Deck 4: Resolving Disputes: Litigation and Alternative Dispute Resolution Options

Question 1

Online dispute resolution (ODR) has all of the advantages of traditional forms of ADR.

Answer 1

True
Explanation: ODR gives the participants all of the benefits and advantages of ADR and often enhances speed and cost savings.

Question 2

A jury that cannot agree on a verdict is called a ________ jury.

Answer 2

hung

Question 3

When the judge issues the jury instructions, the judge is said to be charging the jury.

Answer 3

True
Explanation: A judge charges the jury by giving them instructions on how to work through the process.

Question 4

Judges must be present during depositions to resolve disputes and ensure fairness.

Question 5

Questions asked by an attorney of witnesses whom they have called to testify are called a cross-examination.

Question 6

Lawsuits filed for illegitimate reasons such as for harassment, for intimidation, or to cause the other party unnecessary costs are called abusive or ________ lawsuits.

Question 7

Counterclaims are filed by the plaintiff in civil matters.

Question 8

Transcripts of ADR proceedings are required to be available to the public.

Question 9

Scoop Masters Inc. has been charged by Fab Flavors Corp. with stealing Fab Flavors' patented process for making ice cream. After the papers are filed, Scoop Masters begins shredding all documents pertaining to its ice cream-making process. Since no motion has been made requesting production of documents, Scoop Masters has done nothing wrong.

Question 10

The document served on the defendant along with the complaint that provides actual notice of the lawsuit is called a _______.

Question 11

Evidence that proves innocence or nonliability is called ________ evidence.

Question 12

The discussions by the jury in a closed room while they attempt to reach a verdict are called _______.

Question 13

At trial, the judge decides the facts and the jury decides the law.

Question 14

When a dispute arises between two parties, one party will typically make an informal ________ on the other party prior to initiating a lawsuit.

Question 15

The plaintiff and defendant, the adverse parties in a lawsuit, are called the _______.

Question 16

A motion for a judgment as a matter of law is called a motion for a judgment non obstante veredicto in some states.

Question 17

In some special types of cases such as divorce, the defendant is instead called a _______.

Question 18

A trial without a jury is called a ________ trial.

Question 19

A ________ is a document filed by one party that requests court action in a matter pertaining to the litigation.

Question 20

Albert has sued Tina and received a judgment for $50,000. Tina's assets may be exempt from collection of the judgment if Tina has filed bankruptcy.

Question 21

While normal arbitration produces an arbiter's decision and the parties are bound by the award, online arbitration produces a decision but the award is not binding on the parties.

Question 22

Laura and Susan had a motor vehicle accident, and Susan has sued Laura claiming severe back injuries. If Laura wants to obtain a copy of Susan's doctor and hospital reports, she should serve a request for admissions to Susan.

Question 23

A motion for a summary judgment may be filed by either the plaintiff or the defendant.

Question 24

In the typical business context, ADR is invoked either via contract or by mutual agreement.

Question 25

For the courts to allow a lawsuit to proceed, both the plaintiff and the defendant must be able to prove standing or the suit will be dismissed.

Question 26

The Federal Arbitration Act provides a means for enforcement of arbitration agreements and decisions of arbitrators through the use of the state courts in the state in which the arbitration took place.

Question 27

Legally mandated arbitration is nonbinding arbitration.

Question 28

In civil cases the standard of proof used by state trial courts is a preponderance of the evidence, while in federal trial court the standard of proof is beyond a reasonable doubt.

Question 29

The American Arbitration Association provides mediation services as well as arbitration services.

Question 30

The Federal Arbitration Act enumerates specific procedures for conducting arbitration hearings.

Question 31

Generally, everything relevant to a dispute is discoverable in a civil lawsuit unless protected by a legal privilege.

Question 32

Med-arb is a form of ADR in which both a mediator and an arbitrator work simultaneously with the disputing parties to resolve differences.

Question 33

The term litigation refers to the trial but does not include pretrial events as well.

Question 34

Each stage of litigation is separate and distinct, and each must be completed before the next stage may be started.

Question 35

Larry has sued Jeff and received judgment in the amount of $24,000. Larry is a judgment creditor.

Question 36

Arbitration can at times be legally mandated, but mediation is entered into only on a voluntary basis.

Question 37

Congress has endorsed the use of arbitration as the preferred dispute resolution method in matters governed by federal law.

Question 38

Actual trade secrets of a company are exempted from discovery and need not ever be disclosed.

Question 39

In Alston v. Advance Brands and Importing Company, a parent group sued a maker of alcoholic beverages, claiming the maker's advertising induced alcohol sales to minors. The suit was dismissed because the group suffered no legitimate damages.

