Chapter 6—Judicial and Alternative Dispute Resolution
A.Chapter Introduction
In this chapter, the students are introduced to the American judicial system. This chapter examines the distinct functions of the federal court system and the state court systems with respect to the concept of jurisdiction and the role of the courts in the litigation process. This chapter also examines the various non-judicial methods of resolving disputes, collectively known as alternative dispute resolution. Paralegals play an important supporting role to litigation attorneys, and engage in many tasks through the course of litigation. After studying this chapter, the student will be able to:
- Describe and outline the federal and state court systems, including an explanation and application of the concepts of jurisdiction and venue.
- Explain the relationship and respective functions of the courts within the federal and state court systems.
- Examine litigation in light of a cost-benefit analysis.
- Compare and contrast subject matter and in personam jurisdiction.
- Explain the uses of alternative dispute resolution.
- Compare and contrast arbitration and mediation.
B.Instructional Ideas
- Tour a trial courthouse.
- Tour an appellate courthouse.
- Attend a trial, motion hearing, or docket call.
- Attend an appellate court oral argument session.
- Rearrange the classroom to create the appearance of a courtroom.
C.Lecture and Class Discussion Outline
State Court Systems
Limited-Jurisdiction Trial Courts
State courts that hear matters of a routine, specialized, or limited nature, for example, misdemeanor criminal matters, civil matters under certain dollar amounts, probate matters, etc. These are trial courts wherein the facts are determined and the law is interpreted and applied to the facts.
General-Jurisdiction Trial Courts
State court that hears cases of a general nature that is not within the jurisdiction of limited-jurisdiction trail courts. These are trial courts wherein the facts are determined and the law is interpreted and applied to the facts.
Intermediate Appellate Courts
These are state courts that hear appeals from state trial courts. The appellate courts review the trial court record in making its decision; no new evidence is introduced at this level. As such, appellate courts are not fact finders, but rather determine whether or not the trial court misinterpreted or misapplied the law.
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; no new evidence is introduced at this level. As such, the highest state court of appeals is not a fact finder, but rather determines whether or not the trial court or the intermediate court of appeals misinterpreted or misapplied the law. Most states call this court the supreme court.
Federal Court System
Special federal courts
These federal courts have specialized or limited jurisdiction. They include:
- U.S. Tax Court: Hears cases involving federal tax laws.
- U.S. Claims Court: Hears cases brought against the United States.
- U.S. Court of International Trade: Hears cases involving tariffs and international commercial disputes.
- U.S. Bankruptcy Courts: Hear cases involving bankruptcy law.
U.S. District Courts
Federal courts of general jurisdiction that hear cases not within the jurisdiction of specialized courts. There is at least one U.S. district court per state; more populated states have several district courts. The area served by one of thee courts is called a district. There are presently 96 federal judicial districts. A federal district may be geographically subdivided into different divisions, wherein each division maintains a courthouse for that district. The federal district courts are trial courts wherein the facts are determined and the law is interpreted and applied to the facts.
U.S. Courts of Appeal
Intermediate federal appellate courts hear appeals from district courts located in their geographic circuit, and in certain instances from special federal courts and federal administrative agencies. There are 12 geographic circuits in the United States. Eleven serve areas that are comprised of several states and are denominated numerically, while another is located in Washington, D.C. and is called the D.C. Circuit. A thirteenth circuit appeals court—the Court of Appeals for the Federal Circuit—is located in Washington, D.C., and reviews patent, trademark, and international trade cases. The federal appellate courts review the district court record in making its decision; no new evidence is introduced at this level. As such, federal appellate courts are not fact finders, but rather determine whether or not the district court misinterpreted or misapplied the law.
U.S. Supreme Court
This is the highest court of the federal court system and the only one specifically created under Article III of the U.S. Constitution. It hears appeals from the circuit courts and, in some instances, from special courts and U.S. district courts. The Court, located in Washington, D.C., comprises nine justices, one of whom serves as chief justice. The U.S. Supreme Court is not a fact finder, but rather determines whether or not the district court or the circuit court of appeals misinterpreted or misapplied the law.
Decisions by U.S. Supreme Court
Petition of certiorari and writ of certiorari
To have a case heard by the U.S. Supreme Court, a petitioner must file a petition for certiorari with the Court. If the Court decides to hear the case, it will issue a writ of certiorari.
Unanimous decision
All of the justices agree as to the outcome and reasoning used to decide the case; the decision becomes precedent.
