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Chapter Two The Court System & Dispute Resolution

COURT a tribunal established by government to hear and decide matters properly
brought to it 16*

A: The Court System

1) The Types of Courts States may vary in the names of the courts but only
certain courts can hear certain subject matters, for example CT small
claims court hears cases with damages under $5,000. General courts can
hear criminal & civil disputes, such as contract breaches a personal injury
claims and can serve as trial court for those cases. An appellate court is
usually a panel of 3 judges that review transcripts and evidence from
lower court proceedings.
JURISIDCTION the power of a court to hear and determine a given class of cases;
the power to act over a particular defendant
SUBJECT MATTER JURISDICTION judicial authority to hear a particular type of
case
ORIGIONAL JURISDICTION the authority to hear a controversy when it is first
brought to the court
GENERAL JURISDICTION the power to hear and decide most controversies
involving legal rights & duties
LIMITED (SPECIAL) JURISDICTION the authority to hear only particular types of
cases 16*
APPELLATE JURISDICTION the power of a court to hear and decide a given class
of cases on appeal from another court or administrative agency 17*
APPEAL taking a case to a reviewing court to determine whether the judgment of
the lower court or administrative agency was correct (parties-appellate, appellee)
REVERSIBLE ERROR an error or defect of court proceeding of so serious a nature
that on appeal the appellate court will set aside the decision of the lower court
AFFIRM action taken by appellate court that approves the decision of the court
below
REVERSE the term used when the appellate court sets aside the verdict or
judgment of the lower court

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REMAND term used when an appellate court sends a case back to trial court for
additional hearing or a new trial 17*

The Federal Court System (2-1 pg18)

U.S. Supreme Court
U.S. Courts of Appeals
Federal District Courts
*Specialty Courts*
Bankruptcy
Courts

Tax Court

U.S. Claims
Courts

Court of Military
Appeals

U.S. Courts of International

Trade

FEDERAL DISTRICT COURT a general trial court of the federal system

18*

EN BANC the tem used when the full panel of judges on the appellate court hears
a case
2) The Federal Court System the federal court system consists of three
levels of courts shown in the table above, these courts include,
a. Federal District Courts each state has at least one depending on
the population and caseloads, it is the general trial court for the
federal system, they are courts of original jurisdiction, and can hear
both criminal and civil (where U.S. is party), over $75,000 between
two citizens of different states or a case involving federal law,
constitutional or treaty violations 18*
b. U.S. Courts of Appeals Each of the 12 judicial circuits in the U.S.,
and one for D.C., has an appellate court. The 13 th federal circuit is
called the Federal Circuit and hears specialty cases. Any of these
circuit judges can review decisions on the federal district courts but
only when its heard by all 3 panel members is it an EN BANC 19*
c. U.S. Supreme Court Final court in the federal system. This court
can hear federal appeals, and state supreme court appeals when
there is a constitutional issue or when a state court has reversed a
federal ruling *the only court expressed in constitution* and serves
as trial court for ambassadors, public ministers or consuls and
cases involving two or more states 20*
WRIT OF CENTIORAI Order by the U.S. Supreme Court granting a right to review
by the court of a lower court decision
Small Claims Court courts that resolve disputes between parties when those
disputes do not exceed a minimal level; the parties represent themselves during
court proceedings 20*

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Sample State Court System (2-3 pg21)
State Supreme Court
State Appellate Court
General Trial Courts
*Specialty Courts*
Probate Courts
*Lesser Courts*
Justice Courts