Question 40

Online negotiation is available for minor disputes, but disputes arising from complex transactions may be resolved only with traditional face-to-face meetings.

Question 41

During the pleadings stage, a third party may be brought into the trial by a defendant by filing:

A) a supplementary answer.
B) a counterclaim.
C) a cross-claim.
D) an additional complaint.

Question 42

If a civil trial results in a hung jury:

A) the plaintiff wins.
B) the defendant wins.
C) the litigants must start the process over and conduct a trial with a new jury.
D) this will be grounds for an automatic appeal and the appellate court will render a final decision.

Question 43

In Alston v. Advance Brands and Importing Company, Alston sued to prevent advertising of alcohol because it influenced children. He was found not to have standing for each of the reasons below except:

A) Alston did not evidence any actual injury.
B) Alston's children bought liquor using money provided by Alston, so he was at fault.
C) Alston could not show that a proper remedy was available.
D) Even if injury could be shown, the injury was not direct because Alston's alleged injury was not directly connected to the defendants and was broken by third-party sellers who criminally sold to minors.

Question 44

April hires Christine to landscape her yard. They agree on a price, agree on the types and colors of the plantings, and agree on the start date. When Christine shows up on the agreed date, April refuses to allow her to begin work. Christine sues April for breach of contract. At trial, April produces the contract, which states that the plants were to be a mixture of red, white, and blue and were to be between 12 inches and 18 inches in height. She then produces pictures to show that Christine had arrived with only purple and yellow plants that were 6 to 8 inches high. This type of evidence produced by April would be called:

A) inculpatory evidence.
B) summary evidence.
C) exculpatory evidence.
D) direct evidence.

Question 45

Which of the following is not required in order to show standing to assert a claim?

A) The party must have suffered an injury in fact.
B) The party must be a citizen or taxpayer eligible to use the U.S. court system.
C) The party must suffer harm that is direct, concrete, and individualized.
D) The party must articulate what legal redress exists to compensate for the injury.

Question 46

Who, among the following, is not present during a pretrial conference?

A) the judge
B) the parties
C) the court reporter
D) the party's attorneys

Question 47

Each of the following is a pretrial motion except:

A) to dismiss for mistrial.
B) to compel discovery.
C) to dismiss.
D) for summary judgment.

Question 48

Depositions are:

A) oral questions, answered orally, asked of parties and witnesses.
B) oral questions, answered orally, asked only of parties.
C) written questions, answered in writing, asked of parties and witnesses.
D) written questions, answered in writing, asked only of parties.

Question 49

Which of the following is not true of ADR proceedings?

A) The jury decision in an ADR proceeding is automatically subject to one appeal.
B) The party conducting the ADR hearing is chosen by the disputing parties themselves in certain instances.
C) ADR hearings generally result in much less publicity than does litigation.
D) ADR hearings usually arrive at a resolution at a much lower cost than does litigation.

Question 50

A complaint will contain each of the following except:

A) a statement of the plaintiff's version of the facts of the case.
B) a statement of the damages suffered.
C) a statement of why the plaintiff believes the defendant is guilty.
D) a statement of the evidence that the plaintiff will produce and a list of potential witnesses to be called.

Question 51

The filing of the complaint begins which stage of litigation?

A) the pleadings
B) discovery
C) voir dire
D) the trial

Question 52

A motion for a court to issue a ruling declaring that no trial is necessary because there are no essential facts in dispute is called a:

A) motion for summary judgment.
B) motion to dismiss for mistrial.
C) motion for a judgment as a matter of law.
D) motion to dismiss.

Question 53

Binding arbitration means that:

A) the parties had previously agreed that arbitration would be utilized, rather than litigation, should a dispute arise.
B) the rules of the hearing will be strict in terms of number of witnesses called, duration of the hearing itself, and whether attorneys can be present.
C) the decision of the arbitrator will be final unless the parties agree to reopen the case.
D) the decision of the arbitrator will be final and the parties are barred from agreeing to reopen the case.

Question 54

Fred is a student in your class and is frequently disruptive. Your professor has asked him to stop talking four times and to stop texting three times just in today's class. Finally your professor asks him to leave, and when Fred says, "Make me," your professor loses it and knocks him out with a right cross to the jaw. Fred is now suing your professor for civil battery. Both sides believe that you can provide valuable information for their sides. Which discovery method should they use to get your information?

A) a deposition
B) an interrogatory
C) a request that you write down your recollection so that they can file for a request for production to obtain your statement
D) a request that you make an admission

Question 55

The number of civil cases filed annually in state and federal courts combined exceeds:

A) 10 thousand.
B) 10 million.
C) 20 thousand.
D) 20 million.

