Environmental Engineering Chapter 3 Then Ask Two Students Read This Dialogue

Chapter 3

DISPUTE RESOLUTION

1

Suggested Additional Assignments

Research: Class Actions

Students should find a current article on a pending class action against a large pharmaceutical, tobacco,

automobile, or other company. Students should answer these questions:

1. What is a class action?

2. How long has this class action been going?

Voir Dire

Divide students into three groups, and then each group into two sides. Each group is assigned a high

profile case: the O.J. Simpson murder case, the Martha Stewart obstruction of justice case, and the

Michael Jackson child abuse case (the professor may need to educate the students about these cases). One

side in each group is the prosecution and the other side is the defense. Ask each side to explain to the

class what type of juror it thinks would be most beneficial to its side, and why.

Martha Stewart was found guilty in March 2004 of conspiracy, obstruction of an agency proceeding, and

Chapter Overview

Chapter Theme

The process of litigation may influence the outcome of a dispute as strongly as the substantive law. That

is all the more reason to use preventive law, and stay out of court.

Quote of the Day

“Facts are ventriloquists’ dummies. Sitting on a wise man’s knee they may be made to utter words of

wisdom; elsewhere, they say nothing, or talk nonsense, or indulge in sheer diabolism.” –Aldous Huxley

(1894-1963), British author, Time Must Have a Stop (1944).

2 Unit 1 The Legal Environment

Proof versus Right

Students often confuse whether a person can prove her case at trial with whether she suffered a legal

wrong and has a cause of action. For instance, suppose students are considering a simple oral contract, in

which Manny offers David $50 to shovel Manny’s driveway, and David accepts. There are no witnesses.

Three Fundamental Areas of Law

The case used in this chapter is a fictionalized version of several real cases based on double indemnity

insurance policies. In this chapter we follow Beth’s dispute with Coastal from initial interview through

appeal, using it to examine three fundamental areas of law: the structure of our court systems, and civil

lawsuits, and alternative dispute resolution.

Litigation vs. Alternative Dispute Resolution

There are two methods of dispute resolution: litigation and alternative dispute resolution. Litigation refers

to lawsuits, the process of filing claims in court, and ultimately going to trial. Alternative dispute

Court Systems

The United States has over 50 systems of courts. One nationwide system of federal courts serves the

entire country. In addition, each individual state – such as Texas, California, and Florida – has its court

State Courts

The typical state court system has a single superior court over the lower trial and appellate courts. A few

states have two courts at the top level, each with a different purpose.

Trial courts

Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court

decisions.

Jurisdiction

A court’s power to hear a case.

Subject matter jurisdiction means that a court has the authority to hear a particular type of case.

Chapter 3 Dispute Resolution 3

Personal jurisdiction is the legal authority to require the defendant to stand trial, pay judgments, and the

like. A long-arm statute gives a state jurisdiction over non-residents in certain situations.

Landmark Case: International Shoe Co. v. State of Washington

3

Facts: Although International Shoe manufactured footwear only in St. Louis, Missouri, it sold its

When the State of Washington sought contributions to the state’s unemployment fund, International

Shoe refused to pay. Washington sued. The company argued that it was not engaged in business in the

state, and, therefore, that Washington courts had no jurisdiction over it.

The Supreme Court of Washington ruled that International Shoe did have sufficient contacts with the

state to justify a lawsuit there. International Shoe appealed to the United States Supreme Court.

Issue: Did International Shoe have sufficient minimum contacts in the state of Washington to permit

jurisdiction there?

Excerpts from Chief Justice Stone’s Decision: Appellant insists that its activities within the state were

[D]ue process requires that [a defendant] have certain minimum contacts with it such that the

maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Since the corporate personality is a fiction, its “presence” without can be manifested only by those

activities of the corporation’s agent within the state which courts will deem to be sufficient to satisfy the

demands of due process.

“Presence” in the state in this sense has never been doubted when the activities of the corporation

there have not only been continuous and systematic, but also give rise to the liabilities sued on, even

Applying these standards, the activities carried on in behalf of appellant in the State of Washington

were neither irregular nor casual. They were systematic and continuous throughout the years in question.

They resulted in a large volume of interstate business, in the course of which appellant received the

benefits and protection of the laws of the state, including the right to resort to the courts for the

3

326 U.S. 310 Supreme Court of the United States, 1945

4 Unit 1 The Legal Environment

Question: What part of the U.S. Constitution requires minimum contacts?

Question: Did the Court find that International Shoe conducted regular business activities in

Washington?

