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CHAPTER 6: DISPUTE RESOLUTIONCHAPTER 6: DISPUTE RESOLUTION
UNIVERSITY OF TOLEDO LEGAL AND ETHICAL ENVIRONMENT OF BUSINESS Cohen
Introduction
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Introduction Negotiation Mediation Arbitration Litigation (Trials) Conclusion
INTRODUCTION Resolving disputes can be a very inexpensive a�air or one that puts the participants in �nancial ruin. It has been said by many that in a dispute that gets to court, there are two winners: plainti�’s counsel and defense counsel because both lawyers always get paid. Accordingly, this chapter is designed to help one think of court as the very last resort in settling a dispute. Every other legal means should be pursued to resolve a dispute prior to resorting to that very time consuming and costly endeavor known as litigation. The term most often used to describe dispute resolution outside of litigation is Alternative Dispute Resolution or ADR.ADR involves several high-level categories including from simplest and cheapest to most complex and costly, respectively: negotiation, mediation, and arbitration. Several subcategories exist (e.g. MedArb) that will also be discussed. But the ADR categories discussed herein are not exhaustive – several concepts will not be discussed (e.g. rent-a-judge). But in the unfortunate instance where litigation is unavoidable, this chapter will also look extensively at the trial court process with a speci�c focus on civil litigation.
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From commencement of the civil litigation process with the �ling of the plainti�’s complaint all the way through the appeal process, the chapter will provide step-by-step discussion, with overview of each critical phase and the implications to the plainti�, defendant, and counsel.
NEGOTIATION The �rst factor in negotiation is to identify the type of negotiation involved. Are you settling a dispute or in a deal making negotiation. Many of the same negotiation principles discussed herein will work not only for settling a dispute but also for deal making. However, this section speci�cally relates to settling of disputes. When business disputes exist that can be resolved through negotiation usually the parties have or had a working relationship and want to �nd common ground for a resolution of di�erences. Much research has been done on this topic related to negotiating for successful results. Academic researchers have created buzz phrases for their theories, such as “7 Strategies for Successful Negotiation” or “10 Tactics to Win a Negotiation.” These researched theories all have some merit and so this section will examine some common themes among the theories. At the end of this section, a critical thinking role-play will be used to employ some of these strategies in a controlled yet practical application. Common Themes. Adam Grant’s book “Give and
Take”1 indicates that a key to successful negotiation is sharing information. When a party provides revealing information that the other party deems of value, then trust is gain and reciprocity often follows with the other party providing revealing information, as well. Building trust does not require laying your total hand down on the table and being completely transparent, just putting something about yourself in plain view – such as information about your family or excitement over a planned vacation – can set a positive tone.
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Another common theme among researchers indicates that prioritizing outcomes is essential to negotiation. Most often, people consider the negotiated price to be the most important priority in any negotiation. But it is important to rank or prioritize desired outcomes in your negotiation. For example, it might be important to maximize your revenue or lower your cost but the timing of the payment may be of equal importance. Thus, the negotiator might be willing to lower or raise the price, in order to speed up or slow down the payment, respectively. In fact, sharing this type of information might lead to a better solution to both parties as cost might be a bigger issue than timing of
payment to the other side.2
Further, understanding the other party’s motives through extensive research also provides a solid foundation for better negotiation outcomes. For example, if the other party is interested in a long term mutually bene�cial business relationship, then approaching the negotiation from a fairness standpoint so that both parties end up in a win–win scenario is better than perhaps an ultimatum approach. The following key points of negotiation should be focused upon to gain clarity and get positive results:
Identify the issues that need resolution, attach a value to each issue and work speci�cally toward resolving the issues. Build the relationship with the other party to understand their issue. Identify shared values. Address divergent values directly. Focus on key facts, not on feelings. Avoid Red Herrings, which are issues that hold very little relevance or value to either party. Be respectful if not overly so to combat moving the negotiation into an unwanted phase (e.g. Arbitration or worse yet Litigation). Avoid rash decisions.