Juvenile Courts
Municipal Courts

Family Law Courts

Small Claims Courts

3) State Court Systems

a. General Trial Courts most states have trial courts of general
jurisdiction and can be called, superior courts, circuit courts, district
courts or county courts. These courts hear both criminal and civil
cases and have general and original jurisdiction. Cases that dont
meet the requirements for the federal court system are usually
tried here. 20*
b. Specialty Courts a court with limited jurisdiction in most states
(juvenile)
c. City, Municipal, & Justice Courts lesser court with limited
jurisdiction, generally handles civil matters up to a certain value
($5,000) and misdemeanor offences such as traffic violations and
the trials for these matters
d. Small Claims Courts court to determine resolutions to minor
disputes, true small claims courts dont allow formal council for
partied involved In litigations and can be decided by justice of the
peace or city judges 20*
e. State Appellate Courts intermediate level court similar to federal
court of appeals, appellate jurisdiction, decisions of general trial
courts and below would appeal here21*
f. State Supreme Courts highest court I most states (aka court of
appeals NY, supreme judicial court ME & MA) primarily have
appellate jurisdiction but some states have original jurisdiction AZ,
they are required to hear death penalty cases but most must
submit for review, all decisions are final at this level unless federal
law or treaty is involved. 21*

B: Court Procedure
PLANTIFF party who initiates the lawsuit

22*

DEFENDANT party charged with a violation of a civil or criminal law in a

proceeding
PROSECUTOR party who originates a criminal proceeding

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JUDGE primary officer of the court
ATTORNEY CLIENT PRIVLEGE right of individual to have discussions with their
attorney kept private and confidential
JURY a body of citizens sworn by the court to determine by verdict the issues of
fact submitted to them 22*
COMPLAINT the initial pleading filed by the plaintiff in many actions, which may
states may be served as original process to acquire jurisdiction over the defendant
23*

PROCESS paperwork served personally on a defendant in a civil case

ANSWER what a defendant must file to admit or deny facts asserted by the
plaintiff
MOTION TO DISMISS a pleading that may be filed to attack the adverse partys
pleading for not stating a cause of action or a defense
DEMURRER a pleading to dismiss the adverse partys pleading for not stating a
cause of action or a defense
COUNTERCLAIM a claim that the defendant in an action may make against the
plaintiff
PLEADINGS the papers filed by the parties in an action in order to set forth the
facts and frame the issues to be tried, although, under some systems, pleadings
merely give notice or a general indication of the nature of the issues
DISCOVERY procedure for ascertaining facts prior to the time of trial in order to
eliminate the element of surprise in litigation
DEPOSITION the testimony of a witness taken out of the court before a person
authorized to administer oaths 23*
IMPEACH using prior inconsistent evidence to challenge the credibility of a
witness24*
INTERROGATORIES written questions used a discovery tool that must be
answered under oath
REQUESTS FOR PRODUCTION OF DOCUMENTS discovery tool for uncovering
paper evidence in a case
MOTION FOR SUMMARY JUDGEMENT request that the court decide a case on
basis of law only because there are no material issues disputed by the parties

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EXPERT WITNESS one who has acquired special knowledge in a particular field
as though practical experience or study, or both, whose opinion is admissible as an
aid to the trier of fact
VOIR DIRE EXAMINATION the preliminary examination of a juror or a witness to
ascertain fitness ta act as such 24*
OPENING STATEMENTS statements by opposing attorneys that tell the jury what
their cases will prove 25*
ADMISSIBILITY the quality of the evidence in a case that allows it to be
presented to the jury
DIRECT EXAMINATION examination of a witness by their attorney
CROSS-EXAMINATION the examination made of a witness by the attorney for the
other party
REDIRECT EXAMINATION questioning after the cross examination in which the
attorney for the witness testifying may ask the same witness other questions to
overcome effects of cross
RECROSS EXAMINATION an examination by their other sides attorney that
follows the redirect examination25*
1) Participants in the Court System plaintiff, defendant, prosecutors,
judges, jury. Jury of peers is decided9 by off service based lists such as
drivers license, voter registrations and unemployment 22*
2) Which Law Applies Conflicts of Law when a lawsuit is brought up not
only is there a question of which jurisdiction will hear the case, but what
law will be applied in determining the rights of the parties involved. The
principle in deciding if a state will enforce its state laws (forum law) or
some foreign law is called a Conflict of Laws because there are 50 state
court systems, federal and a high degree of interstate activity causing
questions to rise frequently. In determining which state has the most
significant contacts by the court considers the place of contracting,
negotiating, and performing, the location of the subject matter, the
residence, states of incorporation, and principle place of business of the
parties. General rules follow 22*
a. The state that the court is located governs the case on procedural
issues and rules of evidence
b. Contract litigations, court applies the law in which state the
contract was originally made for determining issues of formation.
c. Performance disputes & damages for nonperformance are generally
governed by the law of the state where the contract is to be
performed

