ACCT 352 question

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Chapter 4

Courts and Alternative Dispute Resolution ACCT352 Sections 012; 015; 017 SPRING 2021

§1: Learning Objectives

At the conclusion of this Chapter you will be able to:

Describe state and federal court systems

Describe jurisdiction of state courts and federal courts

Describe types of decisions issued by US Supreme Court

Define subject matter jurisdiction, personal jurisdiction, standing to sue, in rem jurisdiction, and quasi in rem jurisdiction

Explain the use of arbitration and mediation, two nonjudicial methods of alternative dispute resolution

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§2: The Basics

Parties to a lawsuit

Plaintiff - The person who files a lawsuit

Defendant - The person who is sued

Lawsuit – a party’s request that a court resolve a dispute between that party and another

Jury – Decides the case – who wins/who loses

Jury listens to the FACTS as stated by the plaintiff and the defendant and determines which version of those facts is most believable

Judge – Oversees the case and, sometimes, decides the case

Judicial Review: A higher court's review of a lower court's decision. Also, the power of a court to review the actions of the executive and legislative branches of government

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems

Two Types of COURT SYSTEMS: State and Federal

Each court system has 2 TYPES OF COURTS:

Trial Courts and Appellate Courts

Trial Courts - This is where the case begins

Impanel juries

Hear (consider) evidence (e.g., oral testimony, documentary evidence)

Decide cases (i.e. who wins or who loses; who is guilty or who is not guilty)

Appellate Courts - Hear appeals from LOWER COURTS

Intermediate Appellate Court

Highest Court - This is where the case ends

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Two Types of Cases

The trial and appellate courts in each of these court systems handle 2 types of cases, civil and criminal

Civil law cases – involve the private rights of persons not crimes. Violations of theses laws are redressed through compensation of the affected person

Criminal law cases – deals with conduct harmful to society. Violations are crimes and are redressed by punishing the wrongdoer

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

State Court Systems

The 50 states, Washington DC, Puerto Rico, and the US Territories (Guam, Virgin Islands, and Northern Mariana Islands) have court systems established by their state constitutions

Typically include:

Trial courts

Limited Jurisdiction

General Jurisdiction

Appellate courts.

Intermediate Appellate Court

The state’s highest court

Judges are usually elected by voters; some are appointed.

American Bar Association’s Fact Sheet on Judicial Selection Methods in the States

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State Court Systems (Cont.)

State Court Systems

Trial Courts of Limited-jurisdiction (or Inferior Trial courts)

Courts that have jurisdiction to hear (i.e. the power to decide) only certain types of cases. That is, cases involving certain persons (e.g., juveniles), or certain subject matter (e.g., traffic violations or minor criminal matters (i.e. misdemeanors). For example:

Traffic Courts

Juvenile Courts

Justice-of-the-peace

Probate Courts

Family Courts

Small Claims Courts

Decisions of trial courts of Limited-jurisdiction are never final. These decisions can be appealed to a general jurisdiction trial court or, in certain circumstances, directly to an intermediate appellate court

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State Court Systems (Cont.)

State Court Systems

Trial Courts of General-jurisdiction

These are also trial courts but with greater responsibility

Authorized to hear cases that are not within the jurisdiction of limited-jurisdiction trial courts such as felonies (serious criminal case) and civil cases exceeding certain dollar amounts

Decisions of general jurisdiction courts are never final. These decisions can be appealed to an intermediate appellate court and sometimes directly to the highest state court (state Supreme Court)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

State Court Systems

Appellate Courts – Intermediate Appellate Court and the Highest Court

Intermediate Appellate Courts

Referred to as Appellate Courts or Courts of Appeals

Hear appeals from limited-jurisdiction and general-jurisdiction trial courts

This is not a re-trial

The appellate court is authorized only to review the trial court record to determine if there have been any errors at trial that would require reversal or modification of trial court decision

Parties “communicate” with the judges by filing legal papers called briefs and by an oral argument

Decisions of intermediate appellate courts are not final

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

State Court Systems

Appellate Courts

Highest State Court

Called “Supreme Court” in most states

Authorized to hear appeals from intermediate appellate state courts and, sometimes, directly from state trial courts

This is not a re-trial

The appellate court is authorized only to review the trial court record to determine if there have been any errors at trial that would require reversal or modification of trial court decision