Appellate Courts

Generally accept the facts given to them by trial courts and review the trial record to see if the court made

errors of law.

Court of Appeals

The party who loses at the trial court may appeal to the intermediate court of appeals. This court allows

argument, usually before a panel of three judges.

State Supreme Court

This is the highest court in the state, and it accepts some appeals from the court of appeals. In most states,

Federal Courts

As discussed in Chapter 1, federal courts are established by the United States Constitution, which limits

what kinds of cases can be brought in any federal court. Two kinds of civil lawsuits are permitted in

federal court: federal question cases and diversity cases.

Federal Question Cases

A claim based on the United States Constitution, a federal statute, or a federal treaty is called a federal

question case.4 Federal courts have jurisdiction over these cases.

Diversity Cases

Even if no federal law is at issue, federal courts have diversity jurisdiction when (1) the plaintiff and

Trial Courts

United States District Court

This is the primary trial court in the federal system. The nation is divided into about 94 districts, and each

has a district court.

Other Trial Courts

Judges

The President of the United States nominates all federal court judges, from district court to Supreme

Court. The nominees must be confirmed by the Senate.

Appellate Courts

United States Courts of Appeals

These courts are the intermediate courts of appeals. They are divided into “circuits,” which are

Chapter 3 Dispute Resolution 5

United States Supreme Court

This is the highest court in the country. The Supreme Court has the power to hear appeals in any federal

case and in certain cases that began in state courts. Generally, it is up to the Court whether or not it will

accept a case.

Role Play: Finding Facts versus Reading Transcripts

Students must understand the critical differences between trial and appellate courts, between hearing

evidence and finding facts on the one hand, and determining whether a lower court applied the law

correctly on the other. To demonstrate, use the role play script later in this manual. Can the class

Litigation

Pleadings

The documents that begin a lawsuit are called the pleadings. These consist of the complaint, the answer,

and sometimes a reply. In addition to the answer, there may be a counter-claim or a class-action suit may

Discovery: Missing Facts

Discovery in civil litigation is rarely the subject matter for legal dramas on television or in the movies, so

the discussion of discovery will be unfamiliar to many students. Students should understand its role in

our adversary system as defined in the text: “the best way to bring out the truth is for the two contesting

sides to present the strongest case possible to a neutral factfinder.” The purpose of discovery is to enable

the parties to understand their opponent’s case as clearly as possible in order to encourage settlement—by

allowing objective appraisal of the strengths and weaknesses of each side—and to allow a trial to uncover

all relevant facts with a minimum of surprises. To emphasize these points, students might consider the

case of Smiles v Coastal Insurance Company that is woven throughout the chapter.

Question: In Smiles v Coastal Insurance Company, what critical discovery ruling helps Coastal

Question: Why is the ruling so important?

Answer: It ends the plaintiff’s hope for a class action. Without discovery on other claims that the

Question: What critical ruling helps plaintiff Beth Smiles?

Answer: The judge reduces Coastal’s depositions to only ten. Coastal’s attorney decides not to

Question: If Coastal learned of Bergson’s story after it settled the case or lost at trial could it re-open

the lawsuit on the grounds it had new information?

6 Unit 1 The Legal Environment

Case: Stinton v. Robin’s Wood, Inc.

4

Facts: Ethel Flanzraich, 78 years old, slipped and fell on property owned by Robin’s Wood and broke

her left arm and left leg. Flanzraich sued, claiming Robin’s Wood employee, Anthony Monforte, had

negligently painted the stairs on which she fell. Robin’s Wood denied the allegations.

The parties agreed to hold depositions on August 4. Flanzraich appeared for the deposition but

On August 18, Flanzraich moved to strike Robin’s Wood’s answer, meaning she would win by

default. The company argued that it had made diligent efforts to locate Monforte and force him to appear,

but that Monforte no longer worked for Robin’s Wood. The trial judge granted the motion to strike. The

only remaining issue was damages: Robin’s Wood owed $22,631 for medical expenses, $150,000 for past

pain and suffering, and $300,000 for future pain and suffering. Robin’s Wood appealed.

Issue: Did the trial court abuse its discretion by striking Robin’s Wood’s answer?

Holding: No. The court found no merit to Robin’s Wood’s claim that the trial judge abused his discretion in

striking its answers. Although cases should be heard on the merits whenever possible, a court may invoke a

drastic remedy such as striking an answer when a parties’ failure to comply with discovery is willful.