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d. International contracts follow similar rules (CA court applies Swiss
law to contract made in Swiss) 22*
3) Initial Steps in a Lawsuit applies for most original jurisdiction court
cases23*
a. Commencement of a Lawsuit begins with filing a complaint
containing a description of the wrongful conduct & a request for
damages ($)
b. Service of Process once the plaintiff files, theyre responsible for
notifying the defendant(s) that the suit has been filed and must be
served with process (writ, notice, or summons) must be delivered
and includes a copy of the complaint and notification that the
defendant must appear & respond to the allegations.
c. The Defendants Response & the Pleading When the defendant can
file motions (dismissal or demurrer) and respond/deny the
allegations. All documents in the initial phase are known as
pleadings.
d. Discovery requires each party to name their potential witnesses &
provide each party the chance to question them, everything
including all evidence, character examinations and questions likely
to lead to admissible evidence. This section also includes the
deposition or testimony of any witness. If any testimony under oath
is contradictory they may impeach the witnesses credibility.
Written or video tapped depositions can be taken for discovery or to
have if they are unavailable for court. Other requests are medical
exams, written interrogations, and requests for production of
documents.
e. Motion for Summary Judgment only if the case has no material
facts in the dispute can file. Using affidavits or deposition testimony
obtained in discovery, the court can find that there are no factual
issues & decide the case as a matter of law.
f. Designation of Expert Witnesses There are rules for naming an
expert witness as well as admitting into evidence any study or
documents of the expert. (Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993)) the purpose of this is to avoid junk
science or the admission of experts testimony and research that
hasnt been properly conducted or reviewed by peers. 23*
DIRECTED VERDICT a direction by the trial judge to the jury to return a verdict in
favor of a specified party to the action 26*
SUMMATION the attorney address that follows all the evidence presented in
court and sums up a case and recommends a particular verdict be returned by the
jury

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MISTRIAL a courts declaration that terminates a trial and postpones it to a later
date, commonly entered when evidence has been of a highly prejudicial character
or when a juror has been guilty of misconduct
INSTRUCTION summary of the law given to jurors by the judge before
deliberation begins
JUDGEMENT N.O.V. or non obstante verdict (notwithstanding verdict) a judgment
entered after verdict upon the motion of the losing party on the ground that the
verdict is so wrong that a judgment should be entered the opposite of the verdict 26*
EXECUTION the carrying out of a judgment of a court, generally directing the
property owned by the defendant to be sold and the proceeds first to be used to pay
the execution or judgment creditor27*
GARNISHMENT the name given in some state to attachment proceedings
ARBITRATION the settlement of disputed questions, whether of law or fact, by
one or more arbitrators by whose decision the parties agree to be bound 27*
4) The Trial
a. Selecting a Jury citizens are chosen by the list pools and
questioned by the judge and lawyers to determine if they have a
biased or have any preformed opinions about the parties in the
case. Jury selection is called VOIR DIRE EXAMINATION. Lawyers
have the chance to remove juror who are biased and should be
challenged for cause which are unlimited but each party is allowed
six (6) eight (8) peremptory challenge to strike a juror for any
reason except race. 24*
b. Opening Statements when both parties summarize what their
case will be about and how they intend to prove it 25*
c. The Presentation of Evidence the plaintiff presents their cases that
can include testimony, medical information from exams, and
physical evidence. In the case of testimony this is where cross and
re-examinations are held. After the plaintiff rests their case the
defendant begins their case and the plaintiff can examine their
evidence and witnesses. 25*
d. Motion for a Directed Verdict means that the party has not
presented enough evidence to show that there is some right of
recovery under the law26*
e. Closing Arguments or Summation both the plaintiff and the
defendant, after finishing presenting their cases, make a statement
to summarize the case and urge the jury to reach a certain verdict.
f. Motion for Mistrial this is granted to avoid great injustices and
requires a new trial and jury, causes can be jury or attorney
misconduct

