury Trial
A mock trial in which both parties present their cases to a jury, which issues
a non-binding verdict to be used in negotiations following the trial.