Unit 4 Lecture Notes - Conflict Resolution

The players involved in a court proceeding include the judge and other court personnel, the jury, the plaintiff and the defendant.  In a trial court the judge decides legal issues and the (petit) jury, if there is one, decides factual issues.  Where there is no jury the judge decides both factual and legal issues.  Whether there is a jury is determined by whether one or both of the parties requested one and whether the matter before the court is one where a jury is permitted.  The plaintiff is the person or persons who brought the case.  The defendant(s) is the person who has been required to respond to the plaintiff's allegations.  Sometimes, particularly in matters involving the validity of regulations and other equitable matters, the terms petitioner and respondent are used.   Sometimes someone with an interest in the matter will desire to become a party to the suit after it has begun; such a person is called an intervenor.  Sometimes a person will wish to bring their views on the dispute before the court (since the decision may create a precedent that affects them) but they do not have sufficient interest in the dispute to become a party.  Such a person may become an amicus curae or friend of the court; their involvement is limited to filing a brief with the court that states their position on the legal issues involved in the case.

There are three basic types of courts: administrative, trial, and appellate.  Most of environmental law is of relatively recent origin, was created by statute, and is administered by federal and state agencies.  When an individual has a dispute with an agency, for example, the agency has assessed a fine for an environmental violation, there exists within the agency an appeal process that is more or less insulated from the enforcement side of the agency.  Those agencies such as the EPA that have formalized their procedures have administrative courts presided over by an administrative law judge to hear these appeals.  As a general rule juries are not permitted in administrative courts.  The administrative law judge decides questions of both fact and law.  If the individual is dissatisfied with the result he or she may appeal to a regular court.  Depending upon the matter being appealed and its authorizing statute, the appeal may be de novo or not.  If the appeal is de novo, the reviewing court holds a new trial, addressing both questions of fact and law.  If the review is not de novo then the reviewing court is restricted to the record developed in the administrative court and addresses only questions of law.

Trial courts have the power to decide both questions of facts and law.  Appellate courts are restricted to the record developed by the trial court and may address only questions of law.  This is a good point to distinguish questions of law from questions of fact.  A question of fact relates to what happens while a question of law relates to the law to be applied to a set of facts.  To use a simplistic example, in an auto accident case the question of whether the traffic light was red or green when the defendant entered the intersection is a question of fact.  A jury or a judge hearing the case will listen to all of the evidence and resolve any conflicts based upon an assessment of which witnesses are more believable.  A question of law addresses the meaning of a particular color of light.  Assume that the judge or the jury decides that the light was red when the defendant entered the intersection.  The judge must decide the legal consequences of a traffic light being red.  As we all know the legal meaning of a red traffic light is that the oncoming traffic must stop, yielding to the traffic on the cross street.

An appellate court is confined to the facts established by the trial court unless there is no evidence (or none that a rational judge or jury could use) to support the decision of the trial court.  Under such a circumstance the appellate court may still not collect new evidence; its only option is to reverse the trial court and send the case back for a new trial.

As noted above here are two types of juries, grand and petit.  A petit jury is convened to decide the facts in a particular case.  It is disbanded at the conclusion of the trial.  A grand jury sits usually for 18 months and serves a screening function for new criminal cases as well as an investigatory function.  Prosecutors bring prospective criminal cases before grand juries that are required to determine whether there is sufficient evidence to proceed with a prosecution of the defendant.  Grand juries may also investigate a wide variety of matters.   Grand juries have the power to compel testimony from witnesses via subpoenas.   Witnesses may refuse to testify based upon their Fifth amendment right against self-incrimination; however, they may be forced to testify if they are given immunity at least to the extent that their statements cannot be introduced against them in a subsequent criminal trial in which they are defendants.  Persons who refuses to testify may be held in civil contempt and imprisoned until either they testify or the term of the grand jury expires.  The federal system is constitutionally mandated to use the grand jury system; however, some states no longer use grand juries.