Question 56

Mike has sued Kathy for injuries received in a traffic accident. If Kathy fails to respond to the complaint and summons within the proper time limit:

A) Mike wins based on a summary judgment.
B) Mike wins based on a default judgment.
C) Mike wins based on a judgment as a matter of law.
D) nothing happens-Kathy is not required to respond to a complaint and summons.

Question 57

Voir dire:

A) is a form of discovery.
B) is the process of choosing a jury.
C) is a motion made after trial seeking an appeal.
D) is the process of notifying a defendant that he or she has been sued.

Question 58

In the civil system, the term litigation refers to:

A) matters that occur prior to the trial.
B) the trial itself.
C) both the pretrial and the trial.
D) posttrial enforcement of judgments.

Question 59

In Bridgestone Americas Holding Inc., v. Mayberry, the court had to determine if Bridgestone's trade secret for a particular formula was discoverable. The court decided:

A) whenever a tire fails and an accident occurs, any formulas directly applicable to the construction of the tire are discoverable even if a trade secret is claimed.
B) because Mayberry was able to prove the general relevance of the formula to her case, she met her burden and the trade secret was discoverable.
C) the trade secret formula was not discoverable because the case could be proved by the tire's appearance and disclosure of the trade secret formula was therefore not pertinent.
D) if a company can meet the test to prove that particular information truly represents a trade secret, that trade secret is never discoverable because allowing trade secrets to be made public would disrupt business and competition.

Question 60

Alan is stopped at a traffic light when he is run into by Bianca. He sues her for negligence. At trial, Alan produces evidence that Bianca had a blood alcohol level of 1.3, that she was texting at the time of the accident, and that she was not wearing her prescription glasses when she rear-ended him. This type of evidence produced by Alan is called:

A) inculpatory evidence.
B) summary evidence.
C) exculpatory evidence.
D) direct evidence.

Question 61

You have just graduated and have started your own business. You will be providing goods and services to the general public, and you are concerned about potential legal exposure and resultant costs of litigation. You'd like to add a mandatory arbitration clause to all of your contracts. Is a mandatory arbitration clause legal and valid, and if so, what concerns must you consider in constructing this clause?

Question 62

The Federal Arbitration Act provides four grounds by which a court may set aside the award of an arbitrator. Name them.

Question 63

In Brower v. Gateway, the issue involved the enforcement of a mandatory and binding arbitration agreement pertaining to disputes between Gateway and its customers. With regard to the agreements enforcement, the court determined that:

A) because the Standard Terms and Conditions Agreement made the arbitration agreement enforceable after the customer retained the computer for 30 days and over 30 days had elapsed, the agreement was considered accepted and enforceable.
B) because Congress had indicated in the Federal Arbitration Act that arbitration agreements were the preferred method of dispute resolution, the courts were bound and preempted by Congress's stated policy, so the agreement had to be enforced.
C) because the parties could not agree on a suitable arbitrator, the clause was useless and only litigation before a court could adequately and fairly resolve the dispute.
D) because the mandatory fee required by the arbitration forum exceeded the cost of most of Gateway's products, the prohibitive cost of arbitration made the arbitration unfair and biased toward Gateway and therefore nullified the arbitration clause.

Question 64

The last time an attorney addresses a jury is during the:

A) closing argument.
B) jury instructions.
C) deliberations.
D) making of a motion for a judgment as a matter of law.

Question 65

Which of the following is categorized as informal ADR?

A) negotiation
B) mediation
C) arbitration
D) med-arb

Question 66

When the American Arbitration Association receives an application for appointment of an arbitrator, it:

A) meets with a local trial judge to determine whether litigation or arbitration will be most efficient and advantageous based on the parties and the nature of the dispute.
B) meets with attorneys from both sides to determine whether litigation or arbitration will be most efficient and advantageous based on the parties and the nature of the dispute.
C) receives a list of suggested arbitrators from both parties and then selects the arbitrator, who informs the parties of the procedures and rules of arbitration.
D) appoints a tribunal administrator, who informs the parties of the procedures and rules of arbitration.

Question 67

Kathy is stopped at a red light when her car is run into from behind by Mike. This occurred at noon on a clear and sunny day on a dry road. Kathy claims a serious back injury and is suing for various forms of damages. There were three witnesses to the accident. With regard to discovery methods, which form of discovery would be most appropriate in each of the following situations? Fully explain.
a. Kathy would like to avoid calling an expert witness to testify as to road and weather conditions at the time of the accident.
b. Kathy would like to determine whether Mike was talking on his cell phone or texting at the time of the accident.
c. Mike would like to see the doctor's reports discussing Kathy's back injury.
d. Both Mike and Kathy would like to get statements from the witnesses.

