Chapter 2: Traditional and

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Chapter 2: Traditional and




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Presentations text content in Chapter 2: Traditional and

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Chapter 2: Traditional and

Online Dispute Resolution

Slide2

Learning Objectives

What is judicial review? How and when was the power of judicial review established?

Before a court can hear a case, it must have jurisdiction. Over what must it have jurisdiction? How are the courts applying traditional jurisdictional concepts to cases involving Internet transactions?

Slide3

Learning Objectives

What is the difference between a trial court and an appellate court?

What

is discovery, and how does electronic discovery differ from traditional discovery?

What are three alternative methods of resolving disputes?

Slide4

Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote:“It is emphatically the province and duty of the judiciary to say what the law is….” Today, judicial review is exercise by both federal and state courts.

The Judiciary’s Role in

American Government

Slide5

Basic Judicial Requirements

Jurisdiction

: “

Juris

” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute.

Slide6

Basic Judicial Requirements

Jurisdiction

.

Jurisdiction over Persons or Property.

Court can exercise personal jurisdiction (

in personam

).

Long-Arm Statutes

: Courts exercise jurisdiction over non-resident defendants based on “minimum contacts” with state.

Slide7

Basic Judicial Requirements

Jurisdiction.Long-Arm Statutes.Corporate Contacts: does the firm do business or advertise within the state?CASE 2.1 Southern Prestige Industries, Inc. Independence Plating Corp. (2010). Did the New Jersey firm have minimum contacts with North Carolina?

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Slide8

Basic Judicial Requirements

Jurisdiction.Jurisdiction Over Subject Matter.General and Limited Jurisdiction: statutory limitation on the types of cases a court can hear (e.g., probate and bankruptcy). Can also be limited to amount in controversy (amount of monetary damages).

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Slide9

Basic Judicial Requirements

Jurisdiction.Original and Appellate Jurisdiction.Courts of original jurisdiction is where the case started (trial).Courts of appellate jurisdiction have the power to hear an appeal from another court.

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Basic Judicial Requirements

Jurisdiction.Jurisdiction of the Federal Courts.Federal Questions: rights or obligations of a party are created or defined by some federal law.Diversity of Citizenship: parties are not from same state, and amount in controversy must exceed $75,000.

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Basic Judicial Requirements

Jurisdiction.Exclusive vs. Concurrent Jurisdiction.Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case. Concurrent: more than one court can hear the case.

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Basic Judicial Requirements

Jurisdiction in Cyberspace.Sliding Scale Standard to determine whether a court has jurisdiction.

No Yes

Substantial Business Interaction

Passive Website

Some Interaction

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Slide13

Basic Judicial Requirements

Jurisdiction in Cyberspace.International Jurisdiction Issues.CASE 2.2 Gucci America, Inc. v Wang Huoqing (2011). What factors did the court consider in its decision to assert jurisdiction over the defendant?

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Basic Judicial Requirements

Venue.Venue is concerned with the most appropriate location for the trial.Generally, proper venue is whether the injury occurred.Standing to Sue.A party must have suffered a legal injury and have a sufficient “stake” in the controversy.

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State and Federal Court Systems

Ct. Criminal

Appeals

Supreme

Court

Court of

Appeals

District Court

County Court

Municipal

Court

Justice

Court

Texas Courts

U.S. Supreme

Court

Circuit

Courts of

Appeals

U.S. District

Court

Federal Courts

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Slide16

State and Federal Court Systems

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Slide17

State and Federal Court Systems

State Court Systems.Trial Courts.“Courts of record”- have court reporters.Small Claims Courts are informal, inferior courts with limited amounts in controversy (usually $5,000).

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Slide18

State and Federal Court Systems

State Court Systems.Appellate, or Reviewing Courts.Review trial court proceedings to determine whether the trial complied with procedural and substantive rules of law.Generally, appellate courts will consider questions of law, but not questions of fact.

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State and Federal Court Systems

State Court Systems.Highest State Courts.Usually, but not always, called a ‘supreme court.’Decisions of a state’s highest court on matters of state law are final. The U.S. Supreme Court can overrule a state supreme court when there are federal laws involved.

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State and Federal Court Systems

The Federal Court System.Basically a three-tiered system:U.S. District Courts (trial courts of general jurisdiction).U.S. Courts of Appeal. The U.S. Supreme Court. 

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State and Federal Court Systems

The Federal Court System.U.S. District CourtsCourts of original jurisdiction based on federal statutes. U.S. Courts of Appeal.There are 13 Courts of Appeal representing district courts throughout the country. 

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Slide22

Federal Court System:U.S. Courts of Appeal

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Slide23

State and Federal Court Systems

The Federal Court System. The U.S. Supreme Court.Final arbiter of U.S. Constitution.Petition for Court to hear case by Writ of Certiorari.www.supremecourt.gov

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Slide24

Following a State Court Case

The Pleadings.

The Plaintiff’s Complaint.

The Defendant’s Answer.

Motion to Dismiss.

Slide25

Following a State Court Case

The Pleadings.

