Litigation and Alternatives for Settling Civil Disputes

Chapter 5: Litigation and Alternatives for Settling Civil Disputes 27

CHAPTER 5

Litigation and Alternatives for Settling Civil Disputes

KEY POINTS IN THE CHAPTER

· Legal disputes that cannot be resolved informally by the parties may end up in court as a lawsuit.

· Litigation (a lawsuit) is expensive, time-consuming, and emotionally draining. Also, the person being sued may be judgment proof. Therefore, if you become involved in a legal controversy, you should try to settle out of court.

· Litigation involves several stages. It begins when the person who is suing after visiting an attorney files a complaint with the appropriate court and the defendant files an answer soon after receiving the complaint and a summons to appear in court to answer the complaint. After suit is filed, the discovery process takes place. Discovery narrows the legal issues and may reduce the duration of the actual trial if the case is not otherwise settled out of court.

· If there is an actual trial, the petit jury is selected and the trial is held.

· The time, trouble, frustrations, and expense associated with trials have led individuals and business to resort to alternative dispute resolution (ADR) methods.

· The common ADR methods are arbitration, mediation, minitrials, private trial, and negotiation (an informal settlement) between the parties.

TRUE-FALSE QUESTIONS

Indicate whether each statement below is true or false by circling T or F in the column on the left.

1. T F At the conclusion of a civil trial, jurors render a motion.

2. T F The examination of potential jurors to determine their qualifications to serve as jurors is called a voir dire examination.

3. T F Grand jurors render a verdict.

4. T F The official decision of the jury, which is entered into the court record, is called the award.

5. T F The term litigation refers to a lawsuit.

6. T F A major reason for not bringing a lawsuit is that the person you are thinking about suing may be judgment proof.

7. T F In order to understand your options fully, the first step in deciding whether or not to sue is to discuss your legal problem with a friend.

8. T F The failure of the defendant in a civil lawsuit to acknowledge receipt of a summons gives the plaintiff the right to a judgment by default.

9. T F The pretrial steps taken by the plaintiff and the defendant to learn in detail the nature of the other’s claim in a civil lawsuit is called direct examination.

10. T F If the plaintiff and defendant do not demand a jury trial in a civil lawsuit, the evidence in the case is presented only to a judge.

MULTIPLE-CHOICE QUESTIONS

Circle the letter of the correct answer.

1. An unwilling witness must be served with a

a. motion.

b. summons.

c. subpoena.

d. voir dire.

2. The questioning of a witness for the plaintiff by the attorney for the defendant is called

a. direct examination.

b. redirect examination.

c. cross-examination.

d. indirect examination.

3. When a judge advises the jurors of the rules of law that must be applied to the facts presented during a trial, the judge is

a. instructing the jury.

b. asking for a judgment on the part of the jury.

c. asking for a motion.

d. requesting a verdict.

4. In a civil action, the paper that contains the defendant’s statement of his or her defense is called a(n)

a. summons.

b. answer.

c. complaint.

d. award.

5. In a civil case, in order to “win,” the plaintiff must establish the truth of his or her claim by

a. proving the facts beyond a reasonable doubt.

b. cross-examination.

c. direct examination.

d. a preponderance of the evidence.

CHRONOLOGY

Rearrange the following events in the order in which they occur and re-write them on the line provided on the right.

Summons and complaint / 1.
Discovery proceedings / 2.
Attorneys’ opening statements / 3.
Answer / 4.
Presentation of evidence for the defendant / 5.
Verdict / 6.
Presentation of evidence for the plaintiff / 7.
Attorneys’ closing statements / 8.
Appeal / 9.

SHORT-Essay QUESTIONS

Answer each of the following questions in the space provided.

1. What are the differences among litigation, arbitration, and mediation?

______

2. What is an important difference between mediation and arbitration?

______

3. What is the purpose of discovery as a pretrial step?

______

4. List three discovery techniques used by attorneys.

______

5. What are some of the problems that the losing party in a civil lawsuit can encounter if he or she decides to appeal the decision of the lower court?

______

6. What are the advantages of an informal settlement through negotiation compared to litigation or to any of the alternatives to litigation described in Chapter 5?

______

7. What do you think are the main reasons for the backlog of cases in civil courts?

______

8. What do taking a case to Small Claims Court and using an alternative means to settle (i.e., arbitration or mediation) have in common?

______

ACTIVITY: DOCUMENT ANALYSIS

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF MONROE

WILLIAM JORDAN, Plaintiff

• against — Complaint

MARY MARTIN, Defendant

The plaintiff, by his attorney, Peter Leffer, complaining of the defendant, alleges:

1. That on or about the 6th day of July, 2005, the plaintiff was lawfully upon Monroe Avenue, at its intersection with Winton Road, which is a public highway in the City of Rochester, New York, and was in the act of crossing said street at the same time that an automobile, owned and operated by the defendant, was passing over and along Winton Road.

2. That said defendant so negligently and carelessly managed and operated said automobile that in sole consequence thereof and without negligence or fault on the part of the plaintiff, plaintiff was suddenly and without notice or warning thrown violently to the street by said automobile.

3. That by reason of the foregoing the plaintiff suffered great bodily injury and became and still continues to be sick, sore, and disabled, and was obliged to spend large sums in attempting to cure himself, and was prevented for a long time from attending to his business, and was otherwise injured to his damage One Hundred Thousand Dollars ($100,000).

Wherefore, plaintiff demands judgment in the sum of $100,000, together with the costs and disbursements of this action.

PETER LEFFER

Attorney for Plaintiff

Office and P.O. Address

Platt Building

No. 175 Main Street

Rochester, New York

Telephone: 716-389-1462

1. What is the purpose of this document?

______

2. What is the basis for this complaint?

______

3. In the legal process, a complaint often accompanies what other legal document?

______

4. What are the statements made in this complaint called?

______

5. When the defendant receives this complaint, what should she do?

______