Contemporary Business and Online Commerce Law - Chapter 3

Traditional, Alternative, and E-commerce Dispute Resolution.

State Court Systems.

1. Limited jurisdiction trial courts -- state courts that hear matters of a specialized or limited nature (examples).
   
   
   
   • Misdemeanor criminal matters.
   
   
   • Traffic tickets.
   
   
   • Civil matters, under a certain dollar amount.
   
   
   
   






Many states have created small claims courts that hear small dollar amounts civil cases where the parties cannot be represented by lawyers.






2. General jurisdiction trial courts -- state courts that hear cases of a general nature that are not within the jurisdiction of limited jurisdiction, trial courts


3. Intermediate appellate courts -- state courts that hear appeals from state trial courts.  The appellate court reviews the trial court recording in making its decision.  Their new evidence is introduced at this level.


4. Highest state court -- each state has a highest court in its court system.  This Court hears appeals from appellate courts, and where appropriate, trial courts.  This court reviews the record in making its decision.  Their new evidence is introduced at this level.  Most states call this court, the Supreme Court.

The Federal Court System

1. Special federal courts -- federal courts have specialized or limited jurisdiction. They include:
   
   
   
   • US Tax Court -- hears cases involving federal tax laws
   
   
   • US Claims Court -- hears cases brought against the United States
   
   
   • US Court of international trade -- hears cases involving terrorists and international commercial disputes
   
   
   • U.S. Bankruptcy Court's -- hear cases involving federal bankruptcy law
   
   
   
   


2. US District courts -- federal trial courts of general jurisdiction they hear cases not within the jurisdiction of specialized courts. There is at least one US District Court per state: more populated states have several District Court's. The area served by one of these courts is called a district.


3. US Courts of Appeals -- intermediate federal appellate courts that hear appeals from district courts located in their circuit, and in certain instances from special federal courts and federal administrative agencies. There are 12 geographical circuits in the United States. 11 Serb areas that comprised several state, while another is located in Washington, DC. A 13th circuit court -- the Court of Appeals for the Federal Circuit -- is located in Washington, DC. And it reviews patent, trademark, and international trade cases.


4. US Supreme Court -- this is the highest court of the federal court system. A hears appeals from the circuit courts and, in some instances, from special courts in US District Court's. The court, which is located in Washington D. C. is composed of nine justices, one of whom is named Chief Justice.


5. Decisions by the US Supreme Court
   
   
   
   • Writ or certiori -- to have a case heard by the US Supreme Court, a petitioner must file a petition for certiori within the court. If the court decides to hear the case, it will issue a writ or certiori.
   
   
   • voting by the US Supreme Court:
     
     
     
     • unanimous decision -- all of the justices agree as to the outcome in reasoning used to decide the case. The decision becomes precedent
     
     
     • majority decision -- a majority of the justices agree as to the outcome and reasoning used to decide the case. The decision becomes precedent
     
     
     • plurality decision -- a majority of the justices agree to the outcome, but not the reasoning. The decision is not precedent
     
     
     • tie decision -- if there is a tie them, the lower court's decision stands. The decision is not precedent
     
     
     • concurring opinion -- a justice who agrees as to the outcome of the case. But not the reasoning used by other justices may write a concurring opinion setting forth his or her reasoning
     
     
     • dissenting opinion -- a justice who disagrees with the outcome of the case may write a dissenting opinion, setting forth his or her reasoning for dissenting
     
     
     
     
   
   
   
   

Jurisdiction of Federal and State Courts

1. Jurisdiction of federal courts -- federal courts may hear the following cases:
   
   
   
   • federal question -- cases arising under the U.S. Constitution, treating, and federal statutes and regulations. There is no dollar amount limited federal question cases
   
   
   • diversity of citizenship -- cases between citizens of different states and a citizen of a state and a citizen or subject of a foreign country. Federal courts must apply the appropriate state laws that such cases. The controversy must exceed $75,000 for the federal court to hear the case
   
   
   
   


2. Jurisdiction of state courts -- state court here some cases that may be heard by federal courts
   
   
   
   • exclusive jurisdiction -- federal courts have exclusive jurisdiction to hear cases involving federal crimes, antitrust and bankruptcy, patent and copyright cases, suits against the United States, and most admirality cases. State courts may not hear these matters
   
   
   • concurrent jurisdiction -- state courts have concurrent jurisdiction to hear cases involving diversity of citizenship cases in federal question cases, over which the federal courts do not have exclusive jurisdiction. The defendant may have the case removed to federal court
   
   
   
   

Jurisdiction and Venue of Courts

Standing to sue, jurisdiction and venue

1. standing to sue -- to bring a lawsuit, the plaintiff must have some stake in the outcome of the lawsuit


2. subject matter jurisdiction -- the court must have jurisdiction over the subject matter of the lawsuit. Each corps has limited jurisdiction to hear only certain types of cases


3. and personam jurisdiction (or personal jurisdiction) -- the court must have jurisdiction over the parties to a lawsuit. The plaintiff submits to the jurisdiction of the court by filing the lawsuit they are. Personal jurisdiction is obtained over the defendant through service of process to that person.


