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Module 03
Trials and Resolving Disputes
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Learning Objectives
Upon successful completion, the student will be able to:
Explain basic trial procedures;
Analyze procedures and processes of litigating a dispute;
Analyze remedies in civil litigation;
Describe appellate stage;
Compare Alternative Dispute Resolution (ADR).
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The Judicial System
The court system is adversarial in nature.
Parties have the responsibility for bringing a lawsuit, shaping issues,
and gathering evidence.
Lawyers represent the parties’ claims in court.
Judges do not investigate.
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The Judicial System (2)
Court applies legal rules to facts presented.
Trials are often costly and uncertain.
Complex facts, extensive evidence, mountains of business records
involved.
Juries tend to be less sympathetic to businesses.
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Basic Trial Procedures
Pleading Stage
Discovery Stage
Pretrial Stage
Trial Stage
Appellate Stage
Enforcement Stage
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The Pleadings Stage
Formal statements made to the court by the parties
Jurisdiction needed over subject matter & parties.
Notice given of lawsuit by service of process through summons
Complaint
Alleges facts for jurisdiction and basic facts
Requests remedy(ies)
Responses to Complaint
Motion to Dismiss (Demurrer)
By defendant
Answer (may include affirmative defenses – usually by defendant)
Counterclaim
Reply
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Purpose of Discovery
(Legal Tools to Obtain Evidence)
Rules of Civil Procedure set guidelines to the process.
Purposes to 1) preserve evidence, 2) limit element of surprise, 3)
encourage settlement
Depositions of parties and witnesses (including experts) –
sometimes videotaped
Interrogatories of the parties
Use of Expert Witnesses
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Purpose of Discovery
(Legal Tools to Obtain Evidence) (2)
Requests for Admissions
Orders of Production of Documents
Physical/Mental Examinations
Impacts on business – expensive & time-consuming
Court may sanction a party who fails to comply with discovery
requirements.
Default Judgment
Contempt of court (fines, pay costs to the other party)
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Barabin v. AstenJohnson, Inc.
Barabin worked at a paper mill that used “dryer felts” containing
asbestos supplied by AstenJohnson
He was diagnosed with lung cancer caused by asbestos
He sued.
AstenJohnson moved to exclude testimony of Barabin’s expert
because he had “dubious credentials and his lack of expertise with
regard to dryer felts and paper mills.”
Court) hearing to determine if expert was qualified.
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Barabin v. AstenJohnson, Inc. (2)
Jury was to determine if expert testimony was credible.
Jury found for Barabin and awarded $10 million. AstenJohnson
appealed to Court of Appeals. It held:
District court determines relevance and reliability of expert testimony
– its admission or exclusion
Admission or exclusion under Daubert rests on scientific
reliability/relevance of expert testimony
admissible.
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Barabin v. AstenJohnson, Inc. (3)
Test under Daubert is the “soundness of expert’s methodology”
Factors in assessing reliability of expert testimony:
(1) Whether scientific theory/technique can be (has been) tested
(2) Whether theory/technique has been subjected to peer review &
publication
(3) Whether there is a known or potential error rate, and
(4) Whether the theory/technique is generally accepted in the relevant
scientific community
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Barabin v. AstenJohnson, Inc. (4)
HELD: District erred. New Trial is provided.
Because no Daubert hearing was conducted, District Court failed to
assess if expert applied scientific methodologies, reasoning or
principles.
Court merely allowed parties to submit expert’s testimony to the jury.
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Pretrial Stage
Summary Judgment – either party may request
Judge renders it
Pretrial Conference – either party or court may request
Usually attorneys and judge attend
Simplify issues
Plan course of the trial
Judges gets parties to drop non-key parts of case
Helps to focus on key issues
Judges may encourage parties to reach out-of-court settlement
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Jury Selection
6th and 7th Amendments gives right to a jury in criminal and
common law cases.
If no jury is used, judge becomes trier of fact.
Selection of jury involves voir dire.
Attorneys allowed limited number of challenges to reject prospective
jurors without stating reason – peremptory challenges
Often 12 persons on jury panel but not uncommon to have smaller

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Trial Stage
Opening Statements by attorneys
Presentation of Direct Testimony
Direct Examination, Cross Examination, Redirect Examination, ReCross Examination
Closing arguments
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Trial Stage (2)
Motions For A Verdict
Motion For A Directed Verdict/Motion For Judgment As A Matter of
Law/Judgment on the Pleadings
Before going to jury, either party requests entering judgment in its favor.
Instructions to jury (charges)
Verdict by Jury
Motion for Judgment As A Matter of Law/Motion For Judgment
Notwithstanding the Verdict (N.O.V.)
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Remedies In Civil Litigation
Monetary damages
Compensatory
Punitive or exemplary
Nominal
Equitable remedies
Specific performance
Temporary Restraining Order
Short term
To prevent destruction of evidence, removal of assets, etc.
Injunction:
Permanent
Temporary
Preliminary
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Naples v. Keystone Building
and Development Corp.
Keystone built $620,000 new home for Naples.
