The Judicial System

      Resolution of disputes between litigants has traditionally been handled through an extensive judicial system. In the U.S. there are two separate court systems that have been available to disputing parties: the federal courts and the state courts. The choice of the particular court system is determined by a variety of factors, the most important of which are whether the issues involve a federal or state law, and the citizenship of the litigants.

      The federal courts alone have jurisdiction over most laws federal and the U.S. Constitution. However, there are a number of federal statutes that permit concurrent jurisdiction to state courts. Examples of   these are violation of civil rights, sexual harassment and Racketeer Influenced and Corrupt Organizations Act. 

      If the litigants are domiciled in different states of the United States, or countries, they may also bring their action in a federal court, of proper venue, typically where the cause of action arose. Such an action may invoke the jurisdiction of a federal court upon demonstrating “diversity” of domicile of the litigants. However, such litigants have the choice of the state courts as well. On the other hand, citizens domiciled in the same state must file their action in the state court where they are resident or where the cause of action arose.

      The federal courts have three levels: The District Court is the court of first instance where the action is instituted, and has unlimited jurisdiction as to monetary amounts. The Court of Appeal is the appellate forum above the District Court. The court of final appeal is the Supreme Court of the United States.

      The state courts have a similar hierarchy, except that courts of first instance may be more than one, where jurisdiction is determined by “the amount in controversy”. For example, in California, the minimum jurisdictional limits of the Superior Court, a court of first instance, is $25,000, with no upper limits on its jurisdiction. Cases with amounts less than $25,000 in controversy fall within the jurisdiction of the Municipal Court.

      Litigants in both federal and state courts are entitled, as a matter of constitutional right, to trial by a jury. However, the parties to an action have the right to waive trial by a jury and may submit their matter to a judge. Most criminal and tort cases are tried by juries. On the other hand, in cases involving business disputes, there has been a tendency to favor trial by  judges rather than by a jury.

      It is to be noted that the function of the jury is to function as a “trier of fact” only, and cannot make determinations regarding questions of law, which remain within the exclusive purview of the judge. In a trial, the judge will instruct the jury on the law applicable to the particular facts of the case, upon which the jury is to base its verdict.

      Further, the judge is the only person authorized to try “equitable” causes of action, such as injunctions, specific performance and declaratory relief.


Arbitration and Other Dispute Resolution Mechanisms

      In recent years arbitration and mediation have become increasingly popular methods of resolving disputes. These have, typically, been conducted in a private forum. However, their success has led them to become incorporated into the judicial system where the litigants are ordered by the court to go through “alternative dispute resolution” (ADR), with a hope to resolving the matter without a trial.

      Numerous private bodies have come into existence that provide arbitration and mediation services. They maintain panels of retired judges and eminent lawyers who act as the arbitrators or mediators.

      Parties will often go through ADR usually after they have been in litigation for some time, and had an opportunity to engage in discovery. This is felt be the most beneficial as the litigants have had opportunity to ascertain information to test their own theories and those of their opponents.

The Litigation Process

      Litigation is an "adversarial" process in the American legal system. As such, the parties are charged with the responsabiltiy of conducting their own investigation and discovery to eventually present their findings as evidence to a judge or jury for a final determination of their dispute. No inquiry is conducted by the court to determine facts of the case as a function independent of the evidence presented by the parties at the time of trial. It is for the parties to ascertain all information they feel relevant, and present it to the trier of fact in the manner they feel is most advantageous to their case. The judge and jury are bound to make their factual findings based only upon the evidence presented in court and cannot make any independent inquiry.

      The process is usually commenced by one party filing a complaint in the court of proper jurisdiction, which is served upon the opposing party. Once the other party has filed its response to the complaint, both parties commence “discovery”. This consists of demands for information by each party from the other, and also from persons believed to be witnesses to the facts of the case. Such information may be sought in writing, or by way of oral questions and answers through the process of “depositions” which consist of obtaining oral testimony under oath. A litigant can compel the giving of such testimony against parties and even non-parties to the litigation, through the court. Written discovery is conducted by serving interrogatories, consisting of written questions requesting specific information, requests for production of written documents, and requests for admissions of specific facts. The responding party is obliged to provide written responses under oath. Responses given in the course of discovery are usable at trial, subject to the rules of evidence. As such, a party giving incorrect information, runs the risk of impeachment at trial, and possibly losing his case. The courts give wide interpretation to what information a party may seek in litigation. The usual rule is that a party is entitled to information that “may lead to admissible evidence”. Thus, the fact that the specific item of information sought is itself not admissible, is not sufficient ground to refuse it to the other party. Within this framework, parties are entitled to preserve complete privilege and refuse disclosure of information in two areas: (1) communications between the attorney and his/her client, and (2) the work product of an attorney, including the attorney’s thoughts, analysis and research. Discovery is a critical part of the process, designed to allow the parties to prepare their cases fully for trial. It is felt that once parties have determined all information they need, they can make a better assessment of their case, avoid surprises at trial, and posture it for settlement.

      Trial of a matter is conducted by presentation of evidence typically by way of testimony of parties and witnesses. The opposing party has the right to cross examine each witness at the conclusion of that  witness’ testimony led by the party presenting the witness. Cross examination gives the opposing party an opportunity to test the plausibility of the witness’ version of the facts, and the credibility of the witness. Frequently, parties will also present the testimony of expert witnesses, on matters that are outside the realm of knowledge of the common person. This may consist of economists, scientists and engineers. Once all parties have presented their evidence and made their arguments as to the proper inferences to be drawn from the evidence, the matter is given to the jury, or judge to make a determination, upon which the judgment is made.

      Arbitrations follow a similar path, but are usually much shorter in duration, and felt to be more economical.