Conflict Resolution

Adversarial System (Common Law System)

• Adjudicative process

• Law applied by precedent

• Judge serves as referee

  • Applies principles of evidence

• Parties must bring evidence to court

• Alternative Dispute Resolution

  • Arbitration

    • Often by contract

    • Binding on parties

  • Mediation

    • Mandatory in North Carolina Superior Court

    • High rate of success (estimated 90%)

    • Helps to frame the scope of dispute even if no settlement

Adversaries in Environmental Law: Private Party v. Private Party

Landowner v. Landowner

• One private party claims damage from actions of a similar neighbor

• Examples: odor or noise nuisance, water damage

• Landowner v. Industrial Facility

  • One private party claims damage from actions of an industrial facility

  • Common law actions (nuisance, trespass, negligence) and “Citizen Suit” provisions of pollution statutes (e.g. Clean Water Act)

Adversaries in Environmental Law: Private Party v. Government

Private Party v. Government

• Private individual or organization sues government agency

  • To force agency to perform duties required by statute

    • Generally, a refusal of agency to regulate or promulgate a regulation to control pollution

    • Example: Massachusetts v. EPA

  • To stop agency from exceeding their authority under a statute

    • Agency has misinterpreted the law

• Source of right to sue

  • Citizen suit provision of a statute (Clean Air Act, Clean Water Act

  • Suit provision in a procedural statute: Administrative Procedures Act, NEPA, Endangered Species Act, etc.

• Limitation on right to sue:

  • Must meet threshold issues (standing, mootness)

  • Must exhaust administrative remedies with agency before going to court (when process is required by statute or regulation)

• Government v. Private Party

  • Private party has refused to comply with agency enforcement jurisdiction (authority granted by statute)

  • Filed as a criminal case by federal or state prosecutor

    • Example: Rapanos v. U.S.

Parties to the Judicial Case

Plaintiff (aka Petitioner)

• shorthand π

• Files a complaint, alleges a wrong against specific party, demands relief

• Must prove by a preponderance of the evidence

• Defendant (aka Respondent)

  • Shorthand ∆

  • Alleged to have infringed upon the rights of π

  • files counterclaim if also injured

• Intervenor

  • Has an interest in the property or right at issue in the litigation

  • Bound by outcome of case

• Amicus Curiae (“Friend of the Court”) (plural:  amici curiae)

  • Seeks to influence decision

  • Does not wish to become party bound by outcome

  • Files Amicus Brief in Appellate proceedings only

  • Example: American Farm Bureau, amicus brief in WOTUS cases

Sources of Procedure Rules

Federal Rules of Civil Procedure

• 28 U.S.C.

• Rules of Practice and Procedure for Federal District Court (published by the court)

  • Special rules for Bankruptcy Court according to Federal District

• North Carolina Rules of Civil Procedure

  • N.C.G.S. §1A-1

Initiating the Case

Agency Appeals Process (Administrative court)

• Statutory process for appealing agency action

• Denial of permit or levy of fine

• Civil Trial

  • Completion of proper service on Defendant

  • Distinguish from filing the complaint

• Criminal

  • Grand Jury system (relaxed rules of evidence)

Civil Procedure –Jurisdiction

• Subject matter jurisdiction (often by statute)

  • Court may dismiss case without motion from defendant

• In Personam – jurisdiction over the person

  • Minimum contacts rule

  • Corporate registration requirement (NC Secretary of State)

• In Rem – jurisdiction over property (location of property)

  • Property tax example

• Diversity jurisdiction (Federal Court) (28 U.S.C §1332)

  • ALL civil matters including state law

  • $75,000 amount in controversy, AND

  • Plaintiff and Defendant are in different states

  • Cannot create Federal jurisdiction by contract

• Amount in controversy

  • State court amounts review ($25,000 limit for NC Superior)

Civil Procedure - Venue

Based on locality of dispute

• “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated” (28 U.S. Code §1391(b)(2))

• Can be based on residency of defendant

  • “any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action” (28 U.S. Code §1391(b)(3))

• “Convenient to parties and witnesses”

• Can be raised pre-trial to change courts (not dismissal of claim)

  • Litigation tactic by Defendant to increase costs to Plaintiff

• Can create venue (and sometimes jurisdiction) by contract (called forum selection)

Before One Can Access Courts, must have an actual ”case” or “controversy”

“Cases and Controversies” threshold issues

• Standing

  • Party suing must be injured, must have a real case

  • Case with test for whether standing is me: Lujan v Defenders of Wildlife

• Ripeness

  • Situation has not yet created a legal dispute

  • Related to “exhaustion of administrative remedy”

• Proper Defendant

  • Defendant must be the proper party to be sued

  • Must be right party from whom to hold accountable and recover

• Mootness – no longer a controversy

  • Matter settled prior to trial, a change in the law, a withdrawal of an ordinance, etc.

