This is “Litigation”, chapter 3 from the book Business and the Legal and Ethical Environment (v. 1.0).
This book is licensed under a Creative Commons by-nc-sa 3.0 license. See the license for more details, but that basically means you can share this book as long as you credit the author (but see below), don't make money from it, and do make it available to everyone else under the same terms.
This content was accessible as of December 29, 2012, and it was downloaded then by Andy Schmitz in an effort to preserve the availability of this book.
Normally, the author and publisher would be credited here. However, the publisher has asked for the customary Creative Commons attribution to the original publisher, authors, title, and book URI to be removed. Additionally, per the publisher's request, their name has been removed in some passages. More information is available on this project's attribution page.
For more information on the source of this book, or why it is available for free, please see the project's home page. You can browse or download additional books there. You may also download a PDF copy of this book (25 MB) or just this chapter (356 KB), suitable for printing or most e-readers, or a .zip file containing this book's HTML files (for use in a web browser offline).
In this chapter, you will explore our litigation system in detail. Litigation provides an opportunity for each side in a dispute, whether criminal or civil, to lay their side of the story to an impartial jury or judge and ask that jury or judge to decide who wins and loses, and how much the loser should pay or how much time the defendant should spend in jail. After reading this chapter, you should have a deeper understanding of how litigation is conducted in the United States. Specifically, you should be able to answer the following questions:
Figure 3.1 A Typical Courtroom
Even if you’ve never stepped foot in a courtroom before, you can probably describe what a courtroom looks like. It’s a large, imposing room with tall ceilings, flags on stands, and wood paneling on the walls. The majority of the floor space is taken up with seating for the public. The front of the courtroom is dominated by the bench, behind which the judge sits, above everyone else in the room. Next to the bench is a solitary chair with a microphone in front of it, where a witness sits. Along one side of the wall is a separated area with two rows of seats, where the jury sits. Facing the bench, and always closest to the jury, is one table for the party that is carrying the burden of proof in the case: the prosecutionThe government’s side in a criminal case. in a criminal trial and the plaintiffThe party that starts a lawsuit. in a civil trial. Across the aisle, there is another impressive table for the opposite side, the defenseThe party that responds to a civil or criminal complaint.. When court is in session, a hush settles into the room so that everyone can hear the judge, commanding in presence, or the witness, captivating in detail.
Many of us have such clear imagery of a courtroom because our experiences are drawn from popular culture. Whether in movies (A Civil Action, To Kill a Mockingbird, Erin Brockovich), on television shows (Law & Order, L.A. Law, Boston Legal), or in fictional books (The Firm, Twelve Angry Men), courtroom scenes capture our imagination and fire our sense of righteousness and justice as good always prevails over evil. In our collective courtrooms the truth always comes out, our ideals are always upheld, and the bad guys always lose. Who could forget, for example, the psychological breakdown on the witness stand in the movie A Few Good Men, as Jack Nicholson plays it out?
Scenes like these, while providing wonderful imagery, are pure fiction. In a real courtroom, there is no back-and-forth argument between counsel and witness as examinations proceed through questioning alone. In a real courtroom, the truth doesn’t always emerge. In a real courtroom, there are many shades of gray between good and evil. And finally, in a real courtroom, the bad guys don’t always lose, and the good guys don’t always win.
As future business professionals, your responsibility to your company, to your company’s stakeholders, and to yourself is to avoid ever seeing the inside of a courtroom. Acting ethically and legally, and identifying the legal pitfalls that you may encounter by mastering the elements of this course, will help you achieve this goal. Agreeing to arbitration for parties that you have a preexisting relationship with, such as your customers, suppliers, or employees, will also help you stay away from a courtroom. In spite of this planning, however, many companies still find that litigationA lawsuit filed in court to determine liability and remedies. is sometimes unavoidable. Whether litigation is initiated against parties you don’t have a contract with (such as another company that steals your intellectual property rights) or by parties you don’t have a contract with (such as a customer who is injured by your product or an employee harassed by another employee), litigation may be the only dispute-resolution mechanism available.
In this chapter we’ll explore the process of litigation from the beginning to the end. You’ll learn about the parties involved and about preliminary matters such as standing and personal jurisdiction and then explore the trial and appeal. We’ll also discuss the role of lawyers and juries in our litigation system. By the end of the chapter, you’ll have an appreciation that while our litigation system is cherished for its ability to resolve disputes peacefully and establishes a hallmark for public accessibility, for businesses it is often a far from satisfactory forum for dispute resolution.
Litigation is an inevitable part of a business’s activities. Lawsuits, trials, and appeals can be ruinously expensive for some companies, especially small- and medium-sized enterprises. Learning about our litigation system will give you the skills and comfort you need should your company find itself in litigation.