Thursday, October 4, 2012

Judicial and Alternative Dispute Resolution Knowing the State court systems

Knowing the State court systems
Each state and the District of Columbia have a separate court system. These systems generally include limited jurisdiction trial courts, general jurisdiction trial courts, intermediate appellate courts, and a supreme court.


Knowing the Federal court system
The federal court system consists of US district courts (general jurisdiction trial courts), US Courts of Appeals (intermediate appellate courts), the US Supreme Court (highest court), and special federal courts (limited jurisdiction courts).


How a justice is chosen for the US Supreme Court
Article II, Section 2 of the US Constitution gives the President the power to appoint US Supreme Court justices "with the advice and consent of the Senate"


Subject matter jurisdiction of federal and state courts
To hear a case, a court must have subject matter jurisdiction over the subject matter of the case. 


Exclusive federal jurisdiction Concurrent jurisdiction Exclusive state jurisdiction
Admiralty Federal questions Matters not subject to federal jurisdiction
Antitrust Diversity of citizenship cases
Bankruptcy

Copyright and trademarks

Federal crimes

Patents

Suits against the US

Other specified federal statutes



In personam jurisdiction of courts and service of process
Jurisdiction over the person is called in personam jurisdiction. A plaintiff, by filing a lawsuit with a court, gives that court in personam jurisdiction over himself or herself. In personam jurisdiction over the defendant is obtained by service of summons and complaint on the defendant (service of process). Jurisdiction over the property in a lawsuit is called in rem jurisdiction.


Venue
Under the concept of venue, lawsuits must be heard by the court with jurisdiction nearest to the location in which the incident occurred or where the parties reside.


Pretrial litigation process

  • Pleadings—paperwork filed with a court to initiate and respond to a lawsuit
  • Complaint—document the plaintiff files with the court and serves on the defendant to initiate a lawsuit
  • Summons—court order directing the defendant to appear in court and answer the complaint
  • Answer—defendant's written response to the plaintiff's complaint
  • Cross–complaint—filed by defendant against the plaintiff to seek damages or some other remedy
  • Reply—filed by original plaintiff to answer the defendant's cross–complaint
  • Intervention—act of others to join as parties to an existing lawsuit
  • Consolidation—act of a court to combine two or more separate lawsuits into one lawsuit
  • Discovery—both parties engage in various activities to discover facts of the case from the other party and witnesses prior to trial
  • Depositions—oral testimony, transcribed and given under oath, by a party or witness prior to trial
  • Interrogatories—written questions submitted by one party to another party
  • Production of documents—request by one party by another party to produce all documents relevant to the case prior to trial
  • Physical or mental examination
  • Dismissals and pretrial judgment—many lawsuits are disposed of entirely or in part prior to trial
  • Motion for judgment on the pleadings—alleges that even if all facts presented in the pleadings are true, the party making the motion would win the lawsuit
  • Motion for summary judgment—alleges that there are no factual disputes to be decided by the jury
  • Settlement conference—more than 90 percent of cases are settled before they go to trial
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How a case proceeds through trial
  • Jury selection
  • Opening statement
  • Plaintiff's case
  • Defendant's case
  • Rebuttal and rejoinder
  • Closing arguments
  • Jury instructions
  • Jury deliberations
  • Verdict
  • Entry of judgment

Appeals of trial court decisions
Either party can appeal the trial court's decision in a civil case once a final judgment is entered. In a criminal case, only the defendant can appeal.