Civil Procedure - Complaint

Name the Proper Defendant with specificity

• Statement of Jurisdiction of Court

  • E.g. defendant residency, occurrence of events

• Statement of Facts (Allegations)

  • Facts must be admitted to or proven over objection

• Statement of Claim for Relief

  • Legal justification for claim

• Demand of claim for relief (remedy)

  • Money damages (general amount “in excess of…”)

  • Equity damages (specific performance)

Civil Procedure - Answer

Answer

• Must respond within prescribed time period

  • Risk default judgement

• Must address factual allegations in complaint

  • Admit or deny

  • Clarify or supply alternative facts

• Defenses

  • e.g. “failure to state a claim upon which relief can be granted [Fed. R. Civ. P. 12(b)(6)] (called a “12(b)(6) Motion”)

  • Lack of standing, jurisdiction, ripeness, mootness etc.

• Counterclaims

Civil Procedure - Counterclaims

Compulsory:

• Operates to nullify or offset plaintiff’s claim

• Defined as “A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:

  • (a) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and

  • (b) does not require adding another party over whom the court cannot acquire jurisdiction.” Fed. R. Civ. P. 13(a)(1)

• Permissive:  “[A]ny claim not compulsory” Fed. R. Civ. P. 13(b)

  • Generally matters unrelated to Plaintiff’s primary claim

Civil Procedure – Cross Claim

Plaintiff makes a claim upon multiple defendants on set of facts coming from a common transaction or situation

• Defendant asserts claim against co-defendant

  • “Indemnification” – an obligation of a party to reimburse another party for damages and costs associated with a dispute related to their dealings

  • Normally a matter of contract between parties

• If not part of the same case (same general set of facts), cross-claimant must initiate own action against new defendant (original defendant become plaintiff)
  

Discovery

Gathering information prior to trial, can be very broad

• Interrogatories

• Requests for Admission (”admit or deny”)

• Requests for Production

  • Documents

  • Electronic records

• Depositions

• Objections to various Discovery

  • Must preserve objections to requests (for purpose of hearing and appeal)

    • Example:  attorney-client privilege

Pre-Trial Motions

Motion to Dismiss

• Federal Rule 12(b)(6) “Failure to state a claim upon which relief may be granted”

• Motion for Summary Judgement

  • No facts are at issue

  • Motion for Judgement on the pleadings

    • Legal issue can be decided by Judge (no need for jury to judge the facts)

• Both are immediately appealable when granted

Jury Selection and Fact Finding

Jury Trial (no waiver)

• Voir dire

• Bench Trial

• List of Witnesses

• Rules of evidence

  • Expert testimony (“I am of opinion the X’s chemical discharge killed plaintiff’s bees”)

  • Fact (event) witnesses (“I saw him…)

  • Hearsay (“I heard that he said…) (exceptions)

  • Authentication of item (example:  handwriting)

Trial

Opening Arguments by both Plaintiff and Defendant

• Each side previews its case, summarizes evidence, states why should win

• Plaintiff’s Case

  • Production of evidence

  • Witness Testimony

    • Direct Exam by Plaintiff

    • Cross Exam by Defendant

    • Re-Direct by Plaintiff to Clarify

    • Re-Cross by Defendant

• Defendant usually moves for dismissal or summary judgement

  • If granted, appealable

  • If denied, proceed to defendant’s case

• Defendant’s Case

  • Direct

  • Cross

  • Re-Direct

  • Re-Cross

• Closing Arguments

Each side submits jury instructions

• Debated in Motion Practice outside of ears of jury

• Deliberation

• Verdict

• Motion for Judgement Notwithstanding the Verdict (JNOV)

• Entry of Verdict

  • Begins the clock on time limit for appeal

Post-Trial: Appeal

Trial court record contains facts (the trial record)

• Evidentiary matters were decided by judge at trial

• “Losing” party has right of appeal to appropriate Court

• Limited time to file appeal

  • 30 days for most cases in 4th Circuit