Parties “communicate” with the judges by filing legal papers called briefs and by an oral argument

Decisions are binding on all state courts within its jurisdiction

Decisions of state supreme courts are final, unless the case involves a federal question (concerns the US Constitution or a federal statute so as to be appealable to the US Supreme Court)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

State Court Systems:

Delaware State Court System

Highest court is the Delaware Supreme Court

New York State Court System

Highest court in the New York State court system is the Court of Appeals. The New York state Supreme Court is a trial court

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

Federal Courts are established by Article III of the US Constitution which provides:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

Federal Court System consists of

Special Courts (limited jurisdiction)

US District Courts (Trial Courts)

Appellate Courts

Intermediate Appellate Courts (US Courts of Appeal)

US Supreme Court

Most federal court judges receive lifetime appointments from US President

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

Special Federal Courts (Courts of Limited Jurisdiction)

Like the state court systems, in the federal court system certain courts have jurisdiction to hear ONLY certain types of cases

Tax Court

Court of Federal Claims

Court of International Trade

Bankruptcy Court

Court of Appeals for the Armed Forces

Court of Appeals for Veterans Claims

Note: These are not all trial courts

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

US District Courts – Federal Trial Courts

These are the trial courts of the Federal Court System

They are trial courts of general jurisdiction

Hear all cases EXCEPT those heard by the Special (limited jurisdiction) federal courts

These courts serve geographical areas referred to as districts

Each state has at least 1 district

There are 94 district courts, 89 in the 50 states and 1 each in Washington DC, Puerto Rico, Guam, US Virgin Islands, and Northern Mariana Islands

Decisions are not final. They are appealable to the US Courts of Appeals (aka US Circuit Courts )

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

EXAMPLE: District Courts in New York State: New York State is divided into four judicial districts to be known as the Northern, Southern, Eastern, and Western Districts of New York.

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

Appellate Courts – Intermediate Appellate and Supreme Court

Federal Intermediate Appellate Courts - US Courts of Appeals

Also known as Circuit Courts

Serve geographical areas referred to as circuits

Each circuit is comprised of multiple states

Hear appeals from the district courts located in their circuit and from certain special courts and federal administrative agencies

Circuit courts cover twelve geographic regions, with a thirteenth court—the Federal Circuit—that has national appellate jurisdiction over certain cases.

Decisions of a circuit court of appeals are binding on all federal courts within its jurisdiction

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

US Courts of Appeals

The number of judges on the circuit courts range from 6 to 30, but appeals are usually heard by a 3-judge panel, but a party can petition the court for an en banc (or full court) hearing

How Do The Federal Courts of Appeals Operate?

Same as Intermediate Appellate courts in the State court system

Decisions are not final. They are appealable to the US Supreme Court

Fox v. Fcc (3-judge panel)

Peralta v. Dillard (en banc proceeding)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

United States Supreme Court:

It is the highest Federal Court and “highest court in the US.”

Located in Washington, DC

Nine justices (not judges) on the Court

Exercises discretionary review over all cases from lower courts:

Federal Courts of Appeals

Federal District Courts

Special federal courts

Highest state courts – What cases?

Petition for certiorari - filed to appeal to the US Supreme Court

Writ of certiorari - Notification that the Court will review a case

The Supreme Court’s decision is ABSOLUTELY final

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§3: State and Federal Court Systems (Cont.)

Federal Court System

United States Supreme Court

The US Supreme Court receives approx. 10,000 petitions for certiorari

Certiorari is granted in only 75-80 cases

Justices “vote” on what should be the Court’s decision

A written opinion is issued after the vote

Types of Decisions issued by the US Supreme Court (and other federal and state appellate courts) (Please refer to the Chapter 1 Lecture Notes, Slide #20)

Unanimous - Precedential

Majority - Precedential

Plurality – Questionable precedential value

Tie – Not precedential

Types of Opinions

Opinion of the Court

Concurring Opinion

Dissenting opinion

Per curiam

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement

Jurisdiction - The power or authority of a court to resolve a dispute

There are several interrelated types of Jurisdiction including:

Subject Matter Jurisdiction

Personal (In Personam) Jurisdiction

In rem Jurisdiction

Quasi in rem Jurisdiction

Original Jurisdiction

Appellate Jurisdiction

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Two MOST IMPORTANT categories of jurisdiction

Subject Matter Jurisdiction – The power to adjudicate the type of case before the court

Personal Jurisdiction (in personam jurisdiction) -The power over the parties in the case

Both state and federal courts must have each type of jurisdiction to consider the case (i.e. preside over a trial or an appeal)

If a court does not have subject matter or personal jurisdiction it must dismiss the case

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject-Matter Jurisdiction: The authority of a court to hear and decide a specific type of dispute.