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Critical Thinking Case Study: Henrietta (H) entered into an agreement with Leonarda (L) for L to do construction on H’s house. The total price of the work was $50,000 and included replacing some windows on the �rst �oor as well as putting in white marble countertop in the kitchen among other things. When L �nished the work, she submitted a �nal bill to H for $11,500, when only $10,000 was owed per the original contract. $1,500 was attributable to a work order change. H was not happy with the additional charge of $1,500, and further, L had destroyed a �owerbed during the construction phase – a �owerbed that H didn’t really like though and was considering tearing down herself. L also installed two windows that were not originally ordered and the bevel on the white marble was too much – H wanted an edge. H wants to renegotiate the �nal payment to a lower �gure. Unfortunately, H’s husband works with L’s husband and they are all family friends. Using the key points of negotiation from above, describe how H might reduce the �nal amount paid without destroying the relationship over money. Avoid emphasizing facts that are not relevant to the issue of resolving the �nal amount due.
MEDIATION When negotiation fails to yield an agreement to resolve a dispute, then mediation may be in order. Mediation in a general sense involves bringing in a third party to help di�ering parties reach an agreement. Mediation generally has form and structure as well as a set timetable, which creates expectations among the participants. The process is not public and is generally con�dential to ensure privacy among the participants. Participation is voluntary unless mandated by contract or court order. The mediator is supposed to be an unbiased and neutral party to facilitate the mediation process through to conclusion with a desirable agreement for the parties. Because of the lower cost and reduced formality,
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mediation is seen as reliable alternative to arbitration and court. The reasons for utilizing mediation as an alternative dispute resolution method prior to both arbitration and court, in no particular order, are: Privacy – With rare exception, lawsuits become public once �led in court. Mediation remains private and out of the public domain, which when dealing with sensitive issues that can be in�amed by public scrutiny is generally desirable. Mutuality – In arbitration or court, the parties have very little control over the result of the dispute. In mediation, both parties have a say in the result and can walk away if they don’t like the result. In both arbitration, usually binding, and in court, the �nal result generally greatly favors one party over the other leaving one party seriously aggrieved. Expense – The mostly costly expense in litigation is the legal fee. When mediation is selected, then both parties generally split the cost of the mediator as opposed to paying for separate legal counsel. And as the mediation process is generally tightly controlled and much short than litigation, the cost is greatly reduced. Voluntary – Because mediation is voluntary, and the parties generally agree to the �nal terms to settle mediation, compliance with the �nal resolution is high.
Types of Mediation Mediators can follow di�erent processes and methodology. Mediators can use di�erent methods for con�ict resolution including narrative, transformative, evaluative, and facilitative approaches. The narrative approach is a more creative approach to mediation where focusing on the problem and creating a
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storytelling narrative around the problem helps the parties look for creative solutions to the problem rather than focusing on the individuals. Each party essentially tells the story behind the con�ict while the mediator tries to �nd the unbiased objective story that both parties can
agree with to resolve the con�ict.3
Transformative mediation4 sees communication as the key to resolving long-standing issues. Success is measured more by the process moving toward interpersonal responsiveness and constructive interaction while forming new understandings of self, situation, and possibilities. This can potentially lead to better self-worth and positive feelings toward the other side and more con�dence in making a self-determined decision. And the self- determined decisions may include a settlement but not necessarily so. There is a hyper focus on communication to identify opportunities for the parties to respond in ways that allow for meaningful decision-making. And two mediation methods often considered at spectral ends are Evaluative mediation and Facilitative mediation. Evaluative mediators focus on providing the parties with an evaluation of their dispute (usually court ordered) and directing them toward settlement, which often requires the “objective” mediator to express an opinion as to what might be fair or reasonable settlement. The Evaluative mediator acts, on the other hand, more or less as an advisor to both parties. Facilitative mediators avoid issue evaluation and simply try to facilitate party communication. Facilitators are more concerned with appropriate process than the mediation outcome. The facilitative mediator is focused on moving the parties toward a dispute resolution by providing a structure and
agenda for the discussion.5
Because di�erent mediation methods exist and varying mediator styles can lead to success, there is no “typical” mediation. Mediation rarely has speci�c or compulsory elements required by law, and this is a signi�cant contrast to arbitration and court. From a very high-level
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perspective, the following represents a general chronological outline as to how the mediation occurs:
Mediation rules and boundaries are established Each party provides story and context to the mediator that details the nature of the dispute Mediator helps identify the issues that need resolution Create objective not subjective criteria for a mutually bene�cial outcome Identify potential outcomes Discuss and prioritize outcomes Adjust expectations and �nalize outcomes Memorialize outcomes in an agreement
Individual mediators vary these steps to match speci�c circumstances, given that the law does not ordinarily govern mediators’ methods.
