1 - Foundations of Law and Ethics

Topic 1: The Fundamentals of Law in America

1.1Learning Objectives

Learning Objectives

1. Relate the basic purposes of the law and the sources from which U.S. law stems.

2. Identify different schools of jurisprudential thought and describe the basic tenets of each.

3. Describe the role and function of the U.S. Constitution, especially as it relates to business.

4. List and categorize the different courts that operate in America.

5. Distinguish between different types of jurisdiction of courts and where different courts are allowed jurisdiction.

6. Identify the role of standing, ripeness, and venue in substantiating a lawsuit.

7. Relate who the parties to a lawsuit are and the proceedings they follow in preparing for a lawsuit.

8. Describe the role of discovery in a lawsuit and what it entails.

9. Describe the process by which a jury in a lawsuit is selected.

10. Summarize the steps of a typical court trial and what happens in each step.

11. Explain the process by which court decisions may be appealed to a higher court and describe the possible outcomes of an appeal.

12. Identify and compare methods of dispute resolution which may be used to avoid the trial process.

1.2Introduction to Law

David Parker discussing the Fundamentals of Law

Purpose and Function of Law

Law in a democratic society is a set of rules for human behavior established by a legitimate legislative authority which has binding force upon citizens. The purpose and function of law is to:

1. Prevent undesirable behavior – deter crime;

2. Facilitate private arrangements between individuals – allow for contracts;

3. Settle private and public disputes – establish dispute resolution systems;

4. Determine procedures for changing the law – provide legislative processes;

5. Regulate the institutions of state to protect individual freedom – create constitutions;

6. Keep the peace – allow for orderly protest;

7. Remedy social injustice – prevent discrimination;

8. Facilitate planning – allow debate on change; and

9. Provide for orderly change in government – establish democratic electoral systems.

To be effective and legitimate, law must be seen as fundamentally fair, flexible, and applied equally to all persons or entities.  A set of enforceable rules - law - is specific for each jurisdiction.  For example, law may consist of a nomadic tribe’s unwritten code of behavior, a U.S. state's seatbelt law, a European nation's code, or a U.S. court decision.  United States law is a combination of international treaties, the Constitution, federal law, state law, local law, common law, traditional civil law, and published court decisions.

Common Law

U.S. law is based primarily on the English and American common law. Common law, sometimes called "judge-made" law, is the compilation of hundreds of years of judges' decisions determining the outcome of cases. Over time, these opinions formed a body of law which established a framework for determining the elements, and associated remedies, for various causes of action from contract disputes to crimes to family law cases.

Precedent and Stare Decisis

The term precedent refers to a rule or principle of law which has been established in a ruling by a court of higher authority, such as an appeals court or the Supreme Court.  Lower courts are bound to adhere to the decisions made by a higher court on a similar legal matter.  This promotes uniformity, fairness, and some measure of predictability.  This principle is known as “stare decisis,” which is Latin for “to stand by things decided.”  Because a judge is bound by these previously-made decisions, this is referred to as binding precedent.  For example, in a recent case from Indiana, Walgreens allowed one of its pharmacists to have improper access to his former girlfriend’s prescription records.  The jury found that Walgreens had violated the Health Insurance Portability and Accountability Act (HIPAA).  The court of appeals affirmed the decision (http://www.in.gov/judiciary/opinions/pdf/01151503jgb.pdf).  Consequently, the case set a binding precedent in Indiana that an employer can be held liable for HIPAA violations by its employees.  It also established a persuasive, but not binding, precedent for other state and also federal courts to make the same decision.

However, decisions made by a low-level court do not become binding precedent on courts of higher authority, like a court of appeal or Supreme Court.  For example, suppose a state court in Utah rules in a civil case that a hairdresser must refund the price of a haircut to a consumer if the consumer is not happy with the haircut.  If the hairdresser appeals the matter to a higher court, the appeals court has no obligation to defer to the lower court’s decision.  In other words, the lower court’s decision is not binding precedent for the higher court.

