Dispute Resolution PDF

DISPUTE RESOLUTION Civil Action Pleas: Liable Not liable Criminal Action Pleas: Not guilty Guilty No contest Alford plea  NOT GUILTY- THEN Steps following a Not guilty plea- WHAT?...

DISPUTE RESOLUTION Civil Action Pleas: Liable Not liable Criminal Action Pleas: Not guilty Guilty No contest Alford plea  NOT GUILTY- THEN Steps following a Not guilty plea- WHAT? Trial Date set 2. Type of Trail 3. Pretrial Motions A case will be assigned a It is important to remember If a pretrial hearing is scheduled, pretrial or trial date following a that a person can face either a the prosecution and defense will meet on the scheduled day to not guilty plea. bench trial or a jury trial. make arguments before a judge During a bench trial, your about the evidence and In some cases, a case might case will be heard by a judge testimonies involved in a case. still be dropped even after a rather than a jury. During pretrial motions, it is also date is established. possible to present a motion to dismiss. NOT GUILTY- THEN Steps following a Not guilty plea- WHAT? 4. Jury Selection 5. Trial If a defendant selects a jury During a trial, the prosecution trial, the jury selection process will be required to establish will likely be the next step. that the defendant is guilty beyond a reasonable doubt. Trials are complicated and often long, and it can be a difficult decision to proceed to trial. GUILTY- THEN WHAT? A plea of guilty means The accused can that the act with which enter a guilty plea by you are charged is means of accepting a prohibited by law, that plea deal from the you committed the state. While a defendant’s guilty plea does act, and that you have not automatically waive the right to an appeal, many plea agreements require no defense or excuse that a defendant affirmatively waive the for the act. right to appeal.  Conviction GUILTY- THEN WHAT? Waiver ⚬ By submitting a guilty plea, a defendant waives a number of constitutional protections. ￭ waiver of the right to a jury trial ￭ the right against self-incrimination ￭ the right to confront witnesses. ￭ improper search and seizure, false confession, entrapment, or prosecutorial defects ￭ violation of the right to a speedy trial or a statute of limitations claim.  GUILTY- THEN WHAT? Voluntariness Requirement ⚬ A guilty plea is only effective if it is made voluntarily, knowingly, and intelligently. ⚬ The voluntariness requirement mandates that the defendant be legally competent at the time the plea is entered. ⚬ Legal competence requires that the defendant understands the proceedings against him and is able to meaningfully consult with his defense counsel.  PLEA OF NOLO CONTENDERE (NO CONTEST) A plea of nolo contendere means that you do not contest (challenge) the State's charge against you. You will almost certainly be found guilty. This plea cannot be held against you in a subsequent civil suit for damages. If you plead no contest instead, you admit nothing and maintain that you are innocent. You are simply saying that you prefer not to put yourself and your family through the expense and stress of a court case. Again, you do not need to defend yourself, and the court will hand down a sentence right away.  ALFORD PLEA An "Alford plea" is named after a U.S. Supreme Court case that allows the defendant to be sentenced while claiming their innocence. An Alford-type guilty plea means the defendant decided it would be better to be sentenced than to take their chances in a criminal trial, which could lead to the maximum sentence. The criminal consequences of an Alford plea are the same as pleading guilty or no contest. The defendant still has a criminal conviction on their criminal record.  