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Dispute resolution
 

Dispute resolution

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BUS 263 lecture slides from January 23, 2014.

BUS 263 lecture slides from January 23, 2014.

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    Dispute resolution Dispute resolution Presentation Transcript

    • Ch. 4: Dispute resolution cc licensed ( BY NC SA ) flickr photo by Isaac Hsieh: http://flic.kr/p/6dEZwm
    • Team Quiz • Closed book/closed notes • You may collaborate with your team • You are responsible for the answers on your quiz • You do not have to choose the same answers as your team
    • Pleadings • Complaint –Jurisdiction –Facts –Prayer for relief
    • Pleadings • Answer –Defendant admits/denies allegations –Affirmative defenses –Counterclaims
    • Service of process • Complaint & Summons • Waiver of service • Default
    • Pretrial motions • Dismiss: 12(b)(6)—failure to state a claim for which relief can be granted • Judgment on the pleadings • Summary judgment: no genuine issue of material fact, entitled to judgment as a matter of law
    • Statute of limitations • Must file lawsuit reasonably soon after injury/damage. • Why?
    • Alabama Statutes of limitations • • • • General, 2 years Medical malpractice, 1 year Contracts, 7/10 years Title to property: 20 years
    • Discovery
    • Discovery • Any information reasonably calculated to lead to admissible evidence –Privilege • Attorney-client • Work-Product –Objections • Overbroad, unduly burdensome, lacks relevance
    • Discovery methods • • • • Depositions Interrogatories Requests for admission Request for documents
    • Jury v. Bench trial • 7th Amendment: “right of trial by jury shall be preserved” • Doesn't create right to jury in civil cases • Preserves it as it existed in 1791
    • action at law?
    • Jury Trial cc licensed ( BY NC SA ) flickr photo by CALI - Center for...: http://flic.kr/p/budmgZ
    • suit in equity?
    • Bench Trial (no jury) cc licensed ( BY NC ND ) flickr photo by Nathan Adams: http://flic.kr/p/8N8abW
    • Jury selection • Voir dire –Challenge for cause –Peremptory challenge –Batson motion
    • Evidence cc licensed ( BY ND ) flickr photo by Bill Selak: http://flic.kr/p/5GM8un
    • Admissible evidence • “All relevant evidence is admissible, except as otherwise provided by [law] . . . Evidence which is not relevant is not admissible.” Ala. R. Evid. §402 • Federal rule of evidence is essentially the same.
    • Witness reliability • Generally goes to the weight of the evidence, not admissibility • Admissibility: question of law –Determined by judge • Weight: question of fact –Believability/credibility –Determined by trier of fact
    • "Trier of fact"? jury cc licensed ( BY NC SA ) flickr photo by CALI - Center for...: http://flic.kr/p/budmgZ
    • Admissible testimony –Personal knowledge • If relevant –Opinion • Based on firsthand knowledge • Helpful to trier of fact –Expert opinion • “a witness qualified as an expert may testify in the form of an opinion.”
    • Trial • • • • • Opening statements Plaintiff’s case Defendant’s case Closing statements Deliberation/verdict
    • Post-trial motions • Directed verdict • New trial • Judgment notwithstanding the verdict –J.N.O.V.
    • Appeals • • • • Questions of law only Briefs Oral Argument – At court's discretion Actions – Affirm – Reverse – Remand
    • Enforcement?
    • ADR • Alternative Dispute Resolution –Alternative to what? LITIGATION!
    • What’s wrong with litigation?
    • cc licensed ( BY NC ND ) flickr photo by Gilderic Photography: http://flic.kr/p/6mPZrM
    • cc licensed ( BY SD ) flickr photo by 401K: http://flic.kr/p/aFAaK6
    • Discovery
    • Alternatives? • Negotiation – Pro: cheap, fast – Con: non-binding, may not agree • Mediation – Pro: less expensive, faster, 3d party may help sides agree – Con: non-binding, expense of 3d party • Arbitration – Pro: binding, faster, less publicity – Con: no appeal, expense of lawyers and arbitrators, potential bias
    • Why is arbitration important? • How many have signed an arbitration agreement? –Signed a contract? –Bought a car? –House? –Credit card? –Cell phone? –“Dispute resolution”
    • Concerns with arbitration • Fairness • California study: banks won 94% of arbitration cases • Expense • Pay up front • Split cost of arbitrator • Discovery • None
    • Postell v. Merrell Lynch • Estate of Robert Postell filed arbitration claim for mismanagement of brokerage account • FINRA arbitration panel awarded Postell $520,000 • FINRA then sent all 3 arbitrators "black spot" letters
    • AT&T v Conception 131 S.Ct. 1740 (2011) • Supreme Court upheld arbitration agreement & class action waiver • Overruled California Supreme Court holding that contract was unconscionable
    • c licensed ( BY NC ND ) flickr photo by Darren Waters: http://flic.kr/p/qVEYb
    • Sony timeline • April 26, 2011: Sony gets hacked; 77 million accounts compromised • April 27, 2011: AT&T v Conception decision • April 27, 2011: First class action lawsuits against Sony filed • September 2011: Sony changes Playstation network TOS to require class action waiver
    • Opt-Out • Sony • T-Mobile • Others?