The willful nature of Robin’s Wood’s conduct can be inferred from the company’s failure to comply with

Question: What standard does the appellate court use to review the trial court’s striking of Robin’s

Wood’s answer?

It does not ask whether it would have itself stricken the answer on the facts of the case.

Question: Why doesn’t the appellate court ask itself that question?

Answer: Our legal system grants considerable discretion to trial court judges. It is their job to

appellate court should be wary of overturning decisions.

Question: What is the result of striking Robin’s Wood’s answer?

Question: Is it fair that Robin’s Wood does not get a chance to defend itself based on the actions of

one employee?

Answer: Robin’s Wood’s loss was the result of more than just the actions of Monforte. Robin’s

Question: This is still a harsh result. Why didn’t the trial judge order Robin’s Wood to pay for the

costs of delay, or something else less drastic than striking its answer?

Chapter 3 Dispute Resolution 7

Answer: While the court might have opted for such a remedy, it did not. As noted above, it is not

Summary Judgment

Summary judgment can be difficult to grasp. It is important because many cases in the text are appellate

rulings on summary judgments entered by trial courts. Summary judgment makes the court focus on legal

questions, not factual disputes. If there are essential facts in dispute summary judgment is not

appropriate, and there must be a trial.

To illustrate, suppose that Bob and Susan meet at a church pancake breakfast, chat about Bob’s Ferrari,

and end up signing an agreement that Susan can buy it at the extraordinarily low price of $30,000. Bob

refuses to honor the agreement, claiming he was intoxicated when he signed. Susan has 35 witnesses who

swear that Bob was sober; Bob has only himself testifying that he was drunk.

Question: Susan moves for summary judgment. The ruling?

Answer: Summary judgment denied. The parties have a key factual dispute: whether Bob was

Question: Suppose Bob and Susan orally agree that she can buy the car for $30,000. Bob refuses to

honor the deal and she sues. Discovery indicates that Susan has 30 witnesses who will testify that the

parties orally agreed to the deal. Bob has five witnesses who will testify that the parties never even

orally agreed. Bob moves for summary judgment, based on the statute of frauds provision of the

Uniform Commercial Code: this kind of contract (for the sale of goods over $500) must be in writing

to be enforceable. The ruling?

Answer: Summary judgment granted. There is no need to decide which of the witnesses is telling

Case: Jones v. Clinton

5

Facts: In 1991, Bill Clinton was Governor of Arkansas. Paula Jones worked for a state agency, the

Arkansas Industrial Development Commission (AIDC). When Clinton became President, Jones sued

him, claiming that he had sexually harassed her. She alleged that, in May 1991, the Governor arranged

1993, when she moved to California because of her husband’s job transfer. President Clinton denied all

of the allegations. He also filed for summary judgment, claiming that Jones had not alleged facts that

justified a trial. Jones opposed the motion for summary judgment.

Issue: Did Jones make out a claim of sexual harassment?

Holding: Summary judgment for Clinton. Jones had failed to demonstrate any tangible job detriment.

She had never been downgraded in her job, and in fact had been reclassified upward. She received every

5

990 F. Supp. 657, 1998 U.S. Dist. LEXIS 3902 United States District Court East. Dist Ark. 1998

8 Unit 1 The Legal Environment

Question: The court seems to regard Jones’s allegations as trivial. In fact, hasn’t she alleged

disgusting behavior by her employer? How can the court regard her claims so lightly?

Answer: This gets to the essence of summary judgment. The judge does indicate that the alleged

Question: What is the judge obligated to decide?

Answer: Whether the alleged behavior constituted sexual harassment. Nothing more.

Question: Doesn’t summary judgment mean that there will be no trial?

Question: How can a judge decide whether there was sexual harassment without holding a trial? We

do not know whether Clinton did these things or not.

Answer: Summary judgment means that it does not matter whether he did them, because even if did,

sexual harassment.

Question: What is missing from Jones’s allegations?

Answer: A claim of a significant job loss. If she had claimed that following the alleged encounter

Trial

Adversary System

Our system of justice assumes that the best way to bring out the truth is for both sides to “go at” the

various witnesses, enabling a neutral factfinder (judge or jury) to detect the truth. A full demonstration of

examination and cross-examination in the classroom may take up too much class time. The following

exercise permits an interesting glimpse at one vital part of the process.

Role Play: Who Is Telling the Truth?

Have a dozen students (the jury) leave the room. Then ask two students to read this dialogue:

Jack: So, Kate, I understand you’re thinking of hiring a computer consultant for your travel business?