ALFORD PLEA One of the ways an Alford plea is different is where there is civil litigation related to the criminal trial. ⚬ For example, if you are charged with drunk driving and injuring a pedestrian, that pedestrian could use your guilty plea as an admission of guilt in a civil trial for damages. Maintaining your innocence using an Alford plea could benefit your defense in a lawsuit. DISPUTE RESOLUTION WHAT IS IT? The process of resolving disputes (disagreement) between parties. The term is sometimes used interchangeably with conflict resolution  METHODS Pro se (self-help) Plea bargaining Mediation/Alternative Dispute Resolution (ADR) Arbitration Civil action vs Criminal action  PRO- SE AS A PRO SE LITIGANT, YOU ARE ACTING AS YOUR OWN ATTORNEY. YOU WILL BE EXPECTED TO KNOW AND FOLLOW THE LAW AND COURT RULES JUST AS ANY ATTORNEY, INCLUDING THE TEXAS RULES OF EVIDENCE, TEXAS RULES OF CIVIL PROCEDURE. IF YOU FAIL TO FOLLOW THE RULES, YOU MAY PERMANENTLY LOSE IMPORTANT RIGHTS. THE JUDGE, COURT STAFF (INCLUDING THE COURT COORDINATOR, COURT CLERK, COURT REPORTER, BAILIFF), AND OPPOSING COUNSEL CANNOT GIVE YOU LEGAL ADVICE.  PRO- SE YOUR REQUESTS TO THE COURT SHOULD BE MADE IN A WRITTEN MOTION. YOU MUST SEND A COPY OF EVERY PLEADING YOU FILE WITH THE COURT TO THE OPPOSING ATTORNEY, OR PARTY (IF THEY DO NOT HAVE AN ATTORNEY). AT THE HEARING, A DISTRICT JUDGE WILL HEAR YOUR CASE. EACH PARTY WILL HAVE A CHANCE TO TELL HIS OR HER SIDE OF THE STORY. IT IS IMPORTANT TO BRING YOUR PAPERWORK AND YOUR EVIDENCE SUCH AS PHOTOS, WITNESSES, BILLS, RECEIPTS, CONTRACTS, OR ANYTHING ELSE THAT WILL PROVE YOUR CASE.  Pro-se Activity: Research one of the following notable pro-se cases. Summarize the case and make sure to identify if they were successful in their pro-se approach- why or why not? Clarence Gideon Ted Bundy Robert Kearns Jim Traficant Karen Beth Young (Young v Facebook)  MONETARY Pro-se $ $ $$ $$$$ $ $  MEDIATION Mediation is an informal process in which a neutral third party – known as a Mediator – helps you and the other party reach an agreement on some or all of your differences. MEDIATION PROCESS The mediator helps the parties: identify important issues clarify misunderstandings explore solutions negotiate a settlement rather than going to trial In mediation, decision-making by the parties must be voluntary, so only those issues upon which both parties can agree will be included in the settlement.  Roles of a Mediator Parties negotiate with the help of trained mediators who are neutral and impartial The mediator does not interfere but allows the parties to have control of the process The role of the mediator is to facilitate discussion and ensre both parties are being heard The mediator does not need to be an expert in the field in question They will NOT make any decisions  PURPOSE The aim of mediation is to allow the parties to have their say without being restricted by the rules of evidence and procedure It allows parties to investigate the underlying reasons for the problem It promotes a win-win solution where both parties are happy with the outcome ADVANTAGES It costs less than court action It can be less emotionally draining Parties have control of the outcome Promotes a win-win outcome Suitable where parties will maintain an ongoing relationship Focuses on future actions rather than past faults improves communication Frees up the court system RESTRICTIONS Parties will only work when both parties are willing to negotiate Mediation is unsuitable in situations where: ⚬ Parties have no ongoing relationship ⚬ The dispute is highly emotional or sensitive ⚬ The dispute involves violence or threatening behavior ⚬ There is an imbalance of power between parties The outcome is NOT legally binding  MONETARY Pro-se Mediation $ $ $$ $$$$ $ $  ARBITRATION Arbitration is a An independent It is more formal than method of resolving arbitrator will listen to mediation, but not as disputes without both sides and make a formal as a court hearing having to access the decision that is binding court system on the parties Unlike mediation, the decision IS legally binding  MONETARY Pro-se Mediation Arbitration $ $ $$ $$$$ $ $  TRAIL After all other avenues fail or agreements are not met, the last option would be to take the case to trial. Bench trial Jury Trial In most cases, this would result in the client retaining an attorney for the entire trial process.  MONETARY Pro-se Mediation Arbitration Trial $ $ $$ $$$$ $ $