Chapter 5: Civil Litigation & Alternatives

define litigation

the process of using the courts to resolve a dispute

why use the courts to resolve disputes?

courts provide a peaceful way to decide private disputes that people can’t resolve themselves

what is the purpose of courts

they exist so the equality of individuals and the government is reality rather than empty rhetoric

court goals: “to promote justice ___

in individual cases

court goals: “to ensure the public __

perceptions of justice in individual cases

court goals: “to provide an impartial ____

forum for the resolution of legal disputes

court goals: “to protect individuals ____

against the arbitrary use of governmental power

court goals: “to provide for a formal record of ___

legal status

court goals: “to deter___

criminal behavior

court goals: “to rehabilitate ____

individuals convicted of crime

court goals: “to provide for the ____

separation of convicted individuals from society where necessary

court goals: “to protect vulnerable populations ___

from the abuse of power in any form

court goals: “to promote coordination with justice, public health, social service, and other agencies to address ____

substance abuse and mental health through specialty/problem solving courts

define problem solving courts

courts compromised of teams of specially trained judges, attorneys, probation officers, coordinators, and clinical specialists who provide services to defendants in justice systems as a result of substance abuse, mental health, or concurring disorders

summarize drug courts

provide participants with treatment and resources to improve their health in the community and avoid incarceration through intensive programs and oversight

summarize mental health courts

facilitate appropriate treatment and social support that encourages positive and lasting lifestyle changes so that incarceration is unnecessary

summarize veterans courts

using mentors who are veterans or current service members who understand the struggles that veterans face like PTSD and substance abuse because of their time served.

participation in specialty/problem solving courts is typically ____

voluntary

define settlement

voluntary resolution of a dispute between parties, does not require the filing of a lawsuit and cases can be settled during litigation

IS a settlement legally binding?

Yes. If the parties enter a settle agreement it is a form of contract which is legally enforceable

define alternative dispute resolution

techniques for resolving conflicts that are alternatives to full-scale litigation

examples of alternative dispute resolution

mediation and arbitration

define mediation

neutral third party assists the parties in reaching a mutually-agreeable, voluntary compromise

define arbitration

the parties submit their disagreement to a third party who issues a binding decision. can be voluntary or mandatory

participants of mediation

parties and a third-party mediator. the mediator is selected by the parties and is compensated

process of mediation

mediator facilitates a conversation between the parties to look for common ground

outcome of mediation

a voluntary settlement agreement that is a legally-enforceable contract

participants of arbitration

parties and the neutral arbitrator or a panel of arbitrators. may have rules if written contract involved

process of arbitration

quasi-judicial proceeding. may have witnesses and consider evidence.

outcome of arbitration

a binding arbitration award. there may be a process to reject the arbitration award or to appeal it to the courts

Benefits of ADR

Lower costs for parties, resolves disputes faster than litigation, adr is not public

Benefits of litigation

definitive, legally binding final judgement, can appeal errors to a higher court, process protects parties with less power

Define the discovery period

the period of time where the parties exchange information

define interrogatories

written questions sent by one side to the opposing side, answered under oath

define depositions

the pre-trial oral questioning of a witness under oath

define motion

a requrest for a court to do something

define motion to dismiss

a request to dismiss the trial

define motion for summary judgement

one side or the other cannot win the case based on disposition information

define motion in Limine

asks the court to limit what information the jury can hear

define adversarial system

system characterized by competing, opposing parties overseen by a neutral decision maker

define jury selection

first step of a trial, selecting individuals who will serve on the jury regulated by law and court rules

define challenge for cause

a method for excusing a prospective juror based on the juror’s inability to serve in an unbiased manner

There is ___ on the number of jurors who can be excused for cause

no limit

define peremptory challenge

method for excusing a prospective juror; no reason must be given

each party is given ___ peremptory challenges to use

the same number of

What does the 3 part test include to assess if prosecutors are using peremptory challenges to eliminate jurors of the same race

check if the defendant can show evidence that the prosecutor excluded jurors based on race, prosecutor offers a race-neutral reason for the strike, or the court decides whether that reason is genuine or protest

litigation begins with the filing of ___ which contains what

a compliant - contains facts of the case, legal reasons for the claim(s), the relief sought by plaintiff

courts cannot decide ____ or _____

abstract issues or rendery advisory opinions

courts are limited to deciding cases that invole _______

litigants who are personally impacted by the court’s decision

define legal competence

a plaintiff must be capable of suing and being sued