Civil Dispute Resolution & Procedure I
**PJ, SMJ, V
I. Overview
A. Basic Contours of the Adversarial System
-Self interest – vindicate your personal rights by suing the person who harmed you
-Truth is best determined in the competition of adversaries
-Zero-sum game
-Attorneys are required to represent their clients zealously but stay within the rules
-Judge has managerial role and can also interject and ask questions (In 21st Century the judge has a more active role – may set a schedule for completing discovery, etc.)
-About only 1.8% of cases go to trial. The rest reach a settlement or are terminated (dismissed or summary judgment) before trial
-Considerations affecting choice of where a lawsuit is filed:
-convenience for P, not ideal for D
-Fed/State: lawyer’s familiarity with judges or geographic area from which a jury will be drawn
-what court litigation is most likely to proceed more rapidly
-what court is lawyer most comfortable
-Civil cases standard of proof is a preponderance of evidence (more evidence that he did do it than he didn’t do it)
Stages of Litigation:
1. Forum Selection
a. Personal Jurisdiction
b. Notice
c. Subject Matter Jurisdiction
d. Venue
2. Pleadings – documents in which parties set forth claims and defenses (put parties on notice of general claims
3. Discovery – free exchange of info
4. Adjudication – summary judgment or case is tried, or a settlement is made. Court’s entry of judgment
5. Losing Party Seeks Appellate Review (Preclusion Doctrines prohibit a plaintiff from asserting the same claim again)
Substantive law creates and defines rights
Procedural law is how rights are vindicated
– (original jurisdiction = cases filed and decided by trial courts, as opposed to appellate jurisdiction)
B. Remedies
Damages=monetary payment (compensatory/restitution to make plaintiff whole)
Punitive Damages=monetary payment to punish D
Injunctions=an order prohibiting a D from taking some act in the future
Specific Relief (relating to a specific piece of property)
Rescission=undoes a contract
Reformation=court redrafts documents (contract)
Attorney’s Fees: by the hour or contingent (lawyer only recovers a fee if the P recovers from the D. Set % agreed to in advance)
American Rule: FRCP 54(d): “each party bears his own attorney’s fees, win or loose.”
-The prevailing party may recover her costs (of filing, etc) but not her attorney’s fees from the losing party
-Parties are free to contract around this rule – will provide that in the event of litigation, the prevailing party will recover attorney’s fees from the lost
o Exceptions:
§ Courts MAY recognize a common law exception to the Rule, ordering a party who engages in bad faith, vexatious litigation- but uncommon
§ Congress has passed some “fee shiftin
ave certain powers to federal gov, and the rest remain vested in the states (10th Amendment)
*Unlimited Subject Matter Jurisdiction EXCEPT for certain things that congress determined must be heard in fed court
Organization:
1. NY Supreme Court (trial)
2. Appellate Division (appeals)
3. NY Court of Appeals
*Note: Appellate courts will rely on trial court’s determination of fact, and will only reverse it if it is clearly erroneous
*A party seeking review by the Supreme court files a petition for writ of certiorari (4 of 9 justices must agree to hear the case)
-Petitioner = party who sought review
-Respondent = other party
*Stare decisis- “to stand by things decided”
D. Final Judgment Rule
One may appeal only from a final judgment; that is the trial court’s ultimate decision on the merits of the entire dispute. The numerous non-final decisions of the trial court generally cannot be appealed as they are made, but must await entry of the final judgment