Mediation with arbitration (MEDArb) Mediation often has no legal “teeth” because it is usually consensual and either party may withdrawal from the process at any time. Thus, mediation has seen improved success when coupled with binding arbitration, which has been shortened to MEDArb. MEDArb starts like a typical mediation, but if mediation fails for any reason, the mediator becomes an arbiter and moves to formal arbitration with required participation and binding results. Nevertheless, mediation’s rate of success is largely dependent to the mediator’s unique role as someone who wields no power over the parties to coerce an outcome. MEDArb contract clauses can have the same strength as typical arbitration clause (see arbitration clause(s) below). The party’s awareness that the mediator might later act as a �nal arbiter may disrupt the mediation process. This can be resolved however by using a di�erent arbiter than the original mediator when moving into arbitration.
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ARBITRATION Arbitration is a method of dispute resolution where the disputing parties agree to utilize a 3rd party arbiter or arbiters to resolve the dispute outside the courts and in most cases be bound by the arbiter’s �nal decision. The arbiter(s) review the evidence provided by both parties, with signi�cantly less formality and rules than a court and then they impose a legally binding decision that is enforceable in a court of law. Arbitration is fairly common and has grown signi�cantly more popular since the mid-1970’s when the frequency and costs of litigation started to skyrocket. Arbitration is most often preplanned and is part of a contract that requires disputes to be settled through arbitration as opposed to litigation in the courts. A typical arbitration clause that is found in a contract might read as follows: “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.”6
On occasion, parties that cannot resolve a dispute who would rather go through arbitration than costly litigation will agree to arbitration in the middle of the dispute without any contractual or legal cause to do so. When the parties desire to engage arbitration without any contractual or legal cause to do so, then the following language agreed to by both parties may be signed to move arbitration forward: “We, the undersigned parties, hereby agree to submit to arbitration administered by the American Arbitration Association under its Commercial [or other] Arbitration Rules the following controversy: [describe brie�y]. We
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further agree that a judgment of any court having
jurisdiction may be entered upon the award.”7
Parties often seek to resolve disputes through contractually binding arbitration clauses because of potential advantages, real or imagined, over judicial proceedings. The list of advantages below is nonexhaustive but covers the most recognizable advantages:
Arbitration allows the parties to choose their own arbiters. So when the subject matter is complex and requires expertise, parties can select arbiters who understand the commercial implications of the dispute. Arbitration is usually faster than litigation because crowded court dockets, long discovery and stringent evidence rules often prolong the litigation process. Arbitration is a private process, generally, and therefore the proceedings are not subject to Freedom of Information Act records requests like litigation in the courts.
Conversely, arbitration also has disadvantages, which include:
Arbitration clauses in agreements are not always transparent and are often hidden (See cell phone contracts as an example). Mandatory and binding arbitration requires the parties to waive some of their constitutional rights to access the courts. So it’s hard to get a “bad” decision overturned. Although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays. In some legal systems, arbitration awards have fewer enforcement options than judgments; although in the United States arbitration awards are
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enforced in the same manner as court judgments and have the same e�ect. Arbitration requests can be more easily ignored than a complaint �ling in a court of competent jurisdiction. Discovery methods that have teeth in a court may be more limited or nonexistent. Unless the losing party complies with the arbitration award, a party seeking to enforce an arbitration award must go to court to get the arbitrator’s ruling con�rmed and enforced.
Federal and State courts may review arbitration decisions and arbitrations clauses, even when the parties agree to binding arbitration. However, the Federal Arbitration Act (Pub.L. 68–401, 43 Stat. 883, 9 U.S.C. § 1 et seq.) provides a framework for privately negotiated arbitration to be facilitated by removing judicial interference. The act applies in both state courts and federal courts where the transaction contemplated by the parties involves interstate commerce, which is regulated under the Commerce Clause powers granted to and exercised by Congress in the U.S. Constitution through Article I Section 8. In essence, The Federal Arbitration Act requires that when parties agree to arbitrate, they must do so and not go directly to court. As usual in law, there are exceptions to this rule, for example, when the arbitration clause itself is considered to be unconscionable. As the California Supreme Court speci�ed in Sanchez v. Valencia Holding Company, LLC that the Federal Arbitration Act (FAA) preempts certain types of unconscionability challenges to arbitration, it held that other challenges are permitted and must be decided based on state law. The case also rephrased the test for unconscionability in California, which was likely to open up more challenges to arbitration clauses especially in contracts of adherence (e.g. cell
phone contract plans).8
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Regardless, Section 2 of the Federal Arbitration Act legislates that arbitration provisions cannot be invalidated by the court unless the clauses are unconscionable or agreed to under duress.