Kate: Yeah, we probably need somebody. It’s beyond us. We want someone to come in, give some

advice on systems, software, all that stuff.

Jack has now sued Kate, claiming that they had a deal for $17,500. Kate claims she never agreed to hire

him. Prepare six students to “testify” to the jury (without any lawyers). They will simply make ad-libbed

statements, but some will be lies. Jack will start by explaining the conversation; he will accurately

describe the beginning but will conclude with a lie, saying that they made a firm deal for $17,500. Kate

Chapter 3 Dispute Resolution 9

Voir Dire

If students completed the Voir Dire research assignment, now would be a good time to discuss their

conclusions as to whom they would want on a jury and why.

Question: When impaneling a jury, lawyer cannot take race, gender, ethnicity, and religion into

account. What are some characteristics, other than race, gender, ethnicity, and religion, which might

be important when impaneling a jury for the examples given?

Answer: Some possible answers: O.J. Simpson: whether potential jurors are football fans; whether

During voir dire, the court’s goal is to select an impartial panel; each lawyer, by contrast, is striving to

obtain the most favorable jury possible.

Question: Is it good to allow lawyers to challenge jurors?

Answer: The theory behind voir dire is that it will result in an unbiased jury and the fairest possible

Question: What is the important difference between challenges for cause and peremptory

challenges?

Answer: A challenge for cause is based on bias. A judge will allow a challenge for cause only when

Question: The British developed the jury, and voir dire, but over the past several decades they have

nearly eliminated both. In Britain, there are no juries in any civil case except one of libel or police

misconduct. In over 90 percent of criminal trials, there are also no juries. In the few cases that do

include a jury, voir dire is extremely brief. A judge will typically ask potential jurors if they know or

are related to either party, or perhaps if they own stock in a company that is involved. There are no

other questions from the bench and none at all from the lawyers. In most cases, this results in the first

12 people being seated as jurors. Is this better or worse than the American system?

Answer: It is certainly faster. In complex American trials, it may take several days to impanel a

Case: Pereda v. Parajon

6

Facts: Maria Parajon sued Diana Pereda for injuring her in a car accident. During voir dire, Parajon’s

lawyer asked potential jurors: “Is there anybody sitting on this panel now that has ever been under the

care of a physician for personal injuries, whether you had a lawsuit or not? In other words, you may not

have had any sort of lawsuit, but you slipped and fell- you had any accidents?”

10 Unit 1 The Legal Environment

Several prospective jurors raised their hands; however, Lisa Berg, a lawyer, did not. Berg and others

were seated as jurors and awarded Parajon $450,000 for medical damages and pain and suffering.

After the trial, during questioning by the judge, Berg admitted that she had been injured in a car

accident, sued, and settled out of court for $4,000.

Parajon moved for a new trial but was denied. Parajon appealed.

Issue: Is Parajon entitled to a new trial based on Berg’s failure to disclose her own personal injury

lawsuit?

Holding: Yes. According to the court, a juror’s nondisclosure warrants a new trial if (1) the information

is relevant and material to jury service in the case; (2) the juror concealed the information during

questioning; and (3) the failure to disclose the information was not attributable to the complaining party’s

Question: If Parajon won the trial and was awarded $450,000 why would she move for a new trial?

Answer: In this case, Parajon was sitting on a bench at a bus stop when Pereda, who was driving a van

Question: Does that mean because one juror did not answer a question truthfully, both parties have to

pay to try the case again?

Question: Is there anything the parties can do to the juror? Can they sue her for lying during voir dire?

Answer: The parties cannot sue Berg for lying during voir dire. But, potential jurors are under oath

Appeals

Additional Case: Hernandez v Montville Township Board of Education

7

Facts: Victor Hernandez had worked for more than 20 years as a custodian at a public power plant and

had received training in health and safety rules from the Occupational Safety and Health Administration

(OSHA). He took a second job as night custodian at an elementary school. Shortly after he started work,

the school board fired him for alleged poor job performance. Hernandez sued, claiming that the board

7

354 N.J.Super.467, 808 A.2d 128, Superior Court of New Jersey, Appellate Division, 2002

Chapter 3 Dispute Resolution 11

evidence adduced by anyone in the case that these things that he’s complaining about ever occurred. I

didn’t believe anything [plaintiff] said. [This is] trivialization beyond belief.”

Hernandez appealed.

Issue: Did the trial court err by rejecting punitive damages, or by granting the JNOV?

