Litigation Strategy - Assignment Example

Answer 1 Litigation broadly refers to dispute resolution through some sta y legal ity or court case and is normally used as a last resort. Litigation strategy, therefore, calls for very careful and detailed considerations of all the pros and con of the issues which need to be resolved. The litigation must start with the firm belief of being on the right path and having significant chances of success in the case. While it is important that all the relevant facts, backed by hard evidence in the form of relevant laws, clauses and agreements that the parties have formed are clearly established, the importance of expert witness to the litigation strategy is crucial to the case. The witness is the person of authority who has comprehensive knowledge of the issue in question and is also assumed to be in the position to give his opinion in the case. The more prominent and authoritative the witness, the stronger is the case. The witnesses are someone who can corroborate with the facts and conclusions of the litigation strategy and therefore, constitute very important part of it. Answer 1.2 In the case of Krotkoff v. Goucher college, impact of schools adoptions of AAUP policies has become the major factor to influence the decision of the district court in the favor of the college. AAUP’s Statement of Principles are highly relevant in the academic field because they have been formed with the joint efforts of the academic administration and the professors so that the interests of the academic faculty are not overtaken by the vested interests of the management of the academic organizations. The statements of Dr. Todd Furniss, Director of the Office of Academic Affairs of the American Council on Education, regarding the interpretation of AAUP’s Statement of Principles, have been taken as crucial evidence that strengthen Goucher’s case of terminating Krotkoff’s services. One of Statement of Principles states; ‘After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their services should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies’. The court has also taken cognizance of cases like Levitt v. Board of Trustees, 376 F. Supp. 945 (D.Neb.