Chapter 6 – Civil Litigation and Its Alternatives

Litigation

• Litigation describes process of using courts to solve disputes
• Formal procedural rules govern the process
• Most states model procedural rules after federal system

Alternative Dispute Resolution (ADR)

• ADR refers to techniques for resolving conflicts other than full-scale litigation
• ADR tends to resolve conflicts more rapidly and at lesser cost than litigation
• Two most common forms of ADR are arbitration and mediation

Mediation

• Mediation process involves neutral third party mediator who assists parties in reaching mutually agreeable, voluntary compromise
• Cases suitable for mediation include those with possible future relationship and tort cases where  damages are in dispute

Arbitration

• Parties submit disagreement to a neutral third party arbitrator
• Arbitrator acts as judge
• Parties agree to accept arbitrator’s decision
• Arbitrator’s decision is binding
• Arbitration common in business

 What if ADR is not an option?

• Litigation!

Three Stages of Litigation

• Pretrial
• Trial
• Appeal

The Pretrial Stage

• A lawsuit officially begins when the plaintiff files a complaint with the clerk of the court. Before this can occur, the attorney must handle some preliminary matters:
  • whether a legal basis for the suit exists,
  • who should be sued,
  • in which court the case should be brought,
  • whether the statute of limitations has expired, and
  • whether any administrative agency must be consulted before filing suit.

Pretrial Stage

• Lawyer determines if there are legal grounds for the suit and if party bringing  suit has standing
• Lawyer selects court based on what courts  have subject matter jurisdiction and personal jurisdiction

  Pretrial Stage

• Lawyer determines whether action can be brought within time frame of statute of limitations
• Lawyer determines if there must be an exhaustion of administrative remedies before bringing suit

Class Action Suit

• A lawsuit brought by a person as a representative for a group of people who have been similarly injured.
• Before a class action can proceed, the court must certify that it meets two basic requirements:
  • (1) there must be questions of law or fact common to the class, and
  • (2) the claims of the named class members must be typical of the claims of the class as a whole.

Pleadings Stage

• Pleadings are documents filed with court to commence a lawsuit
• Plaintiff files complaint to begin a lawsuit
• Summons informs defendant of lawsuit and requirement to respond or lose suit
• Defendant replies to complaint by filing an answer

 More Pleadings

• Counterclaim is brought by defendant against a plaintiff
• Cross-claim is brought by one defendant against another defendant or by a  plaintiff against another plaintiff
• Third-party claim is brought by a defendant against someone in addition to who the plaintiff has already sued

Pretrial Motions to End Part or All of Litigation

• Rule 12 motions to dismiss brought by defendant
• Rule 56 motions for summary judgment brought by either party

Discovery Stage

• Interrogatories present questions to be answered under oath by opposing side
• Depositions  allows lawyers to question witnesses who must answer under oath
• Requests for admissions ask opposing party to either admit or deny statements regarding specific items 

Discovery

• Requests for documents ask party to produce documents in their possession
• Physical examinations can be requested where a party’s health is in issue 

Electronic Discovery

• The process of gaining information from the adverse party when that information is in electronic form, such as e-mails, voice mails, text messages, photographs, spreadsheets, and documents; also known as e-discovery.

Preservation of Potential Evidence

• Federal and state statutes sometimes require businesses to keep certain types of documents for a set period of time.
• Absent such a restriction, the documents being sought may be lost due to routine, good-faith operations of a document management system.
• There can be sanctions for willful alteration or destruction of ESI once there is a reasonable belief that litigation may arise.
• It is therefore incumbent upon attorneys to inform their clients that as soon as there is a reasonable belief that litigation may be involved, they must preserve all documents, even those they would otherwise routinely delete.

Spoilation

• Spoilation is the destruction or alteration of relevant documents.