Jurisdiction is defined as the power of a court to hear a case.  It is one of the few issues that a court must raise even if neither of the parties did.  A court that lacks jurisdiction has no power to hear a case; even if it does anything that it decides is a nullity.  First, the court must have jurisdiction over the parties.  Jurisdiction over the plaintiff is achieved when the plaintiff voluntarily subjects herself to the jurisdiction of the court by initiating the case in a particular court.  Jurisdiction over the defendant is achieved when the defendant is served with process.  Process typically consists of a summons and complaint. The summons calls the defendant to court on a particular date and the complaint sets out the claims made against the plaintiff together with sufficient allegations of fact to support the claims. Individual defendants are generally served by the sheriff's office by "tagging" them with the process and thereafter leaving the summons and complaint with them. However, where a potential defendant is not amenable to being tagged there are alternative procedures such as publication in newspapers for completing service of process. For corporations and other entities other than individuals state laws generally provide that such entities must designate someone within the state who will accept service on their behalf. Where persons, properly serviced, do not appear at the appointed date, courts may award a default judgments against them, essentially giving the plaintiffs everything requested in their complaints. A defendant who has been serviced but believes that the court for some other reason (usually lack of contact with the jurisdiction) lacks personal jurisdiction must usually raise that issue, by motion to the court, before any other issues are raised or risk losing the issue.

Sometimes personal jurisdiction cannot be had but the defendant has property in the jurisdiction. Under such circumstances the case may sometimes proceed without even the name of the defendant being known. This type of jurisdiction is called in rem jurisdiction. So for example, if Wake County decides to build a school on a six acre site the county will bring a condemnation proceeding against the owner of the land they wish to use. Occasionally there will be property where the owner has died and no subsequent owner can be found. Under such a circumstance and after making proper inquiries and advertisements the county could proceed against the property itself. The defining characteristic of in rem jurisdiction is that the property is at the center of the dispute and any amount of money awarded cannot exceed the value of the property. A closely related type of jurisdiction is quasi in rem. Here the defendant is known but for some reason is not amenable to personal service; the plaintiff therefore proceeds against property owned by the defendant that may be found within the geographic jurisdiction of the court. The property usually has nothing to do with the dispute. This last type of jurisdiction is constitutionally suspect as not allowing the defendant adequate due process.

A second broad jurisdictional issue goes not to the parties but to the inherent limitations upon the power of the court. Courts may be divided into courts of general or limited jurisdiction. Courts of general jurisdiction may hear any matter that arises within their geographic boundaries. Courts of limited jurisdiction may hear only certain disputes defined by subject matter or dollar amount.

Venue is another issue that a court must decide before it can hear a case. Unlike jurisdiction venue does not go to the power of the court but rather to the convenience of hearing a particular case. The appropriate question in venue is whether this court is a convenient court within which to hear the case. Where the judge decides that venue is improper, the judge will usually transfer the case to another court rather than dismiss the case as would be done where jurisdiction is lacking.

Both jurisdiction and venue are preliminary matters considered pretrial. There are also a host of other pretrial matters for the court to consider if the parties raise them. Standing is one such; to have standing a party must have some actual injuries. People without actual injuries cannot, generally, be plaintiffs. Mootness means that the case is brought too late. So for example if a person sues the Forest Service to prevent cutting of a particular tract and the tract has already been cut by the time the issue reaches the court then the case is moot and must be dismissed. Ripeness is the opposite situation where a case is brought too early - for example a case to prevent cutting of a tract where no cutting has been proposed. Standing, mootness and ripeness all derive from the principal that courts will decide only actual, present disputes.

Discovery is another component of the pretrial stage of litigation. It is the chance for each side to discover information in the possession of the other. The U.S. legal system, despite Perry Mason, disfavors surprises at trial. A variety of devices are employed to affect discovery. These include exchanges of written questions (interrogatories), depositions of witnesses and parties, and exchanges of documentary information including computer files. Courts punish discovery abuses through a variety of means; at the extreme a party may lose there case and go to prison (where evidence was destroyed). Unlike other pretrial matters discovery obligations may continue throughout the litigation, with a continuing obligation on the parties to disclose any newly discovered information that is not privileged.