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g. Jury Instructions and Verdict after closing arguments, the judge
instructs the jury on which laws they can apply toward the case
when deciding the facts of the case in proving or disproving a claim.
A hung-jury or deadlock can also be ground for a mistrial.
h. Motion for New Trial; Motion for Judgment N.O.V.- non-withstanding
the verdict, if the verdict is clearly wrong based on law the court
can set aside the verdict and enter a judgment in favor of the other
party.26*
5) Post-trial Procedures - 27*
a. Recovery of Costs/Attorney Fees include filing fees, service-ofprocess fees, witness fees, deposition transcript costs, & jury fees.
Not included is compensation spent preparing and presenting the
case, attorney fees.
b. Execution of Judgment after the final judgment and all appeals
have ended, the losing party must pay the judgment. This is
accomplished by seizure and sales of the losing parties assets by
the sheriff according to a writ of execution/possession or
garnishments to the debtors pay on a regular basis until damages
are paid in full

C: Alternative Dispute Resolution (ADR)

27*

TRIAL DE NOVO a trial required to preserve the constitutional right to a trial by

jury by allowing an appeal to proceed as though there never had been any prior
hearing or decision.29*
MEDIATION the settlement of a dispute through the use of a messenger who
carries, to each side of the dispute, the issues and offers in the case
REFERNECE TO A THIRD PERSON settlement that allows a nonparty to resolve a
dispute29*
ASSOCIATION TRIBUNAL a court created by a trade association or group for the
resolution of dispytes among its memebers 30*
SUMMARY JURY TRIAL a mock or dry-run trial for parties to get a feel for how
their cases will play to a jury in a regular trial setting
RENT-A-JUDGE PLAN dispute resolution through private courts with judges paid
to be referees for the cases30*
MINITRIAL a trial held on portions of the case or certain issues in the case 31*
JUDUCIAL TRIAGE court management tool used by judges to expedite certain
cases in which time if of the essence, such as asbestos cases where plaintiffs are
gravely ill31*

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1) Arbitration Uniform Arbitration Act parties agree in advance to use
arbitration instead of litigation during the contract. Federal Arbitration Act
provides an arbitration clause in a contract relating to an interstate
transaction is valid, irrevocable, and enforceable.
a. Mandatory Arbitration some statutes require small claims to go
through arbitration by rule
b. Finality of Arbitration the decision is final per agreement and can
only be set aside when fraud or other wrong doing are clear in the
matter, if appealed its called trial de novo and is to preserve the
constitutional rights to a jury trial 27-29*
2) Mediation natural messenger carries dispute settlement claims from one
party to another and may make suggestions pertaining to the case that
may lead to accepted terms from both parties. This helps keep discussion
open when parties have entered stalemate 29*
3) MedArb the arbitrator acts as the mediator as well in this case and can
act as the messenger in unresolved issues. 29*
4) Reference to a Third Party when a third person or a committee makes an
out of court decision of the rights of a person(s) and often eliminates the
disputes or pursuit of remedies29*
5) Association Tribunals disputes that dont reach courts because both
parties belong to a group/association that has a tribunal that will dispose
of the matter. Trade associations commonly require members to employ
out of court methods to resolve issues30*
6) Summary Jury Trial dry-run or mock trial where lawyers make case in
front of 6 jurors. No evidence heard, no binding effects, helps gauge if trial
or settlement is required by reactions 30*
7) Rent-A-Judge parties voluntarily choose a referee judge to hear the case
and evidence and make a statutory decision that is legally binding and
can only be revered is an appeal in the appellate court has been granted 3031*

8) Minitrial when part of a case is disputed, sticking with lawsuit frame,

only disputed issues are taken to trial and submitted to the jury, can use a
retired judge to decide claim and both parties must agree if the decision
will be binding. 31*
9) Judicial Triage examining cases from a timeless perspective how sick
are they case by case basis, can be placed on inactive docket until
become ill, using triage 40% asbestos claims to trials since 1992 31*
10)
Contract Provisions contract to provide settlement options in future
disputes, can include provisions such as waiting periods before suits can
be filled and obligation clauses to continue performing duties during
litigation31*