Civil Law

In addition to the common law, U.S. law is also influenced by the civil law of Europe. In civil law jurisdictions, like Louisiana – which is based on French civil law – legal principles and rules derive from enacted statutes, not case law.

Res Judicata

Another fundamental principle of law is the concept of res judicata (Latin for “a matter judged”).  Res judicata is the doctrine that a court's final judgment on the merits of a case is conclusive, and the disputed matter cannot be raised again in court.  The res judicata doctrine allows a party to litigate a civil lawsuit for money damages only once.  In other words, the final judgment of the court means the matter has been finally decided.

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1.3Jurisprudential Thought

The development of U.S. law can be accounted for by experience, but also by reference to several philosophical or scientific theories. The study and theory of law is known as jurisprudence. Below are several schools of jurisprudential thought which shape our understanding of the law.

Schools of Jurisprudential Thought

Natural Law

The view that all persons have inalienable, natural rights is found in the natural law school of thought.  Inalienable rights are those inherently possessed by all persons and which may never be taken away.  Under this view, there exists a higher or supreme universal law, which governs all mankind, and its overarching and immutable principles must be reflected in legislation - created statutory law. For example, U.S. businesses with operations abroad often hire foreign employees. Under the natural law school of thought, the same laws that protect U.S. employees should apply to foreign employees as well. This broad view of human rights is reflected in the U.S. Constitution, the Magna Carta, and the U.S. Nations Charter.

Historical Perspective

Under a historical perspective school of thought, law is seen as the summation of the rules governing social customs and human experience over time. Law changes in relation to society’s changing rules and customs. A subscriber of the historical school is more likely than those of other schools to follow precedent to solve contemporary issues.

Irrational Forces

The irrational forces perspective school of thought provides that law is sometimes the result of societal reactions to unique events and is not founded upon reason. In other words, the law is a “knee-jerk” response by a legislative body to some stimuli. For example, some have argued that because many of the protections articulated in the Sarbanes-Oxley Act - which was designed to remedy accounting and other fraud in the corporate world - were already in place under pre-existing statutes, it was the product of political forces rather than reason.  Those forces demanded that Congress “do something.”

Legal Realism

Another view of law is the legal realism school of thought. Legal realists hold that judges should consider social and economic factors in interpreting the law and not necessarily be bound by precedent. This school of thought holds that laws may never be enforced uniformly because of the differing personal characteristics and backgrounds of judges, and that the law must reflect society’s current circumstances. The reasoning goes that a female judge, for example, might be more inclined than a male judge to consider a legal decision's impact on women.

Sociological

An outgrowth of legal realism is the sociological school of thought which advocates for the use of a law as a means of redistributing wealth or promoting social justice. Law developed to prohibit discrimination - based upon race, gender, religion, or nation of origin - in housing and employment is a good example of this view.

Command

Some view laws as the means by which a ruling class maintains control of society. This is known as the command school of thought.  Under this view, the law is not influenced by social forces, but by the needs of the ruling elites, political or otherwise. For example, during times of war, the federal government has enacted draft laws that required men of a certain age to serve in the military if they met certain requirements.

Critical Legal Studies

Related to the command theory is the critical legal studies school of thought, which suggests that laws are a reflection of the sum of injustices of society and are used to maintain the power status quo by elites over the needs of the people. This school of thought advocates dismantling the scaffolding of hierarchical rules and replacing them with general concepts of fundamental fairness and environmental and social justice. For example, women often have difficulty legally proving that they have been raped because rape laws have mostly been written from a male perspective. Therefore, according to this school, a judge should overlook those laws and use his or her subjective decision-making powers to determine whether an assault occurred.

