Settling Disputes

Chapter 4Street Law Text

pp. 40-45

• Conflict and resolving that conflict is an important part of the legislative process and everyday life.

• Those who can collect the facts, formulate an opinion, listen to competing idea, and discuss and debate the best course of action are those who tend to be the most successful in life.

• Conflict and controversy will happen in life and if we view not as a bad thing but as something that can be productive conflict becomes a learning experience.

• There are many ways to handle conflict from informal discussions to going to court, but going to court is not always the best answer and sometimes makes a situation worse.

Methods for Solving Disputes• The main methods for solving disputes are informal discussion,

negotiation, mediation, arbitration, and court action.• Negotiationis the process by which people involved in a dispute

discuss their problem and try to reach a solution acceptable to all.• Negotiation is the most common of the dispute resolution

techniques. It is used all the time from children/parents, employee/employer, spouses, siblings, buyer/seller, etc.

• A settlementor agreement [usually in a civil case, prior to a judges ruling] that is agreed upon by both sides. A settlement can be reached in most cases prior to the conflict going any further.

• Some negotiations are a difficult. Thus may not resolve the conflict, then usually in business and certain cases they move to mediation.

• Mediation is when a third person is brought in and helps the disputing parties settle their differences.

• The mediator acts as a neutral third party that listens to both sides, mediation is voluntary, and the decision of the mediator must be agreed upon by both sides.

• Mediators are used any many different areas from local government and communities to universities and even in business. [BBB] or Better Business Bureau may help mediate disputes between consumers and sellers. Ombudspersons are professional mediators that investigate complaints and then help the parties reach some agreement.

• Arbitration is when both parties in a dispute agree to have another person[s] listen to their arguments and make a decision for them. Arbitration caries the weight of law. [unless it was non-binding arbitration]

Problem 4.1

a. Two sisters share a room. However, they disagree over how the room should be arranged and decorated.

b. A new plasma television breaks after two weeks, and the salesperson refuses to fix it.c. A landlord will not make needed repairs because he believes the tenant caused the

damage.d. A fast food restaurant and an employee disagree over the wages and conditions of

employmente. The Internal Revenue Service sends you a letter claiming that you owe another

$2,000 in taxes. You disagreef. Carl invites Raquel to the prom, and she agrees to go with him. Then Miguel invites

her to the prom. Raquel really wants to go with Miguel and accepts his invitation. Carl finds out about her decision after he has purchased flowers and paid for a limousine to take them to the prom.

Examine the following situation and decide the best method for solving each problem. Consider informal discussion, negotiation, arbitration, mediation, going to court, seeking help form a government agency, and other methods. Explain your answers.

The Court System

Chapter 5Street Law Text

pp. 46-62

• In the United States there are many courts systems at the State and Federal levels.

• Each system has trial and appeals courts.• There are tribal courts that hear cases on

reservations.• No court is higher or has more power than the

United States Supreme Court. The Supreme Court can hear cases from almost any of the lower courts.

Trial Courts• Listen to to testimony, consider evidence, and decide the facts in a

case. Evidence is provided by witnesses who are called to testify in the case. Parties

• Are those “sides” involved in a trial.

Plaintiff• In a CIVIL case, the person harmed that files a lawsuit. The

person that sues.Prosecutor

• The person that represents the “state” in a CRIMINAL trial that tries to prove the guilt of a person.

Defendant• The person accused of a crime in a CRIMINAL case, or the

person being sued in a CIVIL case.

Adversarial System• A trial system in which there is a contest between opposing sides.

• This is what the United States has as its basic trial system• The theory is that the Judge or Jury will be able to determine the truth if

the opposing parties present their best arguments and show a weakness in the other side’s case.

Inquisitional System• A trial system in which the judge is active in questioning witness

and controlling the court process, including the gathering and presenting of evidence.• This is what, for example, Great Britain has as its basic trial system• These judges can order witnesses to appear, conduct searches, present and

comment on evidence, and, in general, take the lead role in trying to uncover the truth.

• Critics of the adversarial system say that it is a battle to win, and not for the ideals of “truth” or “justice”.

Problem 5.1a. Do you think the adversarial system is the best

method for solving disputes? Why or why not.b. Indicate whether you agree or disagree with

the following statement: “It is better that ten guilty persons go free than that one innocent person suffer conviction.” Explain.