Subject-matter jurisdiction is usually defined in the statute or constitution that created the court.

Subject matter jurisdiction is a critical issue in a case because oftentimes a party wishes to file a case in one or the other court system for one reason or another

Exclusive jurisdiction: Only one court (state or federal) has the power (jurisdiction) to hear the case.

Concurrent jurisdiction: Either the state court or the federal court can hear the case.

NOTE: There are two aspects to the Subject Matter Jurisdiction (SMJ) issue: 1) Are you in the right court (within the jurisdiction); and 2) Are you in the right court system. For example: Plaintiff and her husband reside in Newark, Delaware. Plaintiff files her divorce petition in Traffic Court in Delaware. Does the Delaware Traffic Court have SMJ over this case? No. Because Traffic Court’s jurisdiction is limited to traffic matters. The Family court in Delaware has SMJ over this divorce because it has ORIGINAL JURISDICTION over family matters such as Plaintiff’s divorce.

What if Plaintiff filed her divorce in the US District Court in Delaware? Does that court have SMJ over Plaintiff’s divorce?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject matter Jurisdiction - Federal Court System

Federal Courts have subject matter jurisdiction over cases in which there is

A Diversity of Citizenship OR

A Federal Question

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject matter jurisdiction – Federal Court System

Diversity of citizenship jurisdiction exists when

A case involves a plaintiff and a defendant who are citizens of different US states or one of these persons is a citizen of a US state and the other is a citizen of a foreign country

There must be "complete" diversity between the parties:

Example: If Jill, a citizen of Delaware sues Jack, a citizen of Iowa, and Mary, a citizen of NY, and Alice, a citizen of Delaware = No diversity because Jill and Alice are each Delaware citizens

AND a dollar amount exceeding $75,000

Each of these requirements must be met

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject Matter Jurisdiction – Federal Court System

Example: Jill, a Delaware resident sues Jack a Delaware resident for $80,000 = Jurisdiction for federal court? = No. Jill, plaintiff, and Jack, defendant, are citizens of same state, Delaware. Therefore there is no DIVERSITY of citizenship

Example: Jill a Florida resident sues Jack, a Delaware resident, for $80,000 = Jurisdiction for federal court? = Yes. Jill and Jack are citizens of different states and the amount in controversy, $80,000, is more than $75,000

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject matter jurisdiction – Federal Court System

Federal Question jurisdiction arises when a case involves the following, regardless of the amount of money in dispute or the citizenship of the parties:

US Constitution

Treaties

Federal statutes and regulations

Example #1: Jill a Delaware resident sues Jack a Delaware resident for $60,000 alleging Jack violated a federal employment statute = Federal court jurisdiction? = Yes because the case involves a federal question (i.e. a federal employment statute). Dollars/Citizenship do not matter

Example #2: Jill, a NY resident, sues UD alleging a violation of her US constitutional right = Federal Court jurisdiction?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject Matter Jurisdiction - State Court System

State courts have subject matter jurisdiction over ALL cases EXCEPT those cases over which Federal courts have exclusive jurisdiction (i.e. cases that ONLY a federal court can consider)

Federal courts have exclusive jurisdiction to hear cases concerning some but not all Federal Questions. Federal courts have exclusive jurisdiction over the following federal questions:

Federal crimes

Antitrust

Bankruptcy

Patent and copyright issues

Suits against the United States

Admiralty cases

Federal taxation Cases

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject Matter Jurisdiction - State Court System

Example #1: Jill lost her job and cannot pay her bills. She decides to file for bankruptcy. Can she file her bankruptcy petition in Delaware state trial court? Answer = No. Federal courts have exclusive jurisdiction over bankruptcy cases. Jill MUST file her case in a Bankruptcy Court which is a federal court

Example #2: Jack sues Jill for copyright infringement in Delaware state trial court = Jurisdiction for Delaware state court? No: Federal courts have exclusive jurisdiction over copyright cases. Jack must file his copyright infringement case in Federal court

Example #3: Jill, a Delaware citizen, wants to file a lawsuit against, Jack a California citizen, alleging Jack breached a contract with Jill in violation of Delaware law. Jill is suing Jack for $76,000. Can Jill file her lawsuit in Delaware state court?