LITIGATION (TRIALS) A number of Supreme Court cases have dealt with the implication of arbitration at the state level and whether or not the Federal Arbitration Act supplants state law, which it essentially does when applicable. Southland Corp. v. Keating, 465 U.S. 1 (1984), for example, established the applicability of the Federal Arbitration Act to contracts under state law. And even when the challenges are heard as to the legality of the arbitration clause, the arbitrator must hear the challenge �rst to the contract before
appealing to the court.9
Civil and criminal procedure represents a full semester in law school. But this section narrows the topic down considerably to only litigation in civil matters with a high- level overview of the process.
Complaint – Litigation Initiation To initiate litigation, a complaint must be �led. The party that �les the complaint is called the plainti�. In the complaint document, the plainti� must state or plead various elements in order for the complaint �ling to be proper, which in total, are the pleadings. In the complaint, the plainti� must plead that the court has jurisdiction over the matter, including subject matter jurisdiction and in personam jurisdiction over the defendant. When a complaint is �led in the proper court, then the court will automatically have in personam jurisdiction over the plainti� as the plainti� has subjected himself to the jurisdiction of the court simply by �ling the complaint. Further, the complaint must also indicate why the court is the proper venue to resolve the dispute. After these
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pleadings are alleged, then the complaint addresses the claim sets. Many complaints will allege more than one claim set. When alleging facts that arise to a legal claim, the plainti� must allege all the elements of the legal claim in order for the complaint to be su�cient to move the case forward. For example, in a contract claim, the plainti� must allege all the elements of a breach of contract, which include all the elements of contract formation. So, the plainti� must allege that there was an o�er, acceptance of the o�er, consideration, a breach of the contract, and damages as a result of the breach of the contract. If the plainti� fails to allege any one of those elements then the defendant my seek to have the complaint dismissed in a motion for failing to state a claim for which there is a legal remedy. For instance, if the plainti� fails to allege the he has been harmed and su�ered damages in a breach of contract, then without damages, there is no claim for breach of contract. When the plainti� �les the complaint, he will also serve a summons on the defendant that provides the defendant notice as to the nature of the lawsuit, where the lawsuit was initiated and when the defendant must answer.
Answer After the defendant receives the complaint with the summons, the defendant must submit an answer to the complaint. The answer must respond to each of the complaint’s pleadings with an admission, denial, or aver. Answers must usually be submitted to the court within 30 days, but each jurisdiction may have slightly di�erent time requirements. The defendant has a right to �le a motion to extend the time to plead for an additional 30 days and can continue to request the court for more time to plead depending on the circumstances. The answer must also include the defendant’s defenses. A failure to plead a defense to a plainti� claim may cause
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the defendant to lose the defense at trial. For example, in a breach of contract claim, if the defendant believes that the plainti� didn’t complete the work, then the defendant must plead it in the answer or lose the defense. The defendant must also �le any counterclaim he has against the plainti� in his answer. So for example, if the plainti� in a breach of contract claim pleads that the defendant did poor work in completing a project, then the defendant must also �le a counterclaim against the plainti� to collect any funds that may still be due and owing. If a counterclaim is �led against the plainti�, then the plainti� will be required to �le a reply against the defendant under similar rules and fashion like the defendant in the answer. The defendant may also need to �le a cross-claim against a 3rd party not yet mentioned already in the lawsuit as that party might be integral to resolution of the litigation.
Discovery The methods for discovery and in a general order are 1) requests for admissions, 2) interrogatories, 3) depositions, 4) requests for physical or mental examinations, or medical records. The parties’ �rst step is to ask each other for simple admissions to readily discoverable facts such as witness list with addresses and their relation to the case. Once the witness lists are exchanged, the parties will submit written questions to opposing witnesses, which are called interrogatories. Based on the written responses to the interrogatories, either party may elect to expand questioning by engaging the witness in a deposition, which is oral testimony based on direct questioning. Both interrogatories and depositions are given under oath and admissible in court. A deposition usually takes place at a lawyer’s o�ce with a stenographer in place to make a transcript of the witness interview. The o�cial deposition transcript is admissible in a court as evidence, usually to aid in the development for a motion for summary judgment (see pretrial motions).
