CLAW 301

02/09/2016

FOLLOWING A CASE
Pleadings & Pretrial
o Injury
o Consult w an attorney
Statute of limitations(time limit to file a claim)
Negotiations
o Pleadings
Service of Progress(formally notifying D of lawsuit)
Summons(notice requiring D to appear in court
answering compliant filed against them)
If D fails to come to court in required amount of
time then default judgment will occur in Ps
favor.
o Answer(Ds response to Ps compliant)
Affirmative defense (doesnt deny claim but brings new
facts up in their defense).
Counterclaim (D sues P- must have actual cause to do
so. Cant just be because they sued them)
Reply(Ds response Ps response to Ds
counterclaim)
o Motions(For example: Motion to strike, Motion to dismiss, etc)
o Discovery
Depositions, admissions, interrogatories, medical
examinations, etc.
o Voir Dire (process of choosing jury)
Attorneys can strike veniremen(potential jurors) for
cause(bias) an unlimited amount of times.
Attorneys can strike for peremptory reasons (no
reason) limited to 3 times in Kentucky.

CAN NEVER strike due to race or gender.

o Opening Statements: P then D goes
o Rules of Evidence (P then D again)
o Examination of witnesses and potential motions
Direct, cross, redirect, and recross
Motion for direct verdict where D says that P hasnt
shown sufficient evidence and asks for direct verdict
from judge. (sometimes this happens)
o Defendants evidence next: rebuttal & rejoinder
o Closing arguments (once again P then D)
o Judge instructs jury to uphold the law when coming to their
verdict.
o Jury deliberates and comes to verdict
Unanimous in criminal cases
Non-unanimous to civil cases
No verdict judge declares a mistrial
Post-trial
o Motion for new trial
o Motion for J nov (judgment not withstanding the verdict)
jury verdict was unreasonable and erroneous.
Appeal
o Either party can appeal
o If judge makes an reversible error one that effected the
outcome of the trial
Enforcement
o If D is ordered to pay P court may have to issue order to
enforce judgment.

o
o

o Writ of execution (sheriff is to seize/sell Ds nonexempt

property If they dont pay P)
3 elements of standing to sue
1. Harm
2. Causation
3. Remedy
Rules of evidence must be REVELANT & RELIABLE
No HEARSAY
3 tier model for the Federal Court System
U.S. District Courts (trial courts of general jurisdiction) & various
courts of limited jurisdiction
U.S. Court of Appeals
SCOTUS
3 things on the sliding scale for subject matter jurisdiction: Cyberspace
substantial business contracted
o jurisdiction is proper
some interaction through website
o jurisdiction may/may not be proper
passive advertising
o no jurisdiction
Primary Sources of law
U.S. Constitution (or constitutions of the various states)
Statutory law ones passed by Congress, State legislatures, or
local governing bodies

o
o

Regulations by Administrative Agencies, ex: FDA

Case law & Common law Doctrines
A State Court System usually consists of:
Trial courts of general jurisdiction
Trial courts of limited jurisdiction
Appellate Courts (intermediate appellate courts)
The states highest court (often called Supreme Court)
All ADR are private and not public
Negotiation (simplest form of ADR) only parties of representatives
involved.
Parties attempt to work out their difference and reach a mutually
acceptable settlement.
Can be the best way to resolve differences.
Assisted negotiation: assistance of 3rd party
Mini-Trial: private, both parties attorneys argue their case before
the other party and a neutral expert
o Neutral expert renders a non-binding opinion about how a
court would likely decide the issues.
Mediation: neutral (expert) 3rd party acts as a mediator (a gobetween)
o Assists the parties to achieve mutual agreement, does not
create final decision parties will make their own settlement
Binding Mediation: this is a binding mediation where the parties agree in
event they cant make a decision, the mediator can make a legally
binding decision
Court can enforce this.
Requires contract, written
Mediation arbitration
Parties first attempt to settle through mediation, if not settlement
then they arbitrate BINDING

o
o

Advantages of Mediation
o Parties can tailor the process to meet their needs
o Private & not in public record
o Can save time & maybe $$
Disadvantages of Mediation
o Mediator charges fees
o Place of mediation can be expensive
o W no deadline a party may not have incentive to settle.
o No appeal if dissatisfied
Arbitration
More formal than other ADRs. binding always unless stated in
contract, can appeal in court.
Uniform Arbitration Act: States have adopted so they cannot dictate
procedure or terms of arbitration
Federal Arbitration Act of 1925 Policy that favors arbitration
Doesnt establish a procedure to arbitrate bur enforces parties must
agree on manner to resolve dispute
Arbitration Process
Submission: the act of referring a dispute to an arbitrator
o Parties must agree to refer Questions of fact and law to
arbitrator. (similar to a compliant)
o Must be written and submitted in definite period of time
Hearing: trial-like presentation of issues, remedies, arguments
o Opening statements, case-in-chief, evidence, witnesses,
closing arguments
o Arbitrator closes hearing

Award: final decision of arbitrator

o Must be rendered within 30 days after close of hearing
o Only requirements are that all issues are completely resolved
Arbitrability
o Issue for the court Is this dispute one that can be decided
through arbitration?
Compulsory Arbitration Agreements
o Employment Contracts
o Auto Purchase Contracts
o Stock brokerage Accounts
Unconscionability an absence of meaningful choice with terms that
unreasonably favor one party at the expense of other party
o Substantive uncon: allocates risk in objectively unreasonable
manner
o Procedural uncon: requires oppression or surprise
o Ex: Lhotka V. National Expeditions
Setting aside Arbitration award
o Generally cannot be set aside
o Arbitrators findings of fact and conclusions of law are final
o Court may overturn if award violates a statue or public policy
or for fraud, corruption.
Conflicts of law: which law applies? Fed or State?
o If FAA conflicts with state law
Fed wins: supremacy clause or commerce clause of U.S.
Constitution.
Choice-of-law: parties to the contract may choose the law of a
specific state to govern the contract (agreed upon choice of law)

o SCOTUS has upheld such agreements

Disadvantages of Arbitration
o Expensive
o No public record
o Adhesion contracts (dont benefit the customer)
o No discovery
The Court & ADR
o Court-annexed arbitration
Not binding (not voluntary)
Can be rejected by a party who can then proceed to
trial
Court hears case de novo
Court ignores the arbitration and tries the
case as if arb. Has no occurred
Party attempting to reject arb. May have to pay
the cost of arb.
Most states impose the same rules of evidence in arb.
As in litigation.
o Court-related mediation
Courts may offer mediation rather than arb.
Advantages
Lower cost than court order arb.
Faster than either arb. Or litigation
Disadvantages
Either party can reject

Summary jury trials

o Mock trial
o Occurs before a judge & jury in abb form
Jury renders verdict but isnt binding
o Verdict guides as a preview for what could happen at real trial
This encourages a settlement
ADR Services
o American Arbitration Association (AAA)
Private arbitration services, over 200,000 claim a year
o Better Business Bureau
Offers ADR programs
o Online organizations
Online Dispute Resolutions(ODR)
Online negotiation & mediation services
Internal dispute resolution
o International Contracts: common clauses
Forum selection
Choice of law
Arbitration