Question

Please Expalin about the Judicial System,Managing Disputes: Alternative Dispute Resolution and Litigation Strategies in 500words?

Answer 1

Alternative Dispute Resolution:

Alternative dispute resolution (ADR; known in some countries, such as India,[1] as external dispute resolution) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with the help of a third party.

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition dispute.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.

Litigation Strategy:

Litigation strategy is the process by which counsel for one party to a lawsuit intends to integrate their actions with anticipated events and reactions to achieve the overarching goal of the litigation. The strategic goal may be the verdict, or the damages or sentence awarded in the case. Alternatively, in the case of impact litigation (also known as strategic litigation) the goal may be more far-reaching, such as setting legal precedent, affecting consumer-safety standards, or reshaping the public’s perception of a societal issue. Broader goals and more challenging cases require a strategist with a greater understanding of, and facility with, the tools of litigation strategy.

Attorneys who apply advanced strategic concepts (such as Maneuver and the Boyd Loop), which are not taught in most law schools, may gain a decisive advantage over attorneys who are unfamiliar with the skill set and who, because of their unfamiliarity, can be unwittingly maneuvered into disadvantageous actions. The resulting imbalance has led to academic criticism of the use of advanced strategic techniques. Professor Hugh Selby of Australian National University's College of Law has been particularly critical of its use by prosecutors, who already wield the massive power of the state against often poorly resourced defendants. The counterargument is that strategy can correct already-existing imbalances in the system, allowing a sole or two-attorney law firm with an indigent client to level the playing field against a large law firm with a wealthy corporate client, and allowing attorneys with little trial experience to effectively try cases against vastly more experienced opposing counsel.

Managing Disputes:

Many of the problems you have as an independent contractor can be solved simply and quickly by considering the hirer's point of view and giving the hirer time to consider your point of view.

But sometimes things get more complicated and a problem can turn into a dispute. Often disputes are about things that affect your business bottom line, such as unpaid invoices, disagreements about the quality of the work or a clause in the contract.

Depending on your concerns, your options may include:

• having an informal discussion
• negotiating
• sending a late payment reminder letter.

American Judicial System:

THE AMERICAN JUDICIAL SYSTEM

The United States is a federal system, with a central federal government and individual governments for each of the fifty states. As with the other branches of government, each of the states has their own complete judicial system (state courts) as does the United States itself (federal courts). Although there are important differences between the federal courts and between the various state court systems, they do share some common characteristics.

Each judicial system has a number of courts of original jurisdiction, in which cases are originally filed and tried. The jurisdiction of these trial courts can be both geographically and subject matter based. Each system also has a smaller number of intermediate appellate courts. These courts hear appeals from the trial courts. An appeal is a claim by the losing party that the lower court has made a mistake of law. Usually, a losing party is entitled to one appeal as a matter of right. Each court system also has a supreme court, which hears appeals from the appellate courts. Appeals to the Supreme Court are usually discretionary, that is the court may choose whether or not to hear the appeal.

A. Federal Courts

At the time of the adoption of the United States Constitution in 1789, each of the original thirteen states had a fully functioning judicial system. These state courts handled all judicial matters, such as criminal cases, private civil disputes, and family law matters such as divorce and adoption, etc. The framers of the Constitution agreed, however, that a national judiciary was also necessary, at the very least a Supreme Court, which could be the final arbiter on matters of federal law. Therefore, Article III of the Constitution provides for a Supreme Court and gives Congress the power to establish other, lower courts.

As one of its initial acts, the first Congress established not only the Supreme Court, but also a system of trial courts (District Courts) and intermediate Appeals Courts (Courts of Appeal). The Supreme Court has nine justices. At present, the United States is divided into 91 districts, each with a District Court staffed by between two and 28 judges. There are 13 Courts of Appeal with between six and 28 judges each. Courts of Appeal normally sit in panels of three judges to hear cases.

            The United States Constitution specifies the method of selection and terms of office for all federal judges. These methods were chosen to make federal judges as independent of the other branches of government and of public pressure as possible. Federal judges are appointed by the President of the United States, and must be confirmed by a majority vote of the Senate. They serve for life, may not have their salaries reduced, and may only be removed from office for serious offenses through the impeachment process. This requires impeachment by the House of Representatives and conviction by a two-thirds vote of the Senate. In more than two hundred years, only seven federal judges have been removed from office.

The subject-matter jurisdiction of a court refers to the kinds of cases which it may hear. The subject-matter jurisdiction of the Federal courts is limited by Article III of the Constitution. Unlike state courts, which are usually courts of general jurisdiction (they can hear most kinds of cases) federal courts may only hear cases that are listed in Article III as within “the judicial power of the United States.” The framers included only such cases in which it was felt that there was a special need for a federal, as opposed to a state court.

For example, federal courts may hear controversies between different states. Before the adoption of the Constitution, there had been disputes between the states, principally over borders, and it was thought necessary to have such cases decided by the Supreme Court. The federal courts may also hear cases in which the United States is a party, in order to protect the interests of the United States from the possible bias of state courts.