Holding: Judgment NOV reversed and jury’s verdict on compensatory damages reinstated. Plaintiff

knew there were regulations and policies against exposing schoolchildren to urine and feces and against

There was sufficient evidence to submit the punitive damage claim to the jury. Based upon the

compensatory damage verdict, it appears that the jury agreed.

Question: What did the jury think about Hernandez’s claim?

Question: Then why did the trial judge conclude that Hernandez was entitled to nothing?

no evidence that he reported health and safety violations to his supervisors.

Question: Why does a trial judge have the power to ignore a jury’s decision?

Answer: The rules of civil procedure give a trial judge to enter a judgment NOV, or a judgment

Question: Did the jury’s verdict in this case fail to rest on the evidence?

Answer: Not according to the appellate court. It stated that the trial judge ignored the standard for

viewing evidence in a judgment NOV?

Question: What is that standard?

Question: Isn’t this appeals court substituting its own judgment for that of the trial judge?

Alternative Dispute Resolution

Types of ADR

Negotiation

The parties discuss the issues directly or through lawyers; the parties remain in control of the outcome.

Mediation

A neutral third party guides the disputing parties toward a voluntary settlement. The use of mediation

may be court-ordered or voluntary.

Arbitration

A neutral third party guides the disputing parties to discuss their cases, then renders a decision which is

binding on both parties. The use of arbitration may be court-ordered or voluntary.

12 Unit 1 The Legal Environment

Example: Mandatory Arbitration

This exercise examines the risks and benefits of mandatory alternative dispute resolution (ADR) in an

employment contract for a hypothetical company, FacTree. Students should consider these facts and

discuss the benefits and risks for the company and for employees.

From the Company’s Perspective:

• Quicker decisions. Managers will spend less time in discovery and trial preparation. Employees

may have less ability to sustain vexatious litigation (though they may be able to file such claims

even more easily).

From the Employees‘ Perspective:

• Reduced cost of bringing claims. In a lawsuit, the plaintiff must first convince an attorney to

accept the case on a contingent-fee basis, or else pay a large hourly rate. With ADR, the

employee can either perform the work herself, or hire a lawyer whose hours will be greatly

reduced.

Multiple Choice Questions

1. The burden of proof in a civil trial is to prove a case _____________________. The burden of proof

rests with the ____________________.

(a) beyond a reasonable doubt; plaintiff

(b) by a preponderance of the evidence; plaintiff

(c) beyond a reasonable doubt; defendant

Chapter 3 Dispute Resolution 13

(d) by a preponderance of the evidence; defendant

2. Alice is suing Betty. After the discovery process, Alice believes that no relevant facts are in dispute,

and that there is no need for a trial. She should move for a…

(a) judgment on the pleadings

(b) directed verdict

(c) summary judgment

(d) JNOV

3. Glen lives in Illinois. He applies for a job with an Missouri company, and he is told, amazingly, that

the job is only open to a white applicant. He will now sue the Missouri company under the Civil

Rights Act, a federal statute. Can Glen sue in federal court?

(a) Yes, absolutely

(b) Yes, but only if he seeks damages of at least $75,000. Otherwise, he must sue in a state court.

(c) Yes, but only if the Missouri company agrees. Otherwise, he must sue in a state court.

(d) No, absolutely not. He must sue in a state court.

4. A default judgment can be entered if which of the following is true?

(a) A plaintiff presents her evidence at trial and clearly fails to meet her burden of proof

(b) A defendant loses a lawsuit and does not pay a judgment within 180 days.

(c) A defendant fails to file an answer to a plaintiff’s complaint on time

(d) A citizen fails to obey an order to appear for jury duty

5. Barry and Carl are next door neighbors. Barry’s dog digs under Carl’s fence and does $500 damage to

Carl’s garden. Barry refuses to pay for the damage, claiming that Carl’s cats “have been digging up

my yard for years.”

The two argue repeatedly, and the relationship turns frosty. Of the following choices, which has no

outside decision maker and is most likely to allow the neighbors to peacefully coexist after working

out the dispute?

(a) Trial

(b) Arbitration

(c) Mediation

14 Unit 1 The Legal Environment

Essay Questions

1. You plan to open a store in Chicago, specializing in rugs imported from Turkey. You will work with

a native Turk who will purchase and ship the rugs to your store. You are wise enough to insist on a

contract establishing the rights and obligations of both parties and would prefer an ADR clause. But

you do not want a clause that will alienate your overseas partner. What kind of ADR clause should

you include, and why?

