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Civil Litigation

Preliminary Matters

Preliminary Matters

In the case of civil litigation and lawsuits, there are many things that need to be addressed and considered before an actual lawsuit can be claimed. Lawsuits can prove to be complicated matters, and certain provisions must be adhered to in order insure that matter at stake is assessed accordingly. 
Lawsuits are considered to be officially levied when the plaintiff files the appropriate documentation with a particular court’s clerk office. However, there are preliminary matters that must be considered in order have lawsuits appropriately prepared. Some preliminary matters that attorneys must address may include:
• Whether or not there is a legal basis for the lawsuits 
• Who is available to be sued 
• Which venue and jurisdiction of the courts is the lawsuit to be heard 
• Whether or not the statute of limitations has expired as dictated by law 
• Whether there is any administrative agency to must be consulted before filing the lawsuits 
Though some of the preliminary matters in lawsuits seem to be commonplace in terms of logical procedure, it is important to place particular attention to the statue of limitations in lawsuits. Statutes of limitations are laws that provide for certain deadlines or expiration dates for filing lawsuits. 
Certain lawsuits must be filed within the allotted time after an event has occurred, which is considered to be the source of the claim. Statutes of limitations will vary depending on the nature of the matter at hand, as well as the provisions provided by state laws. Statutes of limitation will be different depending on the state. Concurrently, statutes of limitations will also vary on the nature of the lawsuits. 
For example, a misdemeanor crime must be prosecuted within two years that such action was committed. If a person is prosecuted for misdemeanor crime that occurred five years ago, the lawsuit will be thrown out, for the statue of limitations have expired, and such an individual can not be prosecuted for that particular crime. Also, certain legal contracts may also be subject to statutes of limitation. 
Preliminary matters can also involve intensive research to be conducted by the attorneys that is necessary to determine the best course of action. This may include the research of applicable laws and provisions, related cases, and the analysis of court rules. In certain lawsuits, locating witnesses that are crucial to the case may also be the attorney’s responsibility.
Once the attorney has considered the pertaining appropriate preliminary matters of lawsuits, then the actual filing of a suit can be carried out, which is followed by the pleadings state. Barring the case that the parties do not file for pretrial motions, they would begin the discovery, which is the process by with each side attempts to gather as much information as possible regarding the case and the opposition’s stance. 
After the review of the facts and evidence rendered by the discovery, both parties may enter a negotiation for settlement, the court may dismiss the lawsuit, or trial is set to begin.

What Alternative Assistance Is There In Litigation?

What Alternative Assistance Is There In Litigation?

Preliminary Matters


Arbitration

The arbitration method of alternative dispute resolutions has its roots as early as Ancient Greece and Rome. However, its modern application as it exists dates back to English law, with the Arbitration Act of 1697. The practice of arbitration to help settle dispute between opposing parties has been implemented throughout time, and has proven to a viable method today, particularly with disagreements dealing with international commercial contracts. 
With technology being as advanced as it is today, arbitration can even take place online, in which the claim is filed online, and the judgment is reached based upon the documents uploaded by both parties. Arbitration helps disputing parties resolve the disagreement by an impartial third party, with the hopes of avoiding bringing the matter to court.
Mediation
It is not a surprise that mediation has similar roots as arbitration in its relation in law history. Ancient Rome recognized the practice and went as far as delegating the third party mediator an actual title. In some cultures, a mediator was considered a high cultural position with an important function in the society. Mediators in some ancient civilizations also were tribal chiefs or wise men held in high regard. 
Mediation is similar to arbitration, but they are not one in the same. The differences are many, but one of the main distinctions is that a mediator does not actively provide for a decision in mediation. The opposing parties themselves are responsible for creating the negotiation and settlement, and the mediator simply facilitates the process.

Summary Jury Trials

Summary jury trials are a relatively new option in terms of alternative dispute resolutions, but are proven to become a more popular avenue explored by disputing parties. The ultimate purpose behind a summary jury trial is to essentially give the involved parties an opportunity to reconsider other alternative dispute resolutions before entering an actual court trial. A summary jury trial is essentially a mock trial, in which the court proceedings occur as if the matter was being tried in court, but in curtailed and concise fashion. A verdict is rendered by the jury, which is unaware that the proceedings are non-binding. This gives the parties the opportunity to preview how the matter is to be resolved real world situation in a jury trial.

Roles of Paralegals in ADR

Alternative dispute resolutions, for the most part, center around the actual participation of the involved parties in resolving the disagreement for themselves, without having to enter the judicial court system to render a decision. However, that is not to say that the proceedings do not involve legal and technical terms. The assistance and employment of a paralegal can certainly provide for an advantage throughout the proceedings in ADR, and would prove to be a beneficial consideration for the involved parties. A paralegal has a number of responsibilities or duties in ADR proceedings to the extent that paralegals can strictly specialize their careers in ADR proceedings. Paralegals help their respective parties understand the legal and technical terms, as well as help draft the necessary materials such as settlements or negotiations, and binding terms.
Evaluation of ADR Techniques
Alternative Dispute Resolutions methods are employed to keep disputes and disagreements between two parties to evaluate whether the matter can be resolved or negotiated outside of the court room. Therefore, any kind of legal dispute that can be litigated can be subject to alternative dispute resolutions. This may include, but is not limited to, labor relations, insurance matters, business disagreements, family problems, employment, public policy, commercial and industrial trade, and technology matters. However, it is important to be knowledgeable of the ADR techniques and how each functions for certain methods may prove to have better applications in certain fields than others.