Settlement or Pretrial Conference

• Settlement avoids necessity of trial
• Pretrial conferences allow attorneys and judge to meet informally prior to trial to  discuss case

The Trial

• Right to a Jury Trial varies depending on the court and action
• Jury Selection is first formal step in a jury trial
• Opening Statements outline theories of case, facts of case, and expected testimony

The Trial

• Presentation of Evidence is achieved through witness testimony and exhibits
• Closing arguments review and interpret evidence in light most favorable to party
• Jury Instructions explain the law to the jury in understandable terms

Trial

• Jury Deliberates once instructed by judge
• Verdict is rendered by jury
• Judgment is entered by court
• Post-Trial Motions are filed after the verdict is rendered

The Appeal

• Appeal brought after final judgment is entered
• Review limited to official record and specific appealable issues
• Oral Arguments can be heard by judges
• Published decision issued

Answers to Chapter 6 Questions

• What are the most common forms of ADR, and how do they differ from each other?
  • The Alternative Dispute Resolution is considered as an alternative approach to litigation.  The two most common forms are arbitration and mediation.  In mediation, a neutral third party assists the parties to the dispute to arrive at a compromise.  The mediator does not have the power to decide on the issue, rather he merely helps the parties arrive at a compromise.  On the other hand, the arbitrator has the power to render binding decisions even if the parties refuse to agree with the decision.  (Currier and Eimermann 130)
• What types of disputes are best suited to resolution through ADR? Which are least appropriate?
  • There are some disputes where ADR is the most appropriate solution.  For example, in divorce cases where parties have to deal with child visitations, mediation can be a suitable strategy to resolve the dispute because the parties will have to constantly deal with each other (Currier and Eimermann 130).  In some cases, however, when violence is involved, such as domestic violence, ADR is no longer an appropriate strategy.  For example, domestic violence should not be subjected to mediation.
• What do the proponents of ADR see as the advantages of ADR over traditional litigations?
  • The ADR is more advantageous compared to traditional litigation since it saves the parties a lot of time and money usually associated with court litigations.  Moreover, in general, it is believed that parties are more inclined to comply with a solution in which they were a part of compared to a court decision that is imposed on them (Currier and Eimermann 131). 
• What are the three basic stages of civil litigation?
  • There are three basic stages in civil litigation: the pretrial, trial and appeal.
• What issues have to be considered in deciding who should be sued?
  • In deciding the parties who should be sued, the primary factor is to determine who caused the harm/injury (Currier and Eimermann 137).  However, in many cases, the person who caused the harm may not have the money to pay for the damages to the injured plaintiff.  In these cases, it is advisable to include other parties to the suit to ensure that the injured party will be able to recover. 
• How does a class action lawsuit differ from one brought by and on behalf of one individual?
  • When an individual brings a suit there is only one plaintiff.  However, when it is a class action, there are several individuals who share the same interest filing the case against the defendant.  In these cases, the courts achieve efficiency and save a lot of time in the hearing of the case   because only one procedure is followed for hearing the case (Currier and Eimermann 136). 
• If someone says that a particular court does not have jurisdiction over a lawsuit, what is meant by that?
  • If a particular court does not have jurisdiction over a lawsuit, it simply means that the court does not have the power to hear and decide the case (Currier and Eimermann 137).  It is possible that the court does not have either a subject matter jurisdiction or personal jurisdiction. 
• What is the difference between subject matter jurisdiction and personal jurisdiction?
  • Subject matter jurisdiction pertains to the subject matter of the case or the type of law that is involved.  For instance, when a party files a case with a federal court, he has to make sure that there is a federal law involved otherwise, the case maybe dismissed for lack of subject matter jurisdiction (Currier and Eimermann 138).  On the other hand, personal jurisdiction refers to the power of the court to force a person to appear and to enforce judgments.  Generally only residents of the state are within the jurisdiction of the state court.  However, under the long arm statute, even non-residents may be subject to jurisdiction provided there is a minimum level of contact with the state.
• What is the purpose of requiring litigants to first exhaust their administrative remedies?
  • The doctrine of exhaustion of administrative remedies requires the parties to first settle the matter with the administrative agency before filing a suit in court.  The purpose of the requirement is to give the administrative agency the opportunity to resolve the issue before cases are filed in court (Currier and Eimermann 140)
• How does an administrative hearing differ from a civil trial?
  • An administrative hearing is different from a civil trial.  In an administrative hearing, there is no need for the parties to strictly adhere to the formal rules of evidence (Currier and Eimermann 140). 