Perhaps the most important grant of jurisdiction today is over cases “arising under the Constitution and laws of the United States” (often called “federal question” jurisdiction). This gives federal courts the power to interpret and enforce the United States Constitution and all laws passed by Congress. This guarantees that all citizens will enjoy the same Constitutional rights as citizens in other states. Many cases brought to enforce Constitutional and civil rights have been brought in the federal courts, because the parties believe that a federal judge, serving for life, will be more likely to issue an unpopular opinion than would a state judge who will have to run for reelection.

Another, more controversial grant of jurisdiction to the federal courts is known as “diversity jurisdiction.” This applies to controversies between citizens of different states and controversies between citizens of the United States and citizens of a foreign country. The main purpose of this grant of jurisdiction is to prevent bias against an out-of-state party in favor of an in-state party. The fact that federal judges are appointed by the President and are not subject to reelection is thought to minimize the possibility of local bias. There is some question, however, about the extent of such bias, and therefore the need to have federal judges decide these cases. Also, in diversity cases, the governing substantive law will be state law, rather than federal law. Federal judges are required by the Constitution to apply state law where applicable. Some critics argue that issues of state law should usually be heard in state, rather than federal court. Although some have called for the abolition of diversity jurisdiction, Congress has chosen instead to restrict it to cases involving more than $75,000.

Most grants of jurisdiction to the federal courts, including federal question and diversity, are concurrent, rather than exclusive. This means that the plaintiffs may bring such cases in either a federal or state court. It may happen, therefore, that a case raising a constitutional claim or based on a federal statute may end up in state court. Just as a federal judge may have to apply state law in a diversity case, a state judge may have to apply federal law. All judges, therefore, must be familiar with both federal and state law.

In concurrent jurisdiction cases, plaintiff has the original choice of whether to bring the case in federal or state court. If plaintiff properly brings the case in federal court, then the defendant may not transfer it to state court. If, however, plaintiff chooses to bring a case over which both the state and federal courts have concurrent jurisdiction in a state court, the defendant may have the case transferred, or “removed” to federal court. If neither party wants it heard in federal court, then it remains in state court.

In certain cases, Congress has chosen to make federal jurisdiction exclusive, rather than concurrent. These cases may only be brought and heard in federal court. This is usually reserved for situations where Congress wants the law decided only by federal courts to provide more uniformity than if the case might be heard in any one of fifty state courts. Examples of grants of exclusive jurisdiction are cases involving admiralty and maritime law, bankruptcy, and trademark and copyright law.

With few exceptions, once a case starts in either state or federal court, the case remains in that court system throughout, including on appeal. Cases in federal court may be appealed first to the federal Court of Appeals for that particular circuit, and then by writ of certiorari to the United States Supreme Court. Cases heard in a state court must be appealed through the state court system (usually to an intermediate appellate court and then to the state supreme court). Only if a case in state court contains a significant issue of federal law may it be appealed to the United States Supreme Court after being heard by the state supreme court.

All appeals to the United States Supreme Court, whether from a state Supreme Court or from a federal Court of Appeals, are discretionary. The person bringing the appeal (called the petitioner) files a petition for a writ of certiorari with the Supreme Court. The Court has total discretion as to whether it wants to hear a particular case or not. It takes four votes from the nine justices to grant the writ of certiorari and hear the case. The Court usually basis its decision on the importance of the legal issue involved to the country as a whole.

B. Precedent and Stare Decisis

When issuing decisions, all courts must follow binding precedent -- that is their decisions must follow any rulings made by courts above them. On questions of the interpretation of the United States Constitution and statutes passed by Congress, the United States Supreme Court has the final say. All other courts, both federal and state, must follow any precedent set by the Supreme Court.

All United States District Courts must follow the interpretation given by the Court of Appeal for the circuit in which it sits. Sometimes, different circuits reach contradictory results on a particular issue. This means that the Constitution may occasionally be interpreted differently in different states. Often, such a “split in the circuits” prompts the Supreme Court to grant certiorari on the issue involved, so that the law will be uniform throughout the country.

State courts are bound to follow precedent set by the Supreme Court and by the Courts of Appeals on issues of federal law, but not as to state law. Each state supreme court is free to interpret the laws of its state as it sees fit, as long as the interpretation does not violate the United States Constitution. All lower courts in the state must follow state supreme court precedent on issues of state law, and federal courts in the state must do likewise.

The doctrine of stare decisis is somewhat different than that of precedent. Stare decisis is the desire of most courts to follow their own precedent, even when they are not required to. For example, once the Supreme Court has decided an issue of federal law, they are free to change their mind in some later case. But they are normally quite reluctant to do so, even if there has been a change of justices on the Court and the new members do not agree with the old ruling. They are much more likely to distinguish the older case when asked to apply it in a slightly different situation. In this way, the older doctrine may change, but more gradually, over time.

The Supreme Court has the power to and does occasionally completely reverse an existing precedent. Although they can do so both as to statutory and constitutional issues, they often state that they are less likely to do so in matters of statutory construction. This is because if Congress disagrees with the Court’s interpretation of a statute, it may amend the law to change the result. If the Supreme Court feels strongly, however, that they have misinterpreted the Constitution, only they can change the result, unless the difficult cumbersome process of amending the Constitution is used. Such complete reversals, however, are quite rare.