Law and Economics

The law and economics school of thought provides that laws are a function of economic forces. Adherents to this view suggest that law should be designed to promote “market efficiencies.” An efficient, productive and wealthy society is based on rules designed to promote that effect. For example, advocates of this theory suggest that our society should put an end to the practice of appointing free counsel to prisoners who bring civil suits. They believe that the case is probably not worth bringing if a prisoner cannot find a lawyer who will take the case pro bono or on a contingency-fee basis.

1.4The Constitution and Business

The U.S. Constitution is the supreme law of the land.

The Role of the U.S. Constitution

The supreme law of the land is the United States Constitution. Every law in the country must comply with the provisions of the Constitution or that law is void. The Constitution has two main functions: First, it establishes the three branches of the federal government and allocates the division of powers among them. Second, the Constitution enumerates the fundamental liberty rights of citizens and protects them from the government’s ability to restrict those rights. These enumerated rights, known as the Bill of Rights, are the first ten amendments of the Constitution.

The First Amendment

Perhaps the most revered of the fundamental rights guaranteed by the Bill of Rights is the First Amendment guarantee of freedom of speech, which prevents a governmental actor from prohibiting a citizen’s oral, written, or symbolic (e.g., arm band) expression. Speech that has a commercial purpose is less protected than political speech. Therefore, commercial speech may be subject to time, place, and manner restrictions which might not apply to public policy or political speech. For example, a city sign ordinance may lawfully prohibit a business advertisement sign on a residence, but may not prohibit a political poster in the same place.

Supremacy Clause

In addition to the Bill of Rights, the Constitution also contains a Supremacy Clause, which mandates that the Constitution and federal law, treaties, and regulations are the highest laws of the land and have priority over state law. This is known as the preemption doctrine.

Commerce Clause

The Commerce Clause of the Constitution gives Congress the power to regulate commerce among the states, among the Indian tribes, and with foreign nations. Traditionally, the Commerce Clause was interpreted narrowly, but under the affectation doctrine, virtually all commerce conducted in the United States comes under the purview of federal law. The affectation doctrine is the notion that any commerce that has a substantial effect upon commerce between states will come under Congressional authority. It is important for business entities to recognize that even when a business activity is local, it may be governed by federal law. However, through the police powers reserved to the states by the Constitution, a state also has the power to regulate commerce within its borders, subject to the preemption doctrine.

Due Process Clause

Another Constitutional provision that has implication for business is the Due Process Clause. The government cannot deprive a citizen of life, liberty, or property without giving him or her notice and an opportunity to be heard before a neutral arbiter. This is known as procedural due process. For example, before a state government can terminate a person’s driver's license, it must provide an opportunity for the driver to object or defend him or herself. The concept relates to the fundamental fairness of any government or legal proceeding involving the rights of a citizen.

The second component of due process is substantive due process. This is the notion that government statutes must be clear and understandable to the reasonable person, limited in their scope, and designed to further a legitimate governmental purpose. A law will violate substantive due process if it is arbitrary. Usually laws governing business practices are reasonably related to a legitimate governmental purpose.

Equal Protection Clause

Finally, the Fourteenth Amendment provides that the laws of the U.S. must be applied equally to all its citizens. This is known as the Equal Protection Clause. Importantly, the courts have concluded that corporations are protected by it too.

Three Constitutional Tests

When laws, promulgated by a governmental actor, treat citizens differently, the courts employ three tests to determine if the law is legitimate:

1. Strict scrutiny test

2. Intermediate scrutiny test

3. Rational basis test

Strict Scrutiny Test

First, if a law distinguishes between citizens based on a class of persons, it will be constitutional only if designed to achieve a compelling state interest. This is known as the strict scrutiny test.  For example, a state's interests in having inmates cut their hair—such as prison security, identification of inmates, the impact of long hair on industrial safety, and general concerns about hygiene—are compelling governmental interests

Intermediate Scrutiny Test

Second, when a law curtails a citizen’s exercise of rights based upon protected classifications such as gender or age, it must be substantially related to important objectives to be valid under what is called the intermediate scrutiny test. For example, in the federal government’s effort to lower the number of illegitimate teen pregnancies, it is justified in creating a law that punishes men but not women for statutory rape, since only females can become pregnant.