What are Some Alternative Dispute Resolutions?

What are Some Alternative Dispute Resolutions?

Alternative Dispute Resolutions are employed by parties involved in legal disputes as a way to circumvent bring the case to the courts, while also providing for a more beneficial solution to the parties involved. More often than not, ADR options will be primarily considered in disagreements to evaluate the potential of reaching a solution without the need of the judicial system. Three of the most common ADR techniques employed are arbitration, mediation, and summary jury trials.
Arbitration is one of the oldest techniques of ADR, and are typically employed when the subject matter at hand will necessitate a third party overseeing the proceedings that has extensive knowledge on the subject or pertinent experience that will help reach mutually beneficial decision to both parties involved. The third party, known as an arbitrator, essentially serves as a judge to render a decision based on the facts and allegation provided by both parties. However, the arbitrator is to be completely removed from the actual process of both parties in reaching a compromise. 
The arbitrator is simply there to provide expert opinion and advice, and help determine any plausible liability and the extent of damages. Paralegal assistance maybe necessary for the involved parties to help with the legal aspects of the proceedings. Arbitration is commonly employed in the commercial disputes, particularly those arising from international transactions. Arbitration can be binding or non-binding.
Another commonly employed ADR technique is mediation. Mediation is similar to arbitration, though in this case, the third party-the mediator-has an active role in the proceedings. The mediator is a neutral party which helps the involved parties negotiate a compromise or agreement. In essence, a mediator helps communicate the arguments of each side in an effective manner so as to structure the negotiations to be mutually beneficial for those involved. The mediator, even though active in the actual process, does not have the authority to render an actual decision in the dispute. 
However, the mediator can provide for alternatives and advice to be considered by the opposing parties that may further prove to be beneficial in the final negotiation or settlement. Paralegal assistance may not be as necessary for mediation as it is in other methods of ADR, for the actual process is carried out by the involved parties. However, paralegal assistance may prove to be beneficial in terms of dealing with the involved paperwork and other legal aspects. Mediation is common to be an option for any kind of dispute, for its nature provides for the option to settle out of court before the matter is brought to trial.
Summary jury trial is a relatively new ADR technique when compared to the other methods. It has become a more popular employment of ADR in the sense that it provides a facet that other techniques may not consider in the proceedings–the opinion of a jury. A summary trial essentially is an abbreviated trial that is presented to an actual jury. Litigation procedures that normally occur in court are also used, but simply in a curtailed and timely fashion. 
The jury renders a non-binding verdict which allows both parties to preview how their dispute would fair if ever taken to the courts. Typically, the summary jury trial is employed when previous methods of ADR, such as mediation or arbitration, prove not to render a negotiation between both parties. This may occur when the parties are so entrenched and convinced of their case that a settlement would undermine their position. 
Furthermore, many will consider taking the matter to trial if they believe that a jury verdict in their favor would prove to be more beneficial than having compromise in a settlement or negotiation. However, the summary jury trial provides for a step to be taken before actually entering the dispute into the judicial courts, and gives a glimpse as to how their case may be tried in a real world situation. Paralegal assistance can be employed with the same intentions as if the case were to be entered in to a real trial.

The Right to Jury Trial Jury Selection

The Right to Jury Trial Jury Selection

In the case that any legal dispute is to enter the litigation process in the courts, both parties are guaranteed the right to a jury trial. A jury is a sworn body of individuals that is gathered by court order for the purpose of rendering an impartial or unbiased verdict. In the case of a trial jury, the jury hears the evidence that is presented by both parties involved in the legal dispute in question. 
The judge does not influence the jury to render a decision, however, is involved in the process on the basis that judge may provide for certain instruction or information regarding as to how evidence is to be regarded, or provide for further knowledge in terms of law interpretations. After the claims, arguments, and evidence is presented by both parties, the jury then retires for deliberation, and to render a verdict. All verdicts rendered are contingent to have special considerations such as the decision be unanimous. However, depending on the court’s jurisdiction, the verdict must be rendered to a majority decision. 
A jury that does not successfully obtain a majority or unanimous consent on the rendering of a verdict, is considered a hung jury. The number of individuals that comprise a jury will vary, however the most common number tends to be twelve in criminal cases. Civil cases may only require six jurors.
The right to jury trial is granted under Constitutional laws of the United States. The right to a jury trial is guaranteed under the Sixth Amendment of the United States Constitution. Under the Sixth Amendment, the right to a jury will be contingent on the nature of the dispute at hand. However, the right to jury is upheld for any applications that can be considered under the umbrella of Common Law. The Sixth Amendment also requires that all juries are to be impartial. 
Each participating party in the trial will have the opportunity to question potential jurors to determine if any bias exists so as to avoid a wrongful verdict. If a bias is to be found, the juror may be challenged, and the court will determine whether the claims of bias by a particular party are founded, and thus preventing that particular juror to participate in the jury of that trial. A jury is also to be comprised from is considered to be a “fair cross-section of the community.” 
The right to jury trial also includes certain provisions provided by the Sixth Constitution, such as public trial and a speedy trial. Certain provisions are provided so as to protect the accused party from unfair treatment. If such provisions are not adhered to by the court systems, the legal suit itself may be dismissed.
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