Business Law Litigation.ppt

Welcome Business Law Lecture Topic: Litigation  “The first thing we do, let’s kill all the lawyers.” ― Shakespeare’s Henry VI, Part II “Why does a hearse horse snicker, hauling a lawyer away?” ― Carl Sandburg  What is Litigation? Litigate = “contest in law”...

Welcome Business Law Lecture Topic: Litigation  “The first thing we do, let’s kill all the lawyers.” ― Shakespeare’s Henry VI, Part II “Why does a hearse horse snicker, hauling a lawyer away?” ― Carl Sandburg  What is Litigation? Litigate = “contest in law” – Litigation = “judicial proceedings” Dispute resolution of issues between individuals Action brought before a court by plaintiff against defendant seeking a legal remedy Types of relief: – Enforce a right Ex: right of ownership – Money award – injunction (prevent or compel an act) Are Litigants Required to Use a Lawyer? Generally litigants can we represent themselves –but- Importance of “advocacy” – Pleading cause of another “He who represents himself has a fool for a client” Adversary system – Definition: “An opponent who strives against the enemy.” Adversarial nature of rule-based system  Who May Practice Law Varies from jurisdiction but generally must be "licensed" – Designed by attorney organization "Bar Association" Statute/administrative regulation regulates practice of law – Common requirements: Good moral character Minimum educational requirements Pass exam or internship/clerkship Take oath to support laws / standards – “Zealously advocate for a client” – Not lie, cheat, or steal, or help another do so » Avoid conflicts of interest  Lawyer's Profession Advice / counseling to clients Preparation of legal documents – Contracts / wills / business organizations / real estate deeds / corporate documents Represent before government agencies – Tax, zoning Prepare case – To sue / to defend Negotiator between opposing parties – Possibly settle (civil / criminal) matter Represent client in court (civil / criminal) Factors in Deciding to Sue 1. Cost of Lawsuit Filing fees, administrative charges 2. Lawyers fees – Usually payable by each party Two Types: Hourly, Contingent “Lawyers stock and trade is time” 3. Loss of Time – business and personal 4. Long-term effects on relationship/reputation of parties Factors in Deciding to Sue 5. Stress – business/personal 6. Uncertainty of outcome Judges are human Involves risk of: - Losing significant sum of money - Gaining significant sum - Not losing but not winning  What Rules Govern a Lawsuit? Court Rules of Procedure – Civil procedure dictates timing, progression of lawsuit Failure to comply with procedural rules can result in serious limitations or dismissal of a lawsuit  Types of Courts Trial Courts (courts of original jurisdiction) Appellate Courts  Trial Courts Common function: – Finding the relevant facts – Identifying appropriate rule of law – Combine facts and law to reach a decision in settlement of dispute Facts + Law = Decision (Judgment)  Appellate Courts Appellate courts review decisions of lower courts – Some countries have Intermediate Appellate Courts Appeal is challenge of a judgment to a higher judicial authority Commencement: formally filing a notice of appeal – Appeal contains Appellate Brief Issues Considered on Appeal Trial record is considered – Some appellate courts consider new evidence Appellant, respondent argue on – proceedings, rulings – evidence considered – law used – final judgment challenged Appellant must prove that the lower court committed error  Remedies on Appeal Remedies on appeal: – Affirm: lower court ruling stands – Reverse: change lower court ruling – Remand: send cases back to lower court  Jurisdiction Power, or authority, of a court to hear a case – Determined by court’s rules of procedure other laws establishing courts Court must have proper jurisdiction (authority) to start/proceed – Judgments made with improper jurisdiction might not be recognized by other courts Most common jurisdictional issues: – Personal Jurisdiction – Subject Matter Jurisdiction – In Rem Jurisdiction  Personal Jurisdiction Physical Jurisdiction: Usually defendant must be physically in court’s geographic area at commencement of lawsuit – Traditional requirement Due Process of Law: idea of fairness – Notice (procedural) Service of Process – Right to Defend (substantive) Defendant must be notified of lawsuit, be allowed opportunity to defend  Subject Matter Jurisdiction Subject matter jurisdiction: type of claims a court has jurisdiction over – Small Claims Court – jurisdiction limited by amount at issue – Bankruptcy Court – deals only with bankruptcy cases, reorganizations and liquidations – Domestic Relations – Intellectual Property Court – International Trade Court – Court of “General" Jurisdiction: hears cases over which no other court has exclusive jurisdiction  in rem Jurisdiction Jurisdiction established by the location of property (ex: bank account, real property, a boat, ship or