• In a criminal case, should a lawyer defend a client he or she knows is guilty? Would you defend someone you knew was guilty? Explain.

Trial Courts cont.• The judge in a trial has the duty to not only protect the

rights of those involved but to make sure the attorneys follow the rules of evidence and trial procedure.

• We have the right in the United States to trial by jury in both criminal and civil cases. We have much broader rights to that jury in criminal cases.

• Most cases in the United States are settled out of court.• In a civil case a settlement is most often reached between

the parties and their attorneys prior to court.• In criminal cases a Plea Bargin or pretrial agreement

between the defendant and his or her lawyer and the prosecutor disposes of the case.

Trial Courts cont.• Juries are made up of citizens that are at least 18, speak

and understand English, and are residents of the area where the case is being tried.

• In the past people in certain positions or occupations were exempt from serving on a trial, that is not the case in most places today.

• Some people called for jury duty may receive a “hardship” or excuse from the court so they don’t have to serve.

• In Nebraska the juries are selected from a pool of those registered to vote and those holding a drivers license or State Identification and are at least 19 years of age.

• Nebraska Supreme Court Jury Service Page.

Voir Dire• Examination of prospective jurors, to decide if they

are able to serve on the jury.

Removal for Cause

Peremptory Challenge

• Removing any juror who appears incapable of rendering a fair and impartial verdict

• Examples would be: knowing either party, being in a similar business, overly opinionated on an issue dealing with the case, etc.

• Removal of a juror without stating a cause. Attorneys only have a limited number of this type of removal.

Problem 5.2a. What reasons can you give for excluding from

jury service member of the clergy, attorney, physicians, police officers, and convicted felons? Should everyone be required to serve on juries? Give your reasons.

b. If you were a defense attorney questioning jurors at the voir dire in a murder trial, what questions would you ask potential jurors?

c. For what reasons might an attorney use a peremptory challenge?

Appeals Courts• Courts that hear appeals or retry a case from a lower court

Error of Law• A mistake by a judge as to the application of the law.

• Giving the wrong instructions to the jury• Allowing or not allowing evidence

• An opinion written by a judge that does not agree with the majority opinion

Precedent• Court decision on a legal question that guides future cases

with similar questions

Concurring Opinion

Dissenting Opinion

• An opinion written by a judge that agrees with the majority opinion for a different reason then what was expressed

Nebraska CourtsNebraska Court System Info

Supreme CourtChief Justice and 6 associate JusticesJustices represent 6 Districts reapportioned after each censusChief Justice is selected by Governor Associate Justices by a Judicial

Nominating Commission by DistrictHear Appeals from lower courtsRegulate the practice of law in Nebraska

Nebraska Court of AppealsCreated 19916 Justices serving in 2 teams of 3Hear Appeals from Lower CourtsCan be skipped by a Petition to Bypass approved by the Supreme

Court

Nebraska Courts cont.Nebraska District Courts

12 Districts with 55 JudgesOriginal Jurisdiction IN

Felonies, Equity cases, and Civil cases over $52,000Concurrent Jurisdiction with County Courts

[Misdemeanors rarely heard]Red Willow in 11th District David W. Urbom- Judge

John J. Murphy & Donald E. Rowlands [Lincoln County]James E. Doyle [Dawson County]

Clerk of District Court in Each County performs Administrative DutiesRed Willow County- Beverly Dodge

Nebraska Courts cont. Nebraska County Courts

12 Districts with 59 Judges Original Jurisdiction IN

misdemeanor cases, traffic and municipal ordinance violations, preliminary hearings in felony cases, civil cases involving up to $52,000, small claims cases, some divorce cases, probate, guardianship, conservatorship and adoption proceedings, and juvenile matters

Concurrent Jurisdiction in Misdemeanor with District Court Serves as the Preliminary court for felonies May have a small claims division Red Willow County in 11th District Judge Anne Paine

Kent B. Turnbull & Vacancy [Lincoln County] Carlton Clark [Dawson County] Edward D. Steenburg [Keith County]

A Magistrate serves as the Administrator of the County Court may also have power to accept traffic pleas, perform marriage, and set bail

Red Willow County Magistrate- Cathy Clapp

State and Federal Court Systems

Federal Judicial Circuit Courts

Problem 5.3

a. A state sues a neighboring state for dumping waste in a river that borders both states.

b. A wife sues her husband for divorce.c. A person is prosecuted for assaulting a neighbor.d. Two drivers crash their cars into each other. One

driver sues the other for medical bills and car repairs.

e. A group of parents sues the local school board, asking that their children’s school be desegregated.