Majority decision
A majority of justices agrees as to the outcome and reasoning used to decide the case; the decision becomes precedent.
Plurality decision
A majority of the justices agrees to the outcome but not to the reasoning; the decision is not precedent.
Tie decision
If there is a tie vote, the lower court’s decision stands; the decision is not precedent. Obviously this can only occur when an even number of justices participate in the decision-making. This can occur when the death, retirement, or impeachment and removal of a justice creates a vacancy or when a justice recuses from the case.
Concurring opinion
A justice who agrees as to the outcome of the case but not to 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 a case may write a dissenting opinion setting forth his or her reasoning.
Jurisdiction of Federal and State Courts
Federal Jurisdiction
Federal courts have the authority to hear the following cases:
Federal question
Cases arising under the U.S. Constitution, treaties, and federal statutes and regulations; there is no dollar-amount limit.
Diversity of citizenship
These are cases between citizens of different states, or citizens of a state and a citizen or subject of a foreign country, wherein the amount in controversy exceeds $75,000. Federal courts must apply the appropriate state law in such cases.
Jurisdiction of State 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 admiralty cases. State courts may not hear these matters.
State courts have the authority to hear some cases that may also be heard by federal courts.
Concurrent jurisdiction
State courts have concurrent jurisdiction to hear cases involving diversity of citizenship cases and federal question cases over which the federal courts do not have exclusive jurisdiction. The defendant may have the case removed to federal court.
Jurisdiction lies exclusively within the state courts in cases wherein the participants are residents of the same state and where there does not exist a federal question.
Other Judicial Concepts and Considerations
Standing to Sue
To bring a lawsuit, the plaintiff must have some interest in the outcome.
Subject-Matter Jurisdiction
The court must have jurisdiction over the subject matter of the lawsuit that does not fall outside the scope of a limitation on the jurisdiction of the court. For example, suing someone for the sum of $100,000 in small claims court.
In Personam 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 there. Personal jurisdiction is obtained over the defendant by service of process.
In Rem Jurisdiction
A court may have jurisdiction to hear and decide a case because it has jurisdiction over the property or controversy at issue in the lawsuit. For example, disposition of real property located in the state, a tort occurring within the state, etc.
Quasi in Rem Jurisdiction
A plaintiff who obtains a judgment against a defendant in one state use the court system of another state to attach defendant’s property located in the second state.
Long-Arm Statutes
Permit a state to obtain person jurisdiction over an out-of-state defendant as long as the defendant had the requisite minimum contract with the state by service of process outside the state in which the lawsuit has been brought.
Venue
The court that has jurisdiction nearest to where the incident at issue occurred or where the parties reside must hear the case. A change of venue may be granted.
Forum-Selection Clause
A clause in a contract that designates the court that will hear any dispute that arises out of the contract.
Alternative Dispute Resolution (ADR)
Methods of ADR are non-judicial means of solving legal disputes. ADR usually saves time and money required by litigation.
Types of ADR
Arbitration
An impartial third party, called the arbitrator, hears and decides the dispute. The arbitrator makes an award. The award is appealable to a court if the parties have not given up this right. Furthermore, an arbitration award can be affirmed as a court judgment upon a motion to a trial court of proper jurisdiction. Arbitration can be designated by the parties pursuant to:
Arbitration clause—An agreement contained in the contract stipulating that any dispute arising out of the contract will be arbitrated.
Submission agreement—An agreement to submit a dispute to arbitration after the dispute arises.
Meditation
A neutral third party, called a mediator, assists the parties in trying to reach a settlement of their dispute. The mediator does not make an award, but rather acts as a settlement negotiator.
Conciliation
An interested third party, called a conciliator, assists the parties in trying to reach a settlement of their dispute. The conciliator does not make an award, but rather acts as a settlement negotiator.
Minitrial
A short non-governmental trial session wherein the lawyers for each of the interested parties present their case to representatives of each party who have then the authority to settle the dispute.
Fact-finding
The parties hire a neutral third person, called a fact-finder, to investigate the dispute and report his or her findings to the adversaries.
Judicial referee
With the consent of the parties, the court appoints 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 court and may be appealed to the appropriate appellate court.
D.Internet Resources
Federal Court site
U.S. Supreme Court sites
U.S. Court of Appeals site
U.S. District Court site
American Arbitration Association
E.Suggested Answers
Questions for Critical Legal Thinking and Writing
- While such a decision does not reach the merits of the dispute, it does indicate the failure of the plaintiff to bring the matter in a court of proper jurisdiction or the failure to adequately state a valid cause of action. In each instance the court is interpreting and applying procedural law. It also serves as a time saver inasmuch as it frees the court to hear matters properly plead and properly within its jurisdiction.