Rational Basis Test

Finally, the rational basis test will allow for treatment of citizens in a disparate way in matters of economic or social welfare, if there is a justifiable reason or a rational basis for the government action. For example, the federal government is justified in granting government subsidies to farmers but not to those in other occupations. As written, the tests for determining if a law complies with the Equal Protection Clause seem straightforward, but in application can be very complicated.

1.5Courts in America

Figure 1.1: Lady Justice symbolizes the fair and equal administration of the law. (Image courtesy of  Rae Allen )

Legal controversies in the United States often result in litigation in the courts. Under the U.S. court system, there are two different court frameworks where disputes may be resolved: the federal and the state courts.

Federal Courts

Under the federal system, the highest court in the land is the United States Supreme Court, which sits in Washington, D.C. The Supreme Court is comprised of nine justices who are appointed by the President and confirmed by the Senate and who serve for life. One justice is appointed to serve as the Chief Justice. The Chief Justice plays a critical role in assigning which justice will draft the controlling opinion—decision—of the court in a case. The Supreme Court is an appellate court, which hears cases that have already been heard in the lower federal appellate courts and state supreme courts. Under the doctrine of judicial review, the Supreme Court has the power to declare any law unconstitutional, or in other words, not consistent with the rules established by the Constitution. Because its decisions are final, the Supreme Court holds great power to shape both law and society.

The federal courts also include the “inferior” courts as established by Congress. These inferior courts include the federal appellate courts, known as Circuit Courts, local U.S. district courts, and courts that hear special cases like admiralty and bankruptcy issues. Below is a chart that shows the structure of the U.S. federal court system:

Figure 1.2: Structure of the U.S. Federal Court System

State Courts

State courts are usually set up in similar manner as the federal court system. Each state has a supreme court that is the final arbiter of state law. Most states have one or more intermediate appellate courts that review decisions arising out of the local district courts. California has six intermediate appellate courts, with 105 justices serving, while the state of Wyoming has none. The local state district courts include courts of general jurisdiction, but also courts which have a special purpose, like courts which exclusively handle family law or small claims matters.

The power of these courts to hear cases will be discussed in the next section.

1.6Court Jurisdiction

Before a court may hear a case, it must be established that the court has authority over the matter in dispute. This authority is known as jurisdiction. There are courts of general jurisdiction; for example, state district courts may hear many different types of cases, ranging from contract disputes to tort claims. Courts of limited jurisdiction, on the other hand, are empowered only to hear controversies of a specific nature. For example, as noted above, federal bankruptcy courts are the only courts authorized to hear bankruptcy cases, and at the state level, only probate courts may hear wills and trust disputes.

Types of Court Jurisdiction

Generally, there are two types of court jurisdiction: 1) subject matter jurisdiction and 2) personal jurisdiction. Jurisdiction over the subject matter, sometimes called in rem jurisdiction, means the court has authority to hear the case because it has jurisdiction over the property involved in the controversy. For example, a dispute arises over the ownership of a boat docked in San Diego, California, and both parties in the dispute are residents of Nevada. In this case, the California state court has jurisdiction to hear the dispute because the property is located in California.

Personal jurisdiction, or in personam jurisdiction, refers to the power of the court to exercise authority over the parties in the lawsuit. For example, a state supreme court has jurisdictional authority over all the residents and businesses within the state.

When a party submits a complaint to a court, he or she agrees to be subject to a court’s jurisdiction. A defendant becomes subject to a court’s jurisdiction by way of a summons—a legal notice of the complaint, usually delivered in person or to the place of the defendant’s residence. The power of courts to exercise personal jurisdiction over persons not living within its jurisdiction has expanded over time. Most states have so-called long-arm statutes, which allow a court to exercise jurisdiction over a non-resident person who has developed “minimum contacts” with the state by way of business interests, travel, or other factors, as long as principles of fundamental fairness are not violated. For example, the state of Oregon has personal jurisdiction over a Utah resident who caused a car accident in Oregon.

