Ch. 4: Dispute resolution

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Team Quiz

• Closed book/closed notes

• You may collaborate with your team

• You are responsible for the answers on your quiz

• You do not have to choose the same answers as your team

Pleadings

• Complaint

–Jurisdiction

–Facts

–Prayer for relief

Pleadings

• Answer

–Defendant admits/denies allegations

–Affirmative defenses

–Counterclaims

Service of process

• Complaint & Summons

• Waiver of service

• Default

Pretrial motions

• Dismiss: 12(b)(6)—failure to state a claim for which relief can be granted

• Judgment on the pleadings

• Summary judgment: no genuine issue of material fact, entitled to judgment as a matter of law

Statute of limitations

• Must file lawsuit reasonably soon after injury/damage.

• Why?

Alabama Statutes of limitations

• General, 2 years

• Medical malpractice, 1 year

• Contracts, 7/10 years

• Title to property: 20 years

Discovery

Discovery • Any information reasonably calculated to

lead to admissible evidence

–Privilege

•Attorney-client

•Work-Product

–Objections

•Overbroad, unduly burdensome, lacks relevance

Discovery methods

• Depositions

• Interrogatories

• Requests for admission

• Request for documents

Jury v. Bench trial

• 7th Amendment: “right of trial by jury shall be preserved”

• Doesn't create right to jury in civil cases

• Preserves it as it existed in 1791

action at law?

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Jury Trial

suit in equity?

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Bench Trial (no jury)

Jury selection

• Voir dire

–Challenge for cause

–Peremptory challenge

–Batson motion

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Evidence

Admissible evidence

• “All relevant evidence is admissible, except as otherwise provided by [law] . . . Evidence which is not relevant is not admissible.” Ala. R. Evid. §402

• Federal rule of evidence is essentially the same.

Witness reliability

• Generally goes to the weight of the evidence, not admissibility

• Admissibility: question of law

–Determined by judge

• Weight: question of fact

–Believability/credibility

–Determined by trier of fact

"Trier of fact"?

jury

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Admissible testimony –Personal knowledge

• If relevant

–Opinion

•Based on firsthand knowledge

•Helpful to trier of fact

–Expert opinion

• “a witness qualified as an expert may testify in the form of an opinion.”

Trial

• Opening statements

• Plaintiff’s case

• Defendant’s case

• Closing statements

• Deliberation/verdict

Post-trial motions

• Directed verdict

• New trial

• Judgment notwithstanding the verdict

–J.N.O.V.

Appeals • Questions of law only

• Briefs

• Oral Argument

– At court's discretion

• Actions

– Affirm

– Reverse

– Remand

Enforcement?

ADR

• Alternative Dispute Resolution

–Alternative to what?

LITIGATION!

What’s wrong with litigation?

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Discovery

Alternatives? • Negotiation

–Pro: cheap, fast

–Con: non-binding, may not agree

• Mediation

–Pro: less expensive, faster, 3d party may help sides agree

–Con: non-binding, expense of 3d party

• Arbitration

–Pro: binding, faster, less publicity

–Con: no appeal, expense of lawyers and arbitrators, potential bias

Why is arbitration important? • How many have signed an arbitration

agreement?

–Signed a contract?

–Bought a car?

–House?

–Credit card?

–Cell phone?

–“Dispute resolution”

Concerns with arbitration • Fairness

• California study: banks won 94% of arbitration cases

• Expense

• Pay up front

• Split cost of arbitrator

• Discovery

• None

Postell v. Merrell Lynch

• Estate of Robert Postell filed arbitration claim for mismanagement of brokerage account

• FINRA arbitration panel awarded Postell $520,000

• FINRA then sent all 3 arbitrators "black spot" letters

AT&T v Conception 131 S.Ct. 1740 (2011)

• Supreme Court upheld arbitration agreement & class action waiver

• Overruled California Supreme Court holding that contract was unconscionable

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Sony timeline • April 26, 2011: Sony gets hacked; 77

million accounts compromised

• April 27, 2011: AT&T v Conception decision

• April 27, 2011: First class action lawsuits against Sony filed

• September 2011: Sony changes Playstation network TOS to require class action waiver

Opt-Out

• Sony

• T-Mobile

• Others?