Example #4: Jill, a Delaware citizen, wants to file a lawsuit against, Jack a California citizen, alleging Jack breached a contract with Jill in violation of Delaware law. Jill is suing Jack for $75,000. Can Jill file her lawsuit in Delaware state court?

Example #5: Jill, a Delaware citizen, wants to file a lawsuit against Jack, a California citizen, seeking $100,000, because Jack violated her copyright. Can Jill file her lawsuit in Delaware state court?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject Matter Jurisdiction – State Court System

State Courts have Exclusive Jurisdiction to hear

Cases involving a plaintiff and a defendant who are citizens of the same state with a dispute involving a state law

Cases involving citizens of different states with a dispute over state law and an amount in dispute that is not more than $75,000

Example: Jill, a Delaware citizen, files a lawsuit in Delaware state court against Jack, a Delaware citizen, alleging that Jack breached his contractual agreement with Jill in violation of Delaware law = Does Delaware state court have subject matter jurisdiction?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

If neither the state court nor the federal court has exclusive jurisdiction then the case can be considered by either the state or the federal court. This is referred to as Concurrent Jurisdiction

Example #1: Jill, a Delaware citizen, sues Jack a Pennsylvania Citizen for $100,000 alleging breach of Delaware contract law. This is a case over which the state and federal courts have concurrent jurisdiction. So Jill can sue Jack in either state or federal court

Why is there no federal court EXCLUSIVE jurisdiction?

Why is there no state court EXCLUSIVE jurisdiction?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Subject Matter Jurisdiction - State Court System

Example #2: Jill, a Delaware citizen, wants to file a lawsuit against, Jack a California citizen, alleging Jack breached a contract with Jill in violation of Delaware law. Jill is suing Jack for $76,000. Must Jill file her lawsuit in state court, federal court, or either?

Example #3: Jill, a Delaware citizen, wants to file a lawsuit against, Jack a California citizen, alleging Jack breached a contract with Jill in violation of Delaware law.

Example #4: Jill, a Delaware citizen, wants to file a lawsuit against Jack, a California citizen, seeking $100,000, because Jack violated her copyright. File in state, federal, or either?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Removal – The defendant’s limited right to remove (transfer) a case filed in state court to a federal court

If the case is first filed in state court, the defendant has the right to transfer it to federal court

But, the case can be removed only if the federal court will have subject matter jurisdiction once it is removed. In other words, if there is concurrent jurisdiction

Example: Jill and Jack are Delaware citizens. Jill sues Jack in Delaware state court alleging Jack breached their contract in violation of Delaware law. Delaware state courts have exclusive jurisdiction because the case involves Delaware law and Delaware parties. Jack has the right to remove the case but he cannot because the Federal court will not have jurisdiction

If the case is first filed in federal court, it must remain there

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Why would a defendant remove a case to Federal Court? (Does it really matter if the case is filed in state or federal court?)

The belief that the plaintiff citizen of a state would receive better treatment than the foreign defendant

The belief that federal judges are more competent

Federal judges are more experienced with cases involving Federal Questions

Speedier trials in federal court

Federal courts have a wider jury pool than state courts because the geographic area of a district court is usually greater than that of a state court

Case: Hertz Corporation v. Friend (US Supreme Court 2009); find it on Canvas in Files folder in Cases & Other Resources)

Issue: Is Hertz Corporation a citizen of California so that the case cannot be removed to federal court?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Personal Jurisdiction (In Personam Jurisdiction) - A court’s (Federal or State) jurisdiction over the parties in a case

Plaintiff - The person who files a lawsuit.

A plaintiff, by filing a lawsuit with a court, gives the court personal jurisdiction over her

Defendant - The person who is sued

A court has personal jurisdiction over any defendant who is located within state boundaries AND receives service of process

Service of process occurs when the plaintiff causes the complaint and summons (i.e. papers that initiate a lawsuit) to be served on the defendant

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

What if the defendant is NOT located within the state so that service of process could be effected within the state?