Jurisdiction Limits

In the federal courts, jurisdiction is limited to two situations: First, there must be a federal question present in the case. That is, the plaintiff’s case must include some reliance on interpretation of the Constitution, federal law, or international treaty. For example, the state of Oregon has personal jurisdiction over a Utah resident who caused a car accident in Oregon. Second, a case may also be heard by a federal court if there is diversity of citizenship among the parties to the dispute. This usually requires that the parties live in different states and the case has over $75,000 at issue. For example, George, an Alabama resident, is driving his car in Alabama when he negligently hits and totals an $85,000 car driven by Michelle, a Tennessee resident. Because the parties reside in different states, Michelle can sue George and bring her case in federal court in Alabama. Unlike federal courts, states courts are not limited to federal question or diversity of citizenship disputes and have broad jurisdiction to hear many different types of cases.

Under the principles of jurisdiction, several different courts could hear a particular case. This is known as concurrent jurisdiction. For example, a case with parties in West Virginia and Utah could be brought in a state district court in West Virginia, a state court in Utah, or in a federal court in either jurisdiction. This can lead to what is known as forum shopping—searching for a court of jurisdiction that will most likely render the best result. For example, if two states have jurisdiction, a plaintiff may choose to bring litigation in the state that has law most favorable to his or her cause, or where courts have a reputation for acting in a way the plaintiff favors.

1.7Legal Concepts: Standing, Ripeness, and Venue

Konrad Lee, J.D. discussing Standing

Standing

A party may bring a suit in court only if he or she has a personal stake in the outcome of the controversy. This is known as standing. In other words, the party must be “aggrieved” by some threatened or actual harm and may not file a suit in which he or she has suffered no injury. For example, Susan, John’s friend, may not file a lawsuit to enforce a contract between John and Tim, as she is not a party to the contract. There are exceptions, as in the case of environmental groups, which are granted standing to challenge harms to the environment, not on a claim of specific damage to any ascertained person, but on the notion of general public harm.

Ripeness

Konrad Lee, J.D. discussing Ripeness

Under the doctrine of ripeness, courts in the U.S. will not offer advisory opinions on supposed controversies which have not yet occurred. In other words, the facts of a case must have developed into an existing controversy warranting judicial resolution before a court may hear it. The court systems of some countries allow for the “what if” lawsuit; the idea being that knowing how a court intends to rule on a matter may allow the parties to avoid conflict in the first instance. This is not the case in the U.S., as an actual controversy must exist before a court will hear legal claims.

Venue

Konrad Lee, J.D. discussing Venue

Where a trial takes place is called the venue. Notwithstanding forum shopping, cases usually are heard as near to the location of the parties as possible for reasons of judicial economy and common sense. However, sometimes circumstances will dictate that a trial will occur outside of a normal venue. For example, if a party feels a judge is biased against her or that no impartial jurors can be found in the community, a fair trial may be impossible.  In such cases, a motion for a change of venue may be granted. This was the case of police officers accused of beating Rodney King in Los Angeles in 1992. The officers were successful in a change of venue motion in their criminal trial.  The case was shifted to Ventura County on the theory that no jury in Los Angeles could be impartial to the officers because of the widespread publication of a video tape showing the beating. Interestingly, the officers’ acquittal in Ventura County sparked the now-famous riots in south central Los Angeles and prompted a debate over venue rules.

In the next topic we will discuss the trial process.