There are a wide variety of pretrial motions; however, two are of particular importance because they end the case without a trial. These are the motion to dismiss and the motion for summary judgment. Motions to dismiss may be either with prejudice or without prejudice. If a motion to dismiss without prejudice is granted the case is over, but may be refiled in the same or another court. If the dismissal is with prejudice the case is over and may not be refiled anywhere. A motion for summary judgment is a motion based upon the pleadings. The pleadings consist of the plaintiff's complaint and the defendant's answer to that complaint. If the plaintiff and defendant agree upon the facts in the case and disagree only as to how the law should be applied to those facts then summary judgment is appropriate. The case can be concluded without a trial.

After all pretrial issues, including jury selection, if there is to be a jury, are concluded the trial begins usually with opening statements by the attorneys for the parties. The plaintiff usually presents his case first, followed by the defendant. Each side is given the opportunity to cross-examine the witnesses presented by the other. The trial then concludes with closing statements by each party's attorneys. If there is a jury it retires to consider the issues before returning a verdict.

After the verdict the court may hear a variety of post trial motions. One motion that is usually made (and almost always denied) by the losing party is a motion for a judgment notwithstanding the verdict (a judgment as a matter of law in federal court).  This is sometimes called a motion for a J.N.OV., the abbreviation of the Latin term for the motion.  This motion is conceptually like a motion for summary judgment except that it occurs post-trial.  For a motion J.N.O.V. to be granted there must be either no evidence to support the verdict of the jury or no credible evidence to support the verdict of the jury.  If the judge grants this motion he sets aside the verdict of the jury and replaces it with one in favor of the moving party.  Out of the deference with which jury verdicts are held this motion is rarely granted.  A second likely motion post-trial is a motion for a new trial.  A wide variety of reasons such as procedural errors in the trial may be the basis of such a motion.  If granted the verdict is set aside and a new trial date is set.

After the judge has disposed of all motions, she enters a judgment and order.  If money was at issue the judgment indicates the amount that the defendant is ordered to pay.   The order contains any equitable (injunctive) relief; i.e., the things that the parties are ordered to do or to refrain from doing.  The plaintiff then dockets the judgment which causes it to attach as a lien to all real property owned by the defendant in the county where docketed.  Generally the judgment must be docketed in every county where the defendant owns real property.  If the defendant owns property in another state a separate legal proceeding must be brought in that state to domesticate the judgment. After domestication the judgment may be docketed in the counties of that state.   After the docketing of the judgment the plaintiff may then ask the sheriff to execute on the judgment.  The process of execution involves seizure by the sheriff of the defendant's personal property and sale of that property together with sufficient real property at public auction to satisfy the judgment.

If the losing party indicates that an appeal will be made and makes a proper motion to the court, the judge may stay entry of the judgment and the order pending appeal.   Sometimes the appealing party may be required to post an appeal bond while the appeal is pending.  There are two basic types of appeal.  Those that are "of right" are appeals that the appellate court must hear.  Discretionary appeals are those that the appellate court has the power to refuse to hear.   Discretionary appeals are generally only heard if the judges on the appellate court believe that they present important issues that apply beyond the immediate case.

Law and equity are terms that one often hears and the definitions of which one must understand.  Matters that are said to be at law involve claims for money.   Matters in equity involve nonmonetary issues.  Equitable claims usually request injunctive relief.  Injunctive relief is in the nature of a court order that either requires some action or prohibits some action.  There are three types of injunctive relief depending upon the stage of litigation.  A temporary restraining order (tro) is an ex parte (meaning that it was granted without the defendant being heard) order granted for short duration to protect the moving party until both parties can be heard in an initial hearing.  If there are adequate grounds the tro can be converted to a preliminary injunction at the initial hearing.  A preliminary injunction is designed to preserve the relative positions of the parties for the duration of the litigation.  If the plaintiff wins at trial the preliminary injunction may be converted to a permanent injunction.  Permanent injunctions are potentially perpetual in duration unless limited by there own terms or by circumstances.

Juries are used only in matters at law to decide issues of fact (they are also used to decide factual issues in criminal cases).  Trial judges always decide issues of law.   Only trial courts can decide issues of fact.  Appellate courts decide only issues of law; appellate courts are bound by the factual determinations of trial courts below them, except that appellate courts may overturn trial court decisions that have no rational basis in fact.  However, even in such a circumstance the appellate court cannot take evidence - it must return the case to the trial court for a new trial.