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Lastly, in the case where mental capacity or physical condition of the plainti� or defendant is in question, then a party might request a mental or physical exam, or medical records related to the mental and physical capacity of the party. Discovery is designed to help the parties ascertain how strong their positions are in the litigation and help potentially foster a resolution in pretrial.
Pretrial and Pretrial Motions Pretrial conferences are designed to get the parties together, under judge supervision, to discuss the case process. Two types of pretrial conferences are fairly common: a status or early conference or an issue conference. Judges use a status conference to establish a time frame moving forward that establishes a time chronology from pretrial activities through trial date. After the status conference, if the case does not resolve itself with a settlement, then the judge might set a time for an issue conference, where the lawyers appear before a judge without their clients and try to agree on facts or and law. When the parties agree to facts or and law, these are considered stipulations. Stipulations may shorten a trial by eliminating witness testimony and evidence submission because these points don’t need to be proved at trial. If a settlement doesn’t take place through pretrial conferences, then the judge sets a date for the trial. After the pretrial conferences and a preliminary hearing but before a case goes to trial, either party may submit pretrial motions to the court that will attempt to eliminate witnesses, evidence, or have the case dismissed based on lack of a case. Pretrial motions are tools used more often in criminal matters by the parties to establish trial boundaries, such
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as what evidence and testimony is admissible, including legal arguments.
Voir Dire The United States judicial system refers to the process for juror screening as Voir Dire, which is derived from the Latin phrase verum dicere or to speak the truth. Prospective jurors are often gathered through voter or license registration and given notice to appear at speci�c courthouses. Jurors are questioned about their backgrounds in open court and potential biases before being chosen to sit on a jury. Counsel may eliminate an unlimited number of jurors from the �nal jury pool for cause, such as potentially racist or sexist attitudes displayed during questioning. Counsel also has the ability to yield peremptory challenges to jurors that eliminate the juror for any reason. Peremptory challenges are capped at four (4). A peremptory challenge may not be used to eliminate a juror solely based on sex,
race, age, sexual orientation, and other similar reasons.10
Trial Opening statements provided by counsel at the opening of a trial should stick to a chronological version of the facts that best describe and advocate for the client’s position. As the “average attention span has dropped from 12 minutes to 5 minutes…” says Neil Vidyarthi, “Attention Spans Have Dropped from 12 Minutes to 5 Minutes—How Social Media is Ruining Our Minds,” SocialTimes, December 14, 2011, attorneys should really limit these statements in time to avoid fowling the jurors with meaningless dribble that adds no value to the case. Rely on facts to create your version of events without being argumentative. Arguments can be made in favor of your client during the closing statements. Delivering a great opening statement is mostly an art form not a science but preparation is certainly one key to a good performance.
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Plainti�’s case requires that the plainti� prove the required case elements in order to win a jury verdict. Failure to prove any required element in the case could lead to a directed verdict or an opposing jury verdict. Plainti�’s counsel proves his case through evidence submission, including primarily the following types of evidence: direct physical evidence, direct witness testimony, or circumstantial evidence. Evidence is submitted to the jury through the witness stand. Evidence must be authenticated to be admitted, and usually “best evidence” is required. So for example, a witness in a debt collections case cannot testify that a �le or business record shows that the defendant is in default and owes money. This witness testimony is hearsay and violates the best evidence rule – the �le or business record needs to be submitted. Wahad v. Federal Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In re McLemore, 2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio App. 2004); Nebraska v. Ward, 510 N.W.2d 320, 324 (Neb. App. 1993). And the testimony is not su�cient by omitting the fact that it is based on a review of loan records, if the witness did not personally observe the underlying transactions. Hawaii Community Federal Credit Union v. Keka, 94 Haw. 213, 11 P.3d 1, 10 (2000). Thus, a witness cannot testify as to the truth of the matter asserted unless they have direct knowledge (the guy owes the money because I saw him take the money (admissible evidence) as opposed to the guy owes the money because I read a document that says he owes the money (inadmissible evidence)). Defense counsel has a right to cross exam the witnesses to dispute the evidence and create doubt in the mind of the jury. Defense counsel can ask the court to treat the witness as hostile and the rules of questioning are relaxed so that the defense counsel can ask leading questions. After plainti� rests its case, then defendant’s counsel may seek a directed verdict if the defendant does not believe that the plainti� has made a valid claim or proved its case. Defendant will often request a directed verdict in an attempt to shorten the trial and not present a defense.