plane) within court’s physical boundaries – Court’s control of property gives jurisdiction  Jurisdiction by Agreement: Facebook Disputes If you are a consumer, the laws of the country in which you reside will apply to any claim, cause of action or dispute that you have against us that arises out of or relates to these Terms or the Meta Products, and you may resolve your claim in any competent court in that country that has jurisdiction over the claim. In all other cases, and for any claim, cause of action or dispute that Meta files against you, you and Meta agree that any such claim, cause of action or dispute must be resolved exclusively in the US District Court for the Northern District of California or a state court located in San Mateo County. You also agree that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim, and that the laws of the State of California will govern these Terms and any claim, cause of action or dispute without regard to conflict of law provisions. Without prejudice to the foregoing, you agree that, in its sole discretion, Meta may bring any claim, cause of action or dispute we have against you in any competent court in the country in which you reside that has jurisdiction over the claim. http://www.facebook.com/terms.php  What is a Trial? Parties to a dispute present information (in the form of evidence) in a formal setting, before a judge (or jury) to achieve a resolution to their dispute Each party will have the burden of going forward and meeting the burden of proof Trials are govern by rules of procedure and rules of evidence  Litigation Concepts Role of the court, role of the judge – Judge (bench) trials vs. jury trials Pre-trial litigation – Complaint: sets out the parties, brief facts and law and relief requested – Summons: explains how the defendant is to respond to the complaint – Answer: defendant's response to the plaintiff's claims – Motions: requests of the court to decide or order something to be done  Motions Request that a court make a decision (ruling) or order some action by one of the parties Common pre-trial motions: – Summary Judgment: facts are not in dispute, case can be decided applying law to undisputed facts Saves time/ costs – Default Judgment: entered by a court in favor of one party, failure of other party to respond to complaint Court resolve case without a trial because one party has not participated/defended – Injunctions: Ex: Sequestration of assets Ex: To prevent trespass Ex: To prevent intellectual property violations – Discovery requests Motions usually must contain a request and some evidence to prove facts , commonly an affidavit or testimony  Course of a Trial Trial Briefs Opening Statements Presentations by each side –Cross examination of witnesses Closing statements Judgment  Evidence At trial, a court seeks the facts – To determine the facts court considers evidence Facts are information on which lawyers base their arguments to win cases – Evidence presented in trial is offered to prove facts supporting one's argument Use of evidence is used to convince court that litigant’s facts are the proper ones on which to base a decision  Types of Evidence Types of Evidence- – Real evidence – things Generally requires “sponsoring witness” “Best Evidence”: original writing, recording, or photograph – Testamentary evidence: presents narrative about what witness said, saw or did – Circumstantial Evidence: reasonable conclusions which come from other types of evidence Fingerprint evidence Agency: company allows employee to regularly negotiate contracts, can be used to infer that employee had authority to bind the company Corporate governance: absence of discussion in corporate minutes regarding a significant transaction can suggest actions were taken without proper authority or due diligence  More Types of Evidence Expert Testimony- Generally witnesses are not allowed to give opinions: court holds ultimate opinion on issues, but expert is allowed to give an opinion – Expert must be qualified by education, experience Judicial Notice – Court can accept a common fact as true  More Types of Evidence Affidavit: Written, sworn statement of a person – Person making affidavit must promise to tell the truth Court Clerks, Notaries or Taker of Oaths must verify that person making affidavit swears its true – Affidavits are weak evidence Not “done” in court so person making affidavit is not subject to cross- examination  Perjury Perjury is the act of lying/making false statements under oath, typically during legal proceedings – Oath is a solemn promise to tell the truth Often administered by a judge, lawyer, or other official Committing perjury is serious because it undermines the integrity of the judicial system – Can lead to miscarriages of justice Usually false statement must be "material" to the proceedings – Lie must have the potential to influence the outcome of the case Individual must have knowingly/willfully lied Simply being mistaken