• What is the purpose of each of the following pleadings:
  • the complaint – It is the pleading that initiates the lawsuit. The complaint contains the person whom the other party is suing, his cause of action and what he seeks the court to grant in his favor.
  • the answer – The Answer contains the defendant’s response to the allegations against him. It may contain a denial of the allegations in the complaint, or an admission of the allegations yet presenting affirmative defenses.  In some Answer, the defendant may bring forth the defects in the complaint against him. 
  • a counterclaim – In the Answer, the defendant may indicate his own claim against the defendant.
  • a cross claim – A cross claim is a claim by one of the defendants against a co-defendant.
  • a third-party claim – A third party claim is a claim by a defendant against a third party who is not included in the suit.
• Under the federal rules what three items must be included in a complaint?
  • Under the federal rules, there are three items that must be included in a complaint.  These are the allegations as to why the case falls within the jurisdiction of the court, the grounds that form the basis of the complaint, and the relief desired (Currier and Eimermann 141).
• What is a caption?
  • The caption is found in the heading section which states the names of the parties, name of the court, the title of the action, the docket file number, and the name of the pleading (Currier and Eimermann 141).
• Who must sign all pleadings? Why?
  • The pleading must be signed by the party who is filing it.  A complaint should be signed by the plaintiff.  The Answer should be signed by a defendant.
• 15 What is the purpose of a summons
  • The summons is a formal notice to the defendants named in the lawsuit informing them that a suit has been filed against them and what must be done in order to respond to the allegations named in the complaint (Currier and Eimermann 145). 
• What are the advantages of e-filing?
  • E-Filing helps the litigants save a lot of time and money in the filing of documents. At the same time, it frees the parties from issues involving space. 
• What is the danger to the defendant in failing to answer a complaint?
  • It is always advisable for the defendant to respond to the allegations in the complaint.  If he fails to Answer, it creates a presumption that the defendant is admitting the allegations of the complaint (Currier and Eimermann 148).  It also gives the Plaintiff the opportunity to seek a default judgment against the defendant.  In this case, the court may award the judgment in favor of the plaintiff.
• What are the five basic ways that a defendant can respond to a complaint, and what is the purpose of each?
  • There are five ways in which a defendant can respond to a complaint.  First, the defendant can deny all of the allegations in the complaint.  The purpose of the denial is to force the plaintiff to present evidence of such disputed allegations.  Second, the defendant may admit the facts alleged but insist that the admitted facts do not bring a cause of action to sue.  The purpose is to question the plaintiff’s cause of action.  Third, the defendant may allege affirmative defenses that may decrease or even eliminate her liability.  The purpose is to allege that there are certain facts that establish that the defendant is not liable.  Fourth, defendant may assert procedural defects in the complaint.  Procedural defects raise the issue of lack of cause of action because of the failure to comply with certain formalities.  Fifth, file a counterclaim against the plaintiff.  A counterclaim forces the plaintiff to respond to the defendant’s own allegations.
• What are the grounds for a 12 (b)(6) motion, and what is its purpose?
  • When the defendant feels that the complaint does not have sufficient grounds to establish the defendant’s liability, the defendant may file a motion to dismiss called Rule 12 (b)(6) stating that the plaintiff has failed “to state a claim upon which the relief can be granted.” (Currier and Eimermann 148)
• What is the difference between a 12 (b)(6) motion and a summary judgment motion?
  • Both the summary judgment and Rule 12 (b)(6) seek to convince the court to dismiss the case without the need of a trial.  The difference is that summary judgment is found in Rule 56.  Moreover, in Rule 12(b)(6), the court decides on the motion based only on the allegation in the complaint.  In a summary judgment, the court considers other evidence such as depositions, answers to interrogatories, admissions on file and affidavits before making a ruling that there is no genuine issue on a material fact (Currier and Eimermann 148).
• What is the main goal of discovery?
  • Discovery is a strategy recognized under the rules of evidence allowing the litigants to assess the strength of the case of the opposing party.  The objective is to obtain as much information as possible from the other party so they could gain a fair assessment of their own case as they prepare for trial. (Currier and Eimermann 152)
• What are the interrogatories and depositions, and how do they differ?
  • Interrogatories are written questions sent by one party to another which the other party is required to answer under oath.  On the other hand, if the individual being questioned is not a party to the case, deposition is taken which is the oral questioning of a witness under oath (Currier and Eimermann 153).  Deposition is different in the sense that the attorney conducting the deposition is not limited on the number of questions he can ask.  Moreover, since it is done orally the attorney conducting the deposition has the opportunity to observe the demeanor of the party whose deposition is being taken. 