For each case, decide whether it will be tried in a federal or state court. To what court could each case be appealed? Explain. Then give an example, different form those listed, of a case that could be heard in a state court and a case that could be heard in a federal court.

Tribal Courts• There are several hundred Indian tribal groups that govern reservations

in the United States today. They are not soveriegn nations or have total authority over their reservations; they do though retain some of their original authority.

• Inherent Powers assumed powers because of tradition and common law. In this case the Tribe has the power to regulate family relationships, membership in the tribe, and law and order.

• Delegated Powers powers granted by the government, the people, or a document. These are also called expressed powers.

• Today the Supreme court allows the Tribal court system broad powers in civil matters on the reservations, but they limit their power in criminal matters. If a felony takes place on the reservation the federal government has jurisdiction.

• The Court has ruled that inherent tribal authority no longer includes the authority to prosecute non-Native Americans for crimes on the reservation. Those crimes are prosecuted in Federal Court.

The Supreme Court• The nine Justices of the Supreme Court hear appeals from lower courts.

Around 800 Petitions for Certiorari or requests from lower courts to send cases to the Supreme Court, are filled per year but only around 80 cases are heard by the Court.

• The way cases are chosen are by the “rule of 4” which means 4 out of the 9 Justices must agree to hear a case for the request to move forward.

• The Supreme Court is not a trial court… the court proceedings are not like the traditional adversarial courtroom hearing. In the Supreme Court the parties involved write briefs arguing how the case should be decided. Each party then at the hearing has 30 minutes to present its case. The Justices will then ask questions before meeting in private to decide the case.

• The Supreme Court decides many more cases 9-0 than 5-4. The media likes to “make news” with the controversial decisions but the court tends to see the law for what it is and rules that way.

• Stare Decisis- the rule that precedent must be followed [to stand by that which is decided] Is the fundamental process that makes the Supreme Court’s decisions apply to all Courts in the United States.

Chief JusticeJohn Roberts09/05 G.W. Bush

The Supreme Court Today

Clarence Thomas

10/91 G.H.W. Bush

Antonin Scalia9/86 Reagan

Anthony Kennedy2/88 Reagan

Ruth Bader-Ginsburg8/93 Clinton

Stephen Breyer8/94 Clinton

Samuel Alito1/06 G.W. Bush

Sonia Sotomayor8/09 Obama

Elena Kagan7/10 Obama

Problem 5.4 “Gideon v. Wainwright”

a. In the case of Gideon v. Wainwright, what was the precedent that the Supreme Court set? Who has to follow this precedent?

b. Who would have had to follow the precedent if the case had been decided by a judge in a state supreme court.

c. Does the Gideon case apply if you are charged with a misdemeanor? Does it apply if you are sued in a civil case?

Problem 5.5a. Your are legal counsel to the president. One of the Supreme Court justices has just announced

his resignation. Many groups and individuals are suggesting names of people they think should be nominated by the president. Write a memo to the president describing the type of person who should be nominated to the U.S. Supreme Court.

b. As legal counsel to the president, look at the following characteristics of potential Supreme Court nominees. Rank them from most important too least important. Be prepared to give your reasons.

- 45 years old- Hispanic American- Female- Graduated first in class from a top law school- Respected trial court Judge- Smoked marijuana while a law professor 20 years ago- Believes that affirmative action is unconstitutional- Believes in a woman’s right to an abortion-Lives in California (assume there are no current justices from the west coast)- Practicing Catholic (assume there are no Catholics on the court)

c. Assume you are a member of the Senate Judiciary Committee. A nominee for the Supreme Court has an excellent reputation as a lawyer and lower court judge but is likely to vote, if confirmed, to overturn the case that established a woman’s right to choose an abortion. Voters in your state tend to support the right to choose. How would you vote on the nominee?