Plaintiff’s Complaint.

Court acquires jurisdiction over subject matter and Plaintiff.

Facts: What happened.

Prayer: Court relief.

Slide26

Following a State Court Case

The Pleadings.

Defendant’s Answer:

Makes

General Denial

.

May move for

Change of Venue

.

May allege

Affirmative Defenses

.

May assert

Counterclaims

against Plaintiff.

Slide27

Following a State Court Case

The Pleadings.

Motion to Dismiss.

Many lawsuits never go to trial. Perhaps there is a settlement, or the case was dismissed.

Either party (normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim.

Slide28

Following a State Court Case

Pretrial Pleadings.

Motion for Judgment on the Pleadings

.

Asks the court to rule on the case, based on the pleadings.

Motion For Summary Judgment.

Asks a court to grant a judgment for moving party without a trial. Facts are viewed in the light most favorable to the other party. Admissible evidence is submitted.

Slide29

Following a State Court Case

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Discovery: process by which parties obtain information from the opposing party prior to trial.

Depositions and Interrogatories

.

Sworn testimony recorded and transcribed by court official (court reporter).

Written questions and answers under oath.

Slide30

Following a State Court Case

Discovery.Requests for Other Information.Electronic Discovery.FRCP deals specifically with preservation, retrieval, and production of electronic data.

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Slide31

Following a State Court Case

Pretrial Conference.Jury Selection.Voir Dire.Jurors can be dismissed peremptorily (no reason or for cause (bias).

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Slide32

Following a State Court Case

The Trial.Opening Statements. Rules of Evidence.Judge decides what evidence is admissible for jury’s consideration.Evidence must be relevant to the issues (tends to prove or disprove).

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Slide33

Following a State Court Case

The Trial.Motion for Directed Verdict: at conclusion of plaintiffs’ case, court looks at evidence in most favorable light to defendant.

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Slide34

Following a State Court Case

The Trial.Expert Witnesses. Provide specialized knowledge and opinions that help jurors decide issues.CASE 2.3 Downey v. Bob’s Discount Furniture Holdings, Inc. (2011). Why did the trial court abuse its discretion?

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Slide35

Following a State Court Case

The Trial.Closing Arguments: each attorney summarizes the facts and evidence and tells her client’s story in the most compelling way possible.Verdict: The verdict specifies the jury’s findings and liability. A jury can award money damages in a civil case.

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Slide36

Following a State Court Case

Posttrial Motions.Motion for J.N.O.V.: granted only if the jury’s verdict was unreasonable and erroneous.Motion for New Trial: after looking at all the evidence, judge will grant the motion IF the jury was in error.

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Slide37

Following a State Court Case

The Appeal.A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial.Appellants must have legitimate grounds for appeal (usually legal error). 

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Slide38

Following a State Court Case

The Appeal.Appellate Review: the appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.Higher Appellate Courts.

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Slide39

Following a State Court Case

Enforcing the Judgment.Even if a plaintiff wins a jury award of damages, the defendant may not have sufficient assets or insurance to cover the amount.Usually these factors are considered before a lawsuit is filed.

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Slide40

Electronic Filing.Courts Online (websites, court dockets).Cyber Courts and Proceedings.

Courts Adapt to the Online World

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Slide41

Alternative Dispute Resolution

41

ADR describes any procedure or device for resolving disputes other than the traditional judicial process.

Unless court-ordered there is no record, which is an important factor in commercial litigation due to trade secrets.

Most common:

negotiation

,

mediation

,

arbitration

.

Slide42

Alternative Dispute Resolution

42

Negotiation.

Negotiation is informal discussion of the parties, sometimes without attorneys, where differences are aired with the goal of coming to a “meeting of the minds” in resolving the case.

Successful negotiation involves thorough preparation, from a position of strength.

Slide43

Alternative Dispute Resolution

43

Mediation.

Mediator talks face-to-face with parties (who typically are in different adjoining rooms) to determine “common ground.”

Advantages: few rules, customize process, parties control results (win-win).

Disadvantages: mediator fees, no sanctions or deadlines.

Slide44

Alternative Dispute Resolution

44

Arbitration.

Many employment contracts have binding arbitration clauses.

Settling of a dispute by a neutral 3

rd

party (arbitrator) who renders a legally-binding decision; usually an expert or well-respected government official.

Slide45

Alternative Dispute Resolution

45

Arbitration.

Arbitration Clauses and Statutes.

Uniform Arbitration Act of 1955.

Federal Arbitration Act.

Issue of Arbitrability.

Mandatory Arbitration

in the Employment Context: generally mandatory arbitration clauses are enforceable.

Slide46

Alternative Dispute Resolution

Other Types of ADR.Providers of ADR Services.Non-profit organizations:American Arbitration Association.Better Business Bureau.For Profit: JAMS-ADR.com(Flash enabled).

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Slide47

Alternative Dispute Resolution

Online Dispute Resolution.Also called ODR.Uses the Internet to resolve disputes.Still in its infancy but is gaining momentum.See, e.g., www.cybersettle.com .

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