1.8Initiating a Lawsuit

Under the U.S. legal system, parties who are in dispute may bring cases before a judge or jury for resolution. The person who files a complaint in a civil case—a case which involves a dispute between private parties—is called the plaintiff, while the person at whom the complaint is directed is known as the defendant. In a criminal case, where a defendant is accused by the state of violating criminal law, the complaining party is called a prosecutor. The U.S. court system is an adversarial system, whereby the trial court sets the parties against each other in order to find the truth. This process is started by a plaintiff who files a complaint in the court. A complaint contains the cause of action: the recitation of facts and law under which the plaintiff requests relief. Most claims have a statute of limitation, which requires a complaint be filed within a specific time period from the date of harm or else a plaintiff loses the right to file a claim.

Upon the filing of the complaint, the clerk of the court notifies the defendant of the lawsuit and provides a timeline for the defendant to respond. The defendant may then file a request for dismissal, whereby he or she asserts that, even if all alleged facts are true, the law does not support a cause of action. It is at this point that frivolous lawsuits are terminated by the judge through dismissal. If that motion to dismiss is denied, the defendant files an answer—a document whereby the defendant either admits or denies the allegations of the complaint. Many courts require that the request for dismissal and answer be filed in one document to save time and resources. A defendant may, in the answer, challenge a court’s jurisdiction or assert what is called an affirmative defense.  Affirmative defenses are those that will excuse a defendant from unlawful behavior, such as permission, self-defense, or lapse of time. Sometimes the answer will contain a counterclaim or a cross-complaint, wherein the defendant raises his or her own allegations against the plaintiff, who now becomes a defendant as well.

If the defendant fails to file an answer, he or she will be in default and the court, on the theory the defendant has constructively admitted the allegations of the complaint, may enter a judgment in favor of the plaintiff. A defendant’s failure to answer may usually be remedied in some manner based upon a showing of a sound reason for the omission. A plaintiff must also file a reply to the defendant’s answer/cross-complaint or risk default.

Sometimes, a third party may have an interest in a case to which it is not a party—as in the case of a Native American tribe claiming interest in a custody suit involving an Indian child.  In those types of cases, the court may allow a third party to have an intervention in the case and achieve party status.

1.9Discovery

The Discovery Phase

Once the complaint and answer have been filed, the case moves to the discovery phase. Discovery is the process whereby each side is required to surrender information they have about the subject matter of the case. Discovery information may include written questions called interrogatories, depositions —oral statements—taken under oath, documents, exhibits, physical examinations, and so on. A trial court may order a party to provide information it does not wish to reveal by way of a subpoena—a court order directed at a person to appear in trial or produce a document or thing. Discovery is limited to information related to the controversy and prevents the disclosure of trade secrets, unless those secrets are central to the issue at trial.

Rationale of Discovery

The rationale behind discovery is threefold. First, it eliminates surprise. Second, it attenuates any advantage one party may have over another by way of financial resources or lawyer expertise and focuses the case on the facts. Third, it promotes settlement. The rationale for discovery rules is that with the majority of relevant facts available to all parties, including the judge, the merits of the complaint will be readily ascertainable, resulting in compromise and settlement in most cases. After discovery, most states require the parties to meet in a pretrial settlement conference or pretrial hearing, to determine if a compromise may be reached before the case goes to trial.

Motion for Judgment on the Pleadings

Almost all state and federal courts allow that if no settlement is reached, one or both parties can make a motion for judgment on the pleadings, whereby the judge is asked, based on the pleadings alone, to decide the case. The idea is that from the pleadings, a judge can determine that no legitimate claim exists. For example, Lisa alleges that John breached a contract and owes her damages. Their state’s statute of limitations requires that a lawsuit be brought within two years from the date that a contract was breached, and the pleadings show that Lisa’s complaint was filed after the two-year period expired. John may make a motion to have Lisa’s lawsuit dismissed based on the facts presented in the pleadings.