Arbitration and other non-judicial methods of alternative dispute resolution
Many cases are resolved using alternative dispute resolution methods. Some common methods are:
  • Arbitration—parties choose an impartial third party to hear and decide the dispute
  • Mediation—parties choose a neutral third party to act as the mediator of the dispute
  • Conciliation—parties choose an interested third party to act as mediator
  • Mini-trial—lawyers for both sides present their cases to representatives of each party who have authority to settle the dispute
  • Fact-finding—parties hire a neutral person to investigate the dispute and recommend a basis for settlement
  • Judicial referee—court appoints a judicial referee to conduct a private trial and render a judgment
Term in this chapter
  • 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.
  • appellant—The appealing party in an appeal. Also known as petitioner.
  • appellee—The responding party in an appeal. Also known as respondent.
  • arbitration—A form of ADR in which the parties choose an impartial third party to hear and decide the dispute.
  • arbitration clause—A clause contained in many international contracts that stipulates that any dispute between the parties concerning the performance of the contract will be submitted to an arbitrator or arbitration panel for resolution.
  • complaint—The document the plaintiff files with the court and serves on the defendant to initiate a lawsuit.
  • conciliation—A form of mediation in which the parties choose an interested third party to act as the mediator.
  • concurrent jurisdiction—Jurisdiction shared by two or more courts.
  • consolidation—The act of a court to combine two or more separate lawsuits into one lawsuit.
  • Court of Appeals for the Federal Circuit—A court of appeals in Washington, D.C., that has special appellate jurisdiction to review the decisions of the Claims Court, the Patent and Trademark Office, and the Court of International Trade.
  • cross-complaint—Filed by the defendant against the plaintiff to seek damages or some other remedy.
  • deponent—Party who has given his or her deposition.
  • deposition—Oral testimony given by a party or witness prior to trail. The testimony is given under oath and is transcribed.
  • 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.
  • diversity of citizenship—A case between (1) citizens of different states and (2) a citizen of a state and a citizen or subject of a foreign country.
  • exclusive jurisdiction—Jurisdiction held by only one court.
  • federal question—A case arising under the U.S. Constitution, treaties, and federal statutes and regulations.
  • forum-selection clause—Contract provision that designates a certain court to hear any dispute concerning nonperformance of the contract.
  • general-jurisdiction trial court—A court that hears cases of a general nature that are not within the jurisdiction of limited--jurisdiction trial courts. Testimony and evidence at trial are recorded and stored for future reference.
  • in personam jurisdiction—Jurisdiction over the parties to a lawsuit.
  • in rem jurisdiction—Jurisdiction to hear a case because of jurisdiction over the property of the lawsuit.
  • intermediate appellate court—An intermediate court that hears appeals from trial courts.
  • interrogatories—Written questions submitted by one party to another party. The questions must be answered in writing within a stipulated time.
  • intervention—The act of others to join as parties to an existing lawsuit.
  • jurisdiction—The authority of a court to hear a case.
  • limited-jurisdiction trial court—A court that hears matters of a specialized or limited nature.
  • litigation—The process of bringing, maintaining, and defending a lawsuit.
  • long-arm statute—A statute that extends a state's jurisdiction to nonresidents who were not served a summons within the state.
  • mediation—A form of ADR in which the parties chose a neutral third party to act as the mediator of the dispute.
  • motion for judgment on the pleadings—Motion that alleges that if all the facts presented in the pleadings are taken as true, the moving party would win the lawsuit when the proper law is applied to these asserted facts.
  • motion for summary judgment—Motion that asserts that there are no factual disputes to be decided by the jury; if so, the judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by affidavits, documents, and deposition testimony.
  • petition for certioari—A petition asking the Supreme Court to hear one's case.
  • 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.
  • pleadings—The paperwork that is filed with the court to initiate and respond to a lawsuit.
  • pretrial hearing—A hearing before the trial in order to facilitate the settlement of a case. Also called a settlement conference.
  • pretrial motion—A motion a party can make to try to dispose of all or part of a 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.
  • quasi in rem jurisdiction—Jurisdiction allowed a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state.
  • reply—Filed by the original plaintiff to answer the defendant's cross–complaint.
  • service of process—A summons is served on the defendant to obtain personal jurisdiction over him or her.
  • small claims court—A court that hears civil cases involving a small dollar amounts.
  • special federal courts—Federal courts that hear matters of specialized or limited jurisdiction.
  • standing to sue—The plaintiff must have some stake in the outcome of the lawsuit.
  • state supreme court—The highest court in a state court system; it hears appeals from intermediate state courts and certain trail courts.
  • statute of limitations—Statute that establishes the time period during which a lawsuit must be brought; if the lawsuit is not brought within this period, the injured party loses the right to sue.
  • subject matter jurisdiction—Jurisdiction over the subject matter of a lawsuit.
  • 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 legal support for their side of the case.
  • trier of fact—the jury in a jury trial; the judge where there is not a jury trial.
  • United States courts of appeals—The federal court system's intermediate appellate court.
  • United States district courts—The federal court system's trial courts of general jurisdiction.
  • United States Supreme Court—The highest court in the land. It is located in Washington, D.C.
  • venue—A concept that requires lawsuits to be heard by the court with jurisdiction that is nearest the location in which the incident occurred or where the parties reside.
  • writ of certiorari—An official notice that the Supreme Court will review one's case. 

source: http://wps.prenhall.com/bp_cheeseman_legal

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