- It demonstrates that the court only has the authority to rule on live issues, issues that have not been rendered moot by the lack of a parties’ interest in the prevention of a future harm or for the redress of a past harm.
- Lee v. Weisman presented a governmental policy mandating prayer at a public school event. Whereas the Appellants in Adler v. Duvall failed to show any nexus between a governmental policy and the prayer recited by a student at a public school ceremony. The prayer in Adler was more akin to private speech at a public function.
- It depends on the nature of the business and the nature of the information. Only individuals are protected under the Fifth Amendment. Thus if the nature of the business information pertains to a business entity other than a sole proprietorship then the information is not protected from disclosure, unless the information is purely the private information of the individual and their relation to the business and thus lack a dual purpose.
- Yes, as sexual harassment is a private cause of action and when coupled with the use of business e-mail networks provides a basis for when a business knows or should know of sexually harassing behavior.
- Yes, by contractually limiting the judicial forum to one more convenient to the potential defendant.
- Differences in jury pool, procedural rules, docket timing, availability of discovery, and forum convenience.
8. Same as above.
9. The advantages and disadvantages depend highly on the controversy at issue and relationship of the parties.
10. Expense weighed against the likelihood of success.
Ethics Questions for Analysis and Discussion
- Generally, yes, since it is a private contractual matter. But it depends on the state arbitration statute allowing non-members of the bar to serve as a valid arbitrator.
- Yes, when they are related to the attorney’s representation of client’s.
- No, as this equates to client representation.
Cases for Discussion
- If this matter were filed presently in a state court it could not be removed by the defendant to federal court as the plaintiff does not claim more than $75,000 in damages.
- The District Court held that manufacturer of bowling equipment would be required to comply with its agreement with a competitor to submit its dispute to arbitration even though the new advertisement was not as explicit in disparaging the competitor’s product as the prior advertisements were subject to the prior settlement. But the current dispute was at least as important to parties as former one that resulted in litigation. As such, the arbitration agreement attaches.
- Chief Justice William Rehnquist, writing for the unanimous Court, found that jurisdiction over petitioners in California is proper because of their intentional conduct in Florida allegedly calculated to cause injury to respondent in California. In it’s holding, the Court reasoned that the Due Process Clause permits personal jurisdiction over a defendant in any State with which the defendant has certain minimum contacts focusing on the relationship among the defendant, the forum, and the litigation. In this case, California is the focal point both of the allegedly libelous article and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the effects of their Florida conduct in California.
- Associate Justice Antonin Scalia, writing for the majority of the Court, held that the Due Process Clause does not deny a State’s courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State. Therefore, the service of process was valid.
Case for Briefing
- A case is moot when the issues no longer present a live controversy or when the parties no longer have a legal interest in the outcome.
- Being exposed to a student initiated prayer at a public school graduation ceremony.
- It must be brought either prior to the prayer being stated to prevent future harm or afterwards to remedy a past harm, but in either case the prayer must be coupled with evidence of a governmental policy authorizing or mandating the prayer at the public ceremony.
- When the duration of the challenged action is too short to litigate prior to its occurrence, and there exists a reasonable likelihood that the complaining party will be subjected to the same action again in the future.
- Lee v. Weisman presented a governmental policy mandating prayer at a public school event. Whereas the Appellants in Adler v. Duvall failed to show any nexus between a governmental policy and the prayer recited by a student at a public school ceremony. The prayer in Adler was more akin to private speech at a public function.
F.Feedback
Multiple Choice—Circle the letter immediately to the left of the best answer.
1.Which of the following is not a definition of jurisdiction?
a.a geographic area over which a particular court has authority
b.the authority of a court over a particular subject matter
c.the authority of a court over particular people
d.*the closest location where a particular matter should be tried
2.A court that can hear only limited types of cases, such as probate matters, domestic relations, etc., is referred to as a court of:
a.exclusive jurisdiction.
b.general jurisdiction.
c.appellate jurisdiction.
d.*limited jurisdiction.
3.When two courts have jurisdiction over a case, and the case may be brought in either court, the courts are referred to as having:
a.*concurrent jurisdiction.
b.general jurisdiction.
c.appellate jurisdiction.
d.limited jurisdiction.
4.A court that has the authority to hear a matter for the first time and determine the facts has:
a.concurrent jurisdiction.
b.*original jurisdiction.