• 23 Besides interrogatories and depositions, what are the main discovery tools available to parties?
  • In addition to interrogatories and depositions, other discovery tools available are Requests for admission, Requests for documents and physical examinations, electronic discovery
• What is e-discovery and what basic steps are followed in cases involving e-discovery?
  • When the information one of the parties is requesting is in electronic form, the discovery tool available is the e-discovery or electronic discovery (Currier and Eimermann 156)
• What special challenges does e-discovery present?
  • What makes e-discovery very challenging is the volume of the electronic data available.  In many cases, the data and information can be voluminous that it is physically impossible to sort the data. 
• What is the purpose of a pretrial conference?
  • Before the case goes to trial, a pretrial conference is scheduled.  A pretrial conference is a meeting between the attorneys handling the case and the judge hearing the case prior to the beginning of the trial (Currier and Eimermann 159)
• What is the function of the jury?
  • The main function of the jury is to listen to the presentation of evidence and resolve the factual questions raised in the case.  They evaluate the evidence and the testimonies presented and make a determination of which of the evidence and testimony are more credible.
• what is a voir dire, ad what is its purpose?
  • Voir dire is an examination of the prospective juror for the purpose of determining if the jury is fit to serve as a jury in the case (Curier and Eimermann 159). 
• What are the differences between challenges for cause and peremptory challenges, and what is the function of each?
  • In the selection of a jury, attorneys can use two types of challenges to prevent an individual from being selected as a member of the jury.  Challenge for cause refers to a method of challenging an individual from serving as a member of the jury based on his inability to serve without bias.  Peremptory challenge refers to a method of challenging an individual from being chosen as a member of the jury without the need for giving a specific reason (Currier and Eimermann 160).
• What do attorneys hope to accomplish in their opening statements?
  • After the selection of the jury, the attorneys make their opening statements for the purpose of outlining the evidence they seek to present (Currier and Eimermann 161).  The goal is to make it clear for the jury and the judge to understand their case and the evidence presented.  
• Who presents evidence first, the plaintiff or the defendant, and why?
  • The party who initiates the complaint should present his evidence first.  The plaintiff’s attorney presents his testimonies and evidence that will convince the court that he is entitled to the relief he is asking.  After the plaintiff’s presentation, the defendant’s attorney will present his own evidence. 
• When can either side move for a directed verdict? What is the purpose of that motion?
  • After the plaintiff’s attorney presents its evidence, the defendant’s attorney may make a motion for a directed verdict if he can show that the plaintiff fails to present a prima facie case.
• What is the difference between a verdict and a judgment?
  • A verdict refers to the opinion of a jury on a question of fact (Currier and Eimermann 164).  On the other hand, a judgment is a decision of the court regarding the claims of either the plaintiff or the defendant.  In a judgment, the court states the rights and obligations of the parties in the case.  The judgment becomes final several days after it is handed out and the defendant fails to appeal from the judgment.
• What is the difference between the motion for a judgment notwithstanding the verdict (a judgment N.O.V) and a motion for new trial.  Give an example of when each could be used?
  • The judgment notwithstanding the verdict refers to the motion of the losing party to reverse the jury’s verdict on the ground that the evidence is insufficient to support a verdict.  It can be used when the plaintiff clearly failed to submit evidence to support his claim.  For example, the plaintiff claims that the defendant owes him money but fails to provide any documentary evidence.   On the other hand, the motion for new trial is a motion based on errors and irregularities that took place during the trial.  For example, when there is an evidence that is admitted during the trial that should not have been admitted, the losing party may move for a new trial.  (Currier and Eimermann 164)
• Describe the limitations on a litigant’s right to appeal.
  • A litigant can only appeal on issues involving questions of law.  The appellate court does not review questions of fact unless the trial court clearly committed an error.  Moreover, the appeal must be filed within a certain period, otherwise, the judgment becomes final. 
• What is the difference between a harmless error and reversible error?
  • A harmless error is an error committed by the trial court that is not sufficient to warrant the reversal of the judgment.  A reversible error is an error that may have an impact on the judgment.  Only reversible errors will be considered to reverse the judgment of the trial court (Currier and Eimermann 165).