Major problems occurred soon after they moved in. Crews sent
several times to do repair work but problems continued.
Expert hired to evaluate the home. He said extensive work would be
needed costing $119,303.
Naples sued Keystone for the amount.
Trial court held for the Naples, awarding them only $59,140.
Stated that a higher damage figure had “not been established with a
sufficient degree of certainty.”
Naples appealed.
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Naples v. Keystone Building
and Development Corp. (2)
General rule: Place the party entitled to compensation in position it
would have been if there had been no breach
In construction damages are measured by
1) Reasonable cost of construction & completion OR
2) Difference between value contracted for and value of performance
that received
The trial court did not point to conflicting evidence or explain why it
reduced damages.
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Naples v. Keystone Building
and Development Corp. (3)
Trial court’s award was therefore illogical.
HELD: Trial court was in error.
New trial ordered and limited to issue damages to compensate
plaintiffs adequately.
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Appellate Stage
(Appeal Based On Error Of Law)
Arguments before the court
Written Briefs
Oral Arguments
Decisions by the court
Majority opinion
Concurring opinions
Dissenting opinions
Outcomes of decisions
Affirmed
Modified
Reversed
Remanded
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Enforcing Judgments
If no further appeal is available, judgment is final.
It is res judicata.
Enforcement of judgment is through writ of execution.
Court orders an official (i.e. sheriff) to satisfy judgment through an
act (such as seizure of property, garnishment, etc.).
Each side usually responsible for own costs.
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Arbitration
Most widely recognized form of ADR
Usually faster and cheaper than trails
3rd neutral party or panel (usually expert) is arbitrator or arbiter
Parties agree upon arbitration in the contract or during a later
dispute
Federal Arbitration Act (FAA) states agreement to arbitrate must be
upheld.
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Arbitration (2)
Arbitrator’s decision is binding.
Arbitration decision is final and matter cannot be litigated again or
appealed.
Usual rule: No right to go to trial
Appeals from these decisions are limited.
Uniform Arbitration Act (UAA) upholds the integrity of this process.
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Arbitration (3)
Decided at time of making the contract or after dispute arises
Begins when a party files a submission
Parties agree on arbitrator(s).
The hearing procedure
Closed door
Less restrictive procedural and evidentiary rules than a trial court
Procedures include on-line arbitration
Voluntary and prompt exchange of documents
Uncooperative parties may be required to pay fees and compensation by
arbitrator.
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Arbitration Process
The award (decision)
Usually given in writing within 30 days of arbitration hearing
Arbitrators have broad powers to decide remedies.
Arbitrators need not be attorneys—may be expert in relevant field.
Appealing the award
Attacks on arbitrators are rarely successful.
Errors of fact or law usually not reviewable.
Grounds for overturning appeal: fraud, partiality, serious procedural
misconduct, excessive use of power by arbitrator
Generally arbitration award is final
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SBD Kitchens v. Jefferson
SBD Kitchens contracted to do kitchen and bathroom renovation
work for the Jeffersons.
Contract contained an arbitration clause that disputes would go to
the American Arbitration Association.
Jeffersons were unhappy with work.
Refused to make final payment of $14,118.
Also created a website called “SBD Kitchens Contract” and “SBD
Jeffersons sued SBD in state court for breach of contract.
Trial court ordered parties to take claims to arbitration.
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SBD Kitchens v. Jefferson (2)
SBD said work was proper & website defamed the company.
Sought compensatory & punitive damages for harm to reputation by
website.
Arbitrator found for Jeffersons on breach of contract.
Found for SBD on defamation
$25,000 award + $166,039 in punitive damages.
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SBD Kitchens v. Jefferson (3)
Jeffersons appealed to trial court.
Award Affirmed.
Jeffersons appeal claimed arbitrator showed manifest disregard of
law.
HELD: Affirmed. No manifest disregard for the law.
Arbitrator’s decision displays effort to follow the law.
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Least formal form of ADR
Parties decide to perhaps settle matter.
Often use lawyers or representatives, though not required
Representatives are agents of parties to the dispute.
Negotiated settlement is usually a contract, which is enforceable,
like other contracts, by the courts.
Negotiation
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3rd neutral person (mediator) assists the parties of the dispute.
Parties mutually decide on a resolution.
Mediator makes suggestions.
Mediator’s suggestions not binding on the parties.
Parties may go to trial after this ADR.
Mediation may help to maintain the relationship between the parties.
Mediation
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The Mediator
Generally states do not require mediators to be licensed.
Most people prefer a trained or experienced person.
Usually parties agree to maintain confidentiality and suffer legal
penalties if violate confidence.
If mediator fails to act professionally, may be subject to liability to
one of the parties.
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The Mediation Process
Mediator collects information, outlines key issues, listens, asks
questions, observes the parties, discusses options, and encourages
compromise.
Mediator often helps to draft the settlement agreement.
The settlement agreement is enforceable in court. Some courts
require mediation before going to trial.
Mediator may assist in deciding the confidentiality of the case.
Information revealed during negotiation or mediation should not be
used as evidence if the dispute goes to a later trial.
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THE END
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