International Shoe Company v. State of Washington, (US Supreme Court (1945), find it on Canvas in Files folder in Cases & Other Resources).

Issue: Can Washington state court exercise personal jurisdiction over a company that is incorporated in Delaware and headquartered in St. Louis, Missouri where the only contacts with Washington state are the salesmen located there who sell to residents of the state?

Gucci America, Inc. v. Wang Huoqing (Northern District of California (2011), find in CM Textbook, pp. 70 - 71)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Long-Arm Statute: A statute that allows a state court to obtain personal jurisdiction (or Long-arm jurisdiction) over an out-of-state defendant. Even though the defendant is out-of-state, the court can exercise jurisdiction over the out-of-state defendant because the out-of-state defendant committed certain acts in the state

These acts constitute so-called “minimum contact” with the state which provides a connection to the state that authorizes the state court to exercise power over the out-of-state defendant

The following is an excerpt of State of Delaware Long-arm statute showing what Delaware considers minimum contacts:

(c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent:

(1) Transacts any business or performs any character of work or service in the State;

(2) Contracts to supply services or things in this State;

(3) Causes tortious injury in the State by an act or omission in this State;

(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State . . . .;

(5) Has an interest in, uses or possesses real property in the State . . . .;

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Examples of minimum contacts that would allow a Delaware state court to exercise long-arm jurisdiction over non-residents:

An out-of-state defendant visiting Delaware and entering into a contract with a Delaware company

An out-of-state defendant visiting Delaware and injuring a Delaware citizen

In each of these examples, a Delaware state court can obtain personal jurisdiction over the out-of-state defendant via Delaware’s Long Arm statute because by entering into the contract and by injuring the Delaware resident, the out-of-state defendant has had minimum (but sufficient) contacts with the state of Delaware

MacDermid, Inc. v. Deiter (US Court of Appeals for the 2nd Circuit (2010), find it on Canvas in Files folder in Cases & Other Resources)

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Other Important Jurisdiction Concepts

In rem jurisdiction: Jurisdiction over the property. Court has jurisdiction to hear a case because the property is located in the state in which the court is located

Does not matter what state the parties reside in, the court has jurisdiction over them because the property is located in that state

Quasi in rem jurisdiction: Allows a plaintiff who obtains a judgment in one state to enforce the judgment in another state by attaching property (real or personal) of the defendant located in that other state

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§4: Jurisdiction – Important Judicial Requirement (Cont.)

Other Important Concepts: Standing and Venue

Standing to Sue: A party must have a sufficient stake in the dispute to justify seeking relief through the court system. So even if a court has jurisdiction it will not consider a case if plaintiff has no stake

Example: Mary is injured by drunken driver Tom. Mary refuses to sue Tom. Can Mary’s fiancé, Bill, sue Tom?

Venue - The most appropriate geographical location for a trial to be held and from which a jury is selected. This is usually where important events relating to the case have occurred

Example: Mary lives in Dover. She ran a traffic light in downtown Newark, DE. Is Dover or Newark the proper Venue?

Venue can be changed by agreement of the parties or court order

Why change venue?

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§5: Alternative Dispute Resolution

Alternative Dispute Resolution (“ADR”)

Litigation is expensive and time consuming. Years may pass before a case is tried due to the backlog of pending cases in many courts

ADR methods are inexpensive, relatively quick, and give parties more control over process

Most common ADR methods:

Mediation

Arbitration

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§5: Alternative Dispute Resolution (Cont.)

Mediation: Utilizes the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute

Oftentimes, mediation is initiated by order of the court after the lawsuit is filed

The mediator helps the parties settle their lawsuit

The mediator does not and cannot decide who wins or who loses

If mediation is unsuccessful, then the lawsuit proceeds

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

§5: Alternative Dispute Resolution (Cont.)

Arbitration: Utilizes an arbitrator (a neutral third party or a panel of experts) who hears a dispute and, like a judge or a jury, decides who wins and who loses

The arbitrator’s decision, referred to as an award, by agreement of the parties can be

Nonbinding – The parties can file a lawsuit in a court, or

Legally binding – The parties cannot pursue a lawsuit, but the award can be appealed

Many commercial contracts contain an arbitration clause which specifies that any dispute arising from the contract will be submitted first to arbitration rather than to a court

May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.