Question 68

Discuss the potential advantages of ADR over litigation.

Question 69

From first to last, which of the following trial stages are in the correct order?

A) pretrial conference; pleadings; discovery; deliberations
B) pleadings; discovery; deliberations; jury selection
C) discovery; jury selection; deliberations; charging the jury
D) pleadings; discovery; pretrial conference; jury selection

Question 70

When and why would a defendant file a cross-claim, and when would a defendant file a counterclaim?

Question 71

What is a pretrial conference, when does it occur, and what are its purposes?

Question 72

When disputing parties submit blind bids to an automated service, stating what they are willing to pay or receive to resolve the dispute, and the software evaluates the bids and produces a fair price based on the parties' input, the form of ODR being utilized is:

A) online negotiation.
B) online mediation.
C) online arbitration.
D) med-arb.

Question 73

Which of the following does not result in a decision rendered by the hearing officer?

A) arbitration
B) mediation
C) med-arb
D) using expert evaluators

Question 74

Lois is a reporter for the school newspaper and generally writes satirical articles spoofing students, faculty, and school policy. After one particular article, Professor Mackey fails to find the humor in Lois's portrayal of her as a leftover 1960s hippie and sues Lois for defamation. In fact, Professor Mackey is a modern woman with a degree in sociology and has written extensively on American culture in the 1960s and 70s. She did attend Woodstock, still listens to Led Zeppelin, and still occasionally wears tie-dyed T-shirts when not professionally dressed. The state trial court finds for Professor Mackey, and the jury awards her $10 million. Is there anything that Lois can do besides filing for an appeal?

Question 75

After the complaint is filed, the complaint and summons are served on the defendant. What is the summons, and what constitutional mandate does service of the complaint and summons accomplish?

Question 76

In American Express v. Italian Colors Restaurant, American Express entered into agreements with Italian Colors Restaurant and other merchants that accept American Express credit cards. The agreement required that all disputes be settled through arbitration and prohibits class actions. The merchants filed a class action antitrust claim against Amex, arguing that they should be allowed to bring the claim as a class because the cost of expert analysis to prove the case exceeded the maximum recovery available to an individual merchant plaintiff. How did the U.S. Supreme Court decide?

A) The Court ruled for the merchants because not allowing the case would frustrate the purpose of having antitrust laws.
B) The Court ruled in favor of Amex, holding that the Federal Arbitration Act (FAA) does not permit courts to invalidate a contract based solely on the grounds that a plaintiff's dispute resolution costs exceed any potential amounts to be recovered. The Court concluded that the FAA reflects the overarching principle that arbitration is a matter of contract and that courts had a responsibility to rigorously enforce arbitration agreements according to their terms.
C) The Court ruled for the merchants because the waiver of class arbitration was not voluntary.
D) The Court ruled for Amex, holding that it did not violate antitrust laws.

Question 77

To successfully pursue a lawsuit, the plaintiff must evidence standing to sue. What must the plaintiff prove in order to establish standing to sue?

Question 78

ADR has some advantages for a company that makes it a better alternative than litigation in many situations. Name and explain the various methods of ODR and the advantages that ODR has over ADR for some companies.

Question 79

Wanda has graduated from a university and after nine months has failed to find a job. She graduated with a degree in business, and her college was AACSB accredited. (AACSB accreditation is a specialized accreditation for business schools that evidences a quality program.) In her complaint, she alleges that four years of school and tuition should guarantee a job in the field of study and states that she wants her money back. At no time did her school guarantee job placement, either through express or implied statements. Wanda does not disagree with this but still thinks that she was wronged and that it's unfair to graduate and not get a job automatically. The school will be successful in extinguishing Wanda's lawsuit if its attorney files a:

A) motion to dismiss because Wanda does not have standing.
B) motion for summary judgment.
C) motion to dismiss for mistrial.
D) motion for a judgment as a matter of law.

Question 80

JR Winery grows grapes and produces wine in the state of Delaware. It purchases its corks from Cork Masters, a California cork importer. Despite a written contract, Cork Masters has informed JR Winery that it will immediately be raising the cost of corks 20 percent. JR Winery disputes the added charges and claims a breach of contract. Both companies agree that they want to resolve the dispute as cheaply as possible but also agree that they want to actually see each other during any dispute resolution proceedings. Which type of ODR would best suit their mutual interests?

A) online negotiation
B) online mediation
C) online arbitration
D) med-arb