or misremembering facts does not meet the threshold for perjury Perjury is a criminal offense in most jurisdictions  Standard for Consideration of Rules of evidenceEvidence ensures that only reliable and relevant evidence influences the outcome of a case – 2 primary categories: Logically Relevant Evidence Legally Relevant Evidence Lawyers from both sides will strategically argue to exclude the other side’s evidence based on these criteria Logically Relevant Evidence – Evidence relates directly to the issues in the case – Example: In a contract case, evidence showing that the defendant understood and agreed to the terms of the agreement Defendant has failed to perform their promises under the terms of the agreed agreement  Standard for Consideration of Legally RelevantEvidence Evidence – Evidence should not violate certain legal principles that could undermine the fairness of the trial Prejudice: Evidence that might unfairly sway the court’s emotions (e.g., graphic photos in a non-violent case) Confusion of Issues: Evidence that introduces a complex, unrelated matter, confusing the court Misleading the Court: Evidence that might give a false impression, even if technically true Undue Delay/ Waste of Time : Evidence that takes up too much time without adding substantial value to the case Standard for Consideration of – Competency:Evidence Witnesses are generally expected to testify only about what they personally know or observed Example: A witness who didn’t see the crime but heard about it from someone else cannot testify about the crime itself – Impeachment: used to challenge the credibility of a witness, potentially discrediting their testimony Methods of impeachment: showing that the witness has lied in the past or has a bias – Court may reject or assign less weight to testimony that has been successfully impeached “Burdens” in a Lawsuit 1 - Burden of going forward: requirement to present sufficient evidence meeting the burden of proof on all elements of a claim - prima facie case 2 - Burden of proof Burdens of Proof: –Proof Beyond a Reasonable Doubt –Preponderance of the Evidence –Clear and Convincing Evidence –Probable Cause  Alternative Dispute Resolution (ADR) Negotiation Communication / persuasion - then - Mediation Neutral third party Assist in resolving dispute Arbitration “Rent-a-judge” American/Thai Arbitration Assoc Formal Arbitrator selected Acts as judge Alternative Dispute Resolution Advantages (ADR) Voluntary Often simpler, faster, cheaper Specialized arbitrators Private proceedings Choice of venue, language  Issue Spotting and Hypotheticals This is a suggested formula to analyze legal problems Think creatively - ”There are no answers only arguments” – FACTS -> Establish the important facts which will lead you to…. – RULE -> What is the law governing this issue? – ANALYSIS -> How does the rule apply to these unique facts? – CONCLUSION -> What should be the court's finding? What do you believe Is the answer?  You company is downsizing and letting go of 25% of the workforce in the UK. The jobs will be taken over by a subsidiary in Indonesia which has much lower labor costs. You are the CEO of this publicly traded corporation. How could you act ethically in this situation? A U.S. sleepwear manufacturer discovers that the chemicals used to flame proof children's pajamas might cause cancer if absorbed through the child's skin. These pajamas were then banned from sale in the U.S. Some US manufacturers sold the pajama material to distributors in other countries where there was no legal restriction against its use. Are the sales ethical? A monsoon rain hits town and all electricity is cut off and will not be restored for 2 weeks You run a hardware store which sells electrical generators. Knowing that demand should be high would you drastically raise the price of generators? Your company, produces bottled water. The water is taken from a well. The ground water that feeds this well is used by local farmers and the city for drinking water. The company is operating in an area experiencing severe drought. Local communities are protesting the continued extraction of water by your company. How should your company respond to the protests while maintaining its business operations? In the early 1970s, Ford Motor Company produced the Pinto, a small, fuel-efficient car that was popular among consumers. Unfortunately, the Pinto's design had a significant flaw: the gas tank was prone to rupturing and exploding in rear-end collisions. Internal company memos revealed the safety risks. In response Ford calculated the cost of changing the manufacturing process to fix the defective fuel tank compared to the cost from potential lawsuits Ford could suffer from customers injured. The cost benefit analysis indicated it was cheaper to pay the lawsuits than to change the design incorporating the safety improvements. Analyse this from the various ethical perspectives. THANK YOU FOR YOUR ATTENTION