4. In rem jurisdiction -- a court may have jurisdiction to hear and decide a case because it has jurisdiction over the property at issue in the lawsuit


5. Quasi in rem jurisdiction (or attachment jurisdiction) -- a plaintiff who obtained a judgment against a defendant in one state be utilized. The court system of another state to attach property of the defendants that is located in the second state


6. long arm statutes -- these statutes permit a state to obtain personal jurisdiction over on out-of-state defendant as long as the defendant had the requisite minimum contact with the state. The out-of-state defendant may be served process outside the state in which the lawsuit it has been brought


7. venue -- the case may be heard by a quirk that has jurisdiction near us to where the incident. At issue occurred or the parties reside. A change of venue will be granted if prejudice would occur because of pretrial publicity or another reason


8. Forum selection clause -- a clause in a contract that designates the court will hear any dispute that arises out of the contract

Pretrial Litigation Process

Pleadings -- are paperwork that initiates in response to a lawsuit. Pleadings include:

1. complaint -- filed by the plaintiff with the core and served with a summons on the defendant. It sets forth the basis of the lawsuit


2. answer -- filed by the defendant with the core and served on the plaintiff. It usually denies most allegations of the complaint


3. cross-complaint -- filed and served by the defendant if he or she counter sues the plaintiff. The defendant, is the cross-complaint and the plaintiff is the cross-defendant. The cross-defendant must file and serve a reply


4. intervention -- a person who has an interest in a lawsuit may intervene and become a party to the lawsuit


5. consolidation -- separate cases against the same defendant arising from the same incident may be consul dated by the court into one case, if doing so would not cause prejudice to the parties

Discovery -- the pretrial litigation process for discovering facts of the case from the other party and witnesses. Discovery consists of:

1. depositions -- but Worrell testimony given by a deponent, either a party or witness. Depositions are transcribed


2. interrogatories -- these written questions are submitted by one party to the other party. They must be answered within a specific period of time


3. production of documents -- a party to a lawsuit may obtain copies of all relevant documents from the other party


4. physical and mental examination -- these examinations of the party are permitted upon order of the court were injuries are alleged that could be verified or disputed by such examination

Dismissals and Pretrial Judgments

1. motion for summary judgment on the pleadings-- this mission alleges that if all facts as pleaded are true, the meeting party would win the lawsuit. No facts outside the pleadings may be considered


2. motion for summary judgment -- this motion alleges that there are no factual disputes, so the judge may apply the law and decide the case without a jury. Evidence outside the pleadings may be considered such as affidavits, documents, depositions

Settlement Conference

this conference occurs prior to trial between the parties in front of the judge to facilitate the settlement of the case. Also called the pretrial hearing. If settlement is not reached, the case proceeds to trial.

Phases of a Trial

1. jury selection -- occurs through a process called voir dire. Biased jurors are dismissed and replaced.


2. opening statements -- the party's lawyers make opening statements, which are not evidence.


3. the plaintiff's case -- the plaintiff bears the burden of proof. The plaintiff calls witnesses and introduces evidence to try to prove his or her case


4. the defendant's case -- the defendant calls witnesses and introduces evidence to rebut the plaintiff's case and to prove affirmative defense and cross-complaints


5. rebuttal and rejoinder -- the plaintiff and defendant may call additional witnesses and introduce additional evidence


6. closing arguments -- the party's lawyers May closing arguments, which are not evidence.


7. jury instructions -- the judge reads instructions to the jury as to what will they all are to apply to the case


8. jury deliberation -- the jury retires to the jury room and deliberate until it reaches a verdict


9. entry of judgment -- the judge may:
   
   
   
   • enter the verdict reached by the jury as the court's judgment
   
   
   • grant a motion for judgment n.o.v. if the judge finds that the jury was biased. This means the jury's verdict does not stand
   
   
   • order remittitur (reduction) of any damages awarded at the judge finds the jury to be biased or emotional
   
   
   
   

The Appeal

both parties in a civil suit, and the defendant in a criminal trial may appeal the decision of the trial court. Notice of appeal must be filed within a specified period of time. The appeal must be made to the appropriate appellate court.

Alternative Dispute Resolution (ADR)

ADR is a nonjudicial means of solving legal disputes. ADR usually saves time and money compared to litigation.

Types of ADR

1. arbitration -- an impartial third party, called the arbitrator, here's a decides the dispute. The arbitrator makes an award. The award is appealable to a court if the parties have not given up this right. Arbitration is designed by the parties pursuant to:
   
   
   
   • arbitration clause -- agreement contained in a contract stipulating that any dispute arising out of the contract will be arbitrated
   
   
   • submission agreement -- agreement to submit the dispute to arbitration after the dispute arises
   
   
   
   


2. mediation -- a neutral third party, called a mediator, assist the parties and trying to reach a settlement of their dispute. The mediator does not make an award.


3. conciliation -- on and trusted third party, called a conciliator, a the parties in trying to reach a settlement of their dispute. The conciliator does not make an award.


4. minitrial -- a minute trial is a short session in which the lawyers for each side present their cases to representatives of each party who have the authority to settle a dispute.


5. fact-finding -- the parties may hire a neutral third person, called a fact finder, to investigate the dispute and report his or her findings to the adversaries.


6. judicial referee -- with consent of the parties, the court may appoint a judicial referee (usually a retired judge or lawyer) to conduct a private trial and render a judgment. The judgment stands as the judgment of the core and may be appealed to the appropriate appellate court.