Answer: Yes. Try blending ADR mechanisms. Have the ADR clause state that in the event of a

2. Which court(s) have jurisdiction as to each of these lawsuits – state or federal? Explain your reasoning

with each.

(a) Pat wants to sue his next-door neighbor, Dorothy, claiming that Dorothy promised to sell him the

house next door.

(b) Paula, who lives in New York City, wants to sue Dizzy Movie Theatres, whose principal place of

business is Dallas. She claims that while she was in Texas on holiday, she was injured by their

negligent maintenance of a stairway. She claims damages of $30,000.

(c) Phil lives in Tennessee. He wants to sue Dick, who lives in Ohio. Phil claims that Dick agreed to

sell him 3,000 acres of farmland in Ohio, worth over $2 million.

(d) Pete, incarcerated in a federal prison in Kansas, wants to sue the United States government. He

claims that his treatment by prison authorities violates three federal statutes.

Answer:

(a) The state trial court of general jurisdiction may hear the case. There is no federal court

3. British discovery practice differs from that in the United States. Most discovery in Britain concerns

documents. The lawyers for the two sides, called solicitors, must deliver to the opposing side a list of

all relevant documents in their possession. Each side may then request to look at and copy those it

wishes. Depositions are rare. What advantages and disadvantages are there to the British practice?

Answer: Discovery is more efficient in Britain, since the solicitors are honor-bound to notify of

Chapter 3 Dispute Resolution 15

4. Trial practice also is dramatically different in Britain. The parties’ solicitors do not go into court.

Courtroom work is done by different lawyers, called barristers. The barristers have very limited rights

to interview witnesses before trial. They know the substance of what each witness intends to say but

do not rehearse questions and answers, as in the United States. Which approach do you consider more

effective? More ethical? What is the purpose of a trial? Of pre-trial preparation?

Answer: The purpose of a trial is to learn the facts, and apply the law to them. Because the Anglo-

American trial system is adversarial, both sides certainly need some opportunity to prepare.

series of questions.

5. Claus Scherer worked for Rockwell International and was paid over $300,000 per year. Rockwell fired

Scherer for alleged sexual harassment of several workers, including his secretary, Terry Pendy.

Scherer sued in United States District Court, alleging that Rockwell’s real motive in firing him was

his high salary.

Rockwell moved for summary judgment, offering deposition transcripts of various employees.

Pendy’s deposition detailed instances of harassment, including comments about her body, instances

of unwelcome touching, and discussions of extramarital affairs. Another deposition, from a Rockwell

employee who investigated the allegations, included complaints by other employees as to Scherer’s

harassment. In his own deposition, which he offered to oppose summary judgment, Scherer testified

that he could not recall the incidents alleged by Pendy and others. He denied generally that he had

sexually harassed anyone. The district court granted summary judgment for Rockwell. Was its ruling

correct?

Answer: Yes. The court of appeals affirmed. Scherer v. Rockwell International Corp., 975 F.2d

Discussion Questions

1. In the Tony Caruso case described throughout this chapter, the defendant offers to settle the case as

several stages. Knowing what you do now about litigation, would you have accepted any of the

offers? If so, which ones? If not, why not?

16 Unit 1 The Legal Environment

2. The burden of proof in civil cases is fairly low. A plaintiff wins a lawsuit if he is 51% convincing, and

then he collects 100% of his damages. Is this result reasonable? Should a plaintiff in a civil case be

required to prove his case beyond a reasonable doubt? Or, if a plaintiff is only 51% convincing,

should he get only 51% of his damages?

3. Large numbers of employees have signed mandatory arbitration agreements in employment contracts.

Courts usually uphold these clauses. Imagine that you signed a contract with an arbitration

agreement, that the company later mistreated you, and that you could not sue in court. Would you be

upset? Or would you be relieved to go through the faster and cheaper process of arbitration?

4. Imagine a state law that allows for residents to sue “spammers” – those who send uninvited

commercial messages through email – for $30. One particularly prolific spammer sends messages to

hundreds of thousands of people.

John Smith, a lawyer, signs up 100,000 people to participate in a class action lawsuit, According to

the agreements with his many clients, Smith will keep 1/3 of any winnings. In the end, Smith wins a

$3,000,000 verdict and pockets $1,000,000. Each individual plaintiff receives a check for $20.

Is this a lawsuit reasonable use of the court’s resources? Why or why not?

5. Higher courts are reluctant to review a lower court’s factual findings. Should this be so? Would

appeals be more fair if appellate courts reviewed everything?

Chapter 3 Dispute Resolution 17