Motion for Summary Judgment

A party might also make a motion for summary judgment. In that case, a party contends that, based upon the pleadings and other facts revealed in the discovery process, there is no factual controversy and the judge can decide the case in its favor without a full trial. Like discovery, the availability of these motions promotes timely resolution of cases. One case example involving the issue of summary judgment is Murphy v. McDonald’s Restaurants of Ohio (2010), in which Elijah Murphy parked his car and chose to cross a snow-covered median rather than walk around it to get to the restaurant. The median was covered with snow that had been plowed from the drive-through lane and the parking area. He slipped on the ice, fell, and dislocated his ankle. Murphy sued McDonald’s to recover damages for negligence, alleging that the restaurant did not provide a walking path. McDonald’s moved for summary judgment. The court found that no factual issue existed and granted summary judgment to McDonald’s.

1.10Jury Selection

When the parties cannot settle a case, it will proceed to trial and jury selection. In a process known as venire, the clerk of the court issues a summons to potential jurors to appear before the court for jury duty. Jurors who are otherwise not excused are subject to a voir dire examination by the judge and the lawyers for the parties, to determine potential juror impartiality or qualification for jury duty. Jurors may be excluded for cause when it is obvious they cannot serve due to a relationship with one of the parties or an interest in the proceedings. Jurors may also be released from service due to a preemptory challenge. A preemptory is where a party may, without giving a reason, remove a juror from jury service. The idea is to give each side power to excuse jurors who may say the right thing during voir dire, but privately harbor a bias. The number of preemptory challenges is limited by statute. Race and gender may not be used as the basis for juror exclusion for either cause or preemptory challenge.  The idea behind voir dire and juror challenges is that, if the parties participate in the configuration of the jury, each will find the ultimate verdict more acceptable.

Juries are generally comprised of six or twelve jurors, with alternates, depending on the nature of the case. Once the jury has been selected, it is said to be impaneled. Sometimes, if the case is very important or controversial, a jury may be sequestered, wherein each juror is separated from family, jobs, and the community for the duration of the trial. Sometimes jurors are even prevented from reading newspapers or watching the news on television. One of the longest sequestrations of a jury was for 54 weeks in a 1973 defense contractor case in California.

1.11The Trial

Opening Statements

Once the jury is impaneled, the parties begin the trial with opening statements, which are usually straightforward recitations of the facts and legal issues that are central to the case.

The Plaintiff's Case

After opening statements, the plaintiff begins to present his or her version of the case, called the case-in-chief. It is the plaintiff’s responsibility to establish the facts sufficient to meet the burden of proof required by the law related to the claims.

Burden of Proof

In legal matters, four burdens of proof are applied in different contexts.

Prima Facie

First is the prima facie case. This means that, at first sight, the facts establish some truth of sufficient weight as to require a defendant to be called to answer for it. It is the lowest standard of proof.  If there are enough facts to meet this standard, then the judge rules that the defendant must respond to his or her accusers.

Preponderance of Evidence

The second burden of proof is preponderance of evidence, meaning, in the vernacular, more likely than not.  In other words, the evidence is of sufficient weight to likely be found true.

Clear and Convincing Evidence

The third, clear and convincing evidence, is yet a higher burden.  It mandates that the evidence must be so clear that it requires the assent of every reasonable mind.  In other words the proof is unambiguous.

Beyond a Reasonable Doubt

Fourth, the beyond a reasonable doubt standard, which applies only in the criminal law context, is where the evidence establishes that no other logical explanation can be derived from the facts.

Meeting the Burden of Proof

At trial, the plaintiff attempts to meet the relevant burden of proof by questioning witnesses through direct examination and submitting documents related to the examination. If the plaintiff’s case-in-chief does not establish the facts and law to support the claim, the defendant may make a motion for directed verdict, wherein he or she asks the court to decide in his or her favor without the presentation of a defense. If this motion is granted, the case is over. If the motion is denied, the defense may then conduct a questioning cross-examination of the witnesses in order to impeach them through showing they were misinformed, untruthful, biased, or incompetent. A plaintiff may then rehabilitate a witness's credibility through re-direct examination.