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Defendant’s case follows a similar path as the plainti�’s. Defendant will present witnesses to contradict plainti�’s witnesses and submit evidence in accordance with the same procedural rules as plainti� as required in the speci�c court. After defendant’s case, the plainti� may also request a directed verdict to end the case prior to submission of the facts and jury instruction to the jury. With jury instructions, the American Bar Association writes that they are simply judge instruction to the jury about laws applicable to the case that should guide the jury’s deliberations. After the end of the defendant’s case, the judge will read instructions to the jury, which is commonly referred to as the judge’s charge to the jury. Jury instructions will include case issues and term de�nitions so the jury can process the facts. The judge will also discuss the standard of proof required to �nd guilt or liability as the case may be which is – “beyond a reasonable doubt” in a criminal case (99% likelihood of guilt) or “preponderance of the evidence” (50.01% likelihood of liability) in a civil case. The jury is the sole trier of case facts and is responsible for determining witness credibility. Jurors must base conclusions on the evidence as presented in the trial, not opening or and closing arguments – which are not evidence. Instructions also contain legal interpretation of the relevant laws that govern the case. Jurors must adhere to these instructions on the laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, jurors determine the facts while the judge determines applicable laws to be applied. Lawyers may request that certain instructions be given, but the judge makes the �nal decisions as to which instructions are provided. After the jury receives its instructions, it will then seek a judgment. In criminal cases, the jury must reach a unanimous guilty, not guilty or innocent verdict. If one or more jurors do not agree with the other jurors, then a
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mistrial may be determined whereby the defendant may be tried again. In a civil case, some states only require that 10 out of 12 or 8 out of 10 jurors �nd in favor of a party to �nd liability. Most civil cases, however, are resolved by unanimous verdict. As a matter or right, either party in a trial may appeal the jury verdict. In order to appeal a case however, the appealing party, known as the appellant or petitioner, must prove that the court made an error. For example, if a witness is on the stand and the witness testimony is not relevant but prejudicial, then an attorney might “object” to the judge’s admission of the evidence. If this evidence is admitted to the jury, then the objecting lawyer may have an appealable issue to submit to the appellate court. Thus, it is important for the trial attorney to be aggressive in questioning admission of evidence as it leaves a trail of appealable issues in the event that the attorney’s client loses at trial. The Federal Rules of Evidence speci�cally states under Rule 103:
Rule 103. Rulings on Evidence (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error a�ects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the speci�c ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an o�er of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or O�er of Proof. Once the court rules de�nitively on the record – either before or at trial – a party need not renew an objection or o�er of proof to preserve a claim of error for appeal.
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(c) Court’s Statement about the Ruling; Directing an O�er of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an o�er of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Plain Error. A court may take notice of a plain error a�ecting a substantial right, even if the claim of error was not properly preserved. A full and complete recitation of this statue may be found at Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1930; Apr. 17, 2000, e�. Dec. 1, 2000; Apr. 26, 2011, e�. Dec. 1, 2011. Written or verbal motions to suppress prejudicial evidence can be made prior to trial or at trial prior to the actual submission of evidence. But the actual motion must be made in order to secure an appealable issue, which can be reviewed after the trial court has ruled. And if the court has ruled on the evidence prior to submission to the jury and trial, then the evidence can be reconsidered at trial by the judge. And if the opposing counsel does not object to the submission of the evidence at the time in trial, then the opposing counsel cannot pro�er court error as a reason for appeal as the opposing counsel must preserve the appealable error at trial even though the trial court ruled otherwise prior to trial. Several cases have addressed these types of issues, see: United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987), Old Chief v. United States, 519 U.S. 172, 182, n.6 (1997), Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997), Huddleston v. United States, 485 U.S. 681, 690, n.7 (1988). Look up these cases to review and discuss various issues regarding admission submission as it relates to appealable issues.
CONCLUSION The lessons learned from this chapter should be manifold but can be broken down into a couple of major headers:
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Introduction
Negotiation
Mediation
Arbitration
Litigation (Trials)
Conclusion
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1) Litigation is expensive and complicated, and 2) Where possible, alternative dispute resolution through negotiation, mediation, or arbitration should be pursued where possible. The legal profession has an economic incentive to pursue litigation, where business has less incentive to pursue litigation due to the high cost. Accordingly, companies or individuals engaged in ongoing disputes should exercise prudence and exhaust all avenues of alternative dispute resolution prior to engaging a lawyer to commence litigation. If the company or individual in the dispute has developed a good relationship with an attorney, then consulting with an attorney prior to commencing the ADR is advisable.