The Defendant's Case

After the plaintiff has finished his or her case, the matter then shifts to the defendant to show the facts alleged by the plaintiff are not true, that the law does not support the claim, or that the defendent's behavior was excused. Like the plaintiff, the defense may present witness testimony and documentary evidence. The matter then shifts back to the plaintiff to challenge the defense claims in what is called the rebuttal, and then back again to the defendant for a rejoinder.

Closing Statements

At the end of each party’s case, the judge closes the case to new evidence and gives the parties time to make a closing statement, wherein each party attempts to debunk the theory of the others' case and urge the jury to rule in its favor. The judge then instructs the jury on the law and the case goes to the jury for deliberation.  Deliberation is the jurors' careful discussion about the facts, as presented at trial, and about the law, as instructed by the judge.

Deliberation, Verdict, and Judgment

The process of deliberation may be a few minutes or may take several days. Upon reaching a decision, the jury issues a verdict—a complete finding and conclusion on the issues presented. The court then enters a judgment, the official decision, in accordance with the jury verdict. In extremely rare cases, if a judge discovers bias or jury misconduct he or she may reject or amend the verdict, under the procedure known as judgment notwithstanding the verdict. Additionally, upon motion by either party, a judge, if he or she believes the manifest weight of evidence did not support the jury verdict, may order a new trial.  In a criminal case, a jury may not reach the requisite number of votes to either convict or acquit a defendant.  This is known as a hung jury, and will result in a new trial.

1.12The Appeal

Most states have a statutory scheme that allows for a party who believes a mistake of law occurred at trial to seek review of the case by a higher court.  This is known as an appeal.  Errors of law may occur if prejudicial evidence was presented at a trial when it should have been excluded, evidence submitted at a trial was obtained through an illegal search and seizure, or a jury was not properly instructed by a judge, for example. An appeal is not a chance for the parties to re-try the case before a higher court. Indeed, the appellate court will not generally take any new evidence during the appeal, does not question the findings of fact made by a judge or jury, and confines its analysis to whether or not a legal error occurred. If the court finds no legal error, it will affirm the trial court judgment. If it does find legal error, it may reverse the ruling.  The appellate court may also order the case returned to the trial court to be fixed. This is known as a remand, and can include an order for a new trial. The appellate courts have broad discretion in making these decisions.

1.13Non-Judicial Dispute Resolution Alternatives

The trial process and appeal described above can be very expensive and time consuming for the parties involved. The access to legal remedies has become the province of the rich, and the average person is foreclosed from the legal system due to those high costs. To avoid this expense and delay, many persons in dispute with each other employ alternatives to trial, which include negotiation, mediation, and arbitration.

Negotiation

Negotiation is the process in which the parties attempt to settle disputes through compromise. This often happens before a lawsuit is even contemplated, but may occur during the pretrial and discovery phases of a trial, during the trial, or even immediately preceding a decision by a court of appeal. Compromise and settlement through negotiation are the cheapest and most efficient ways to resolve disputes. Sometimes, if a negotiated settlement is reached during litigation, the settlement agreement—the formal document which outlines the terms of the compromise—will be approved by the trial judge and constitute the judgment.

Mediation

At times it is helpful for a neutral third party to assist combatants in resolving disputes because that person can be objective and has no personal interest in the outcome of the matter. This is called mediation. In mediation, the disinterested mediator, who is often an expert in the law in dispute, meets with the parties separately and then together, and offers compromise solutions that the parties may accept or reject. The mediator has no power to bind the parties. Just as in negotiation, if the parties reach compromise, a binding settlement agreement is prepared and executed.

Arbitration

In arbitration, the parties hire an arbitrator, often a retired judge or legal expert, to hear the matter and impose a resolution upon them. Arbitration decisions may be legally binding if agreed to by the parties or required by law. In such a case, the arbitrator’s decision is final and may have the effect of a trial court judgment. If the arbitration decision is a non-binding one, either party may pursue a lawsuit if it does not agree with the decision. To reduce litigation costs, many business contracts require arbitration, either binding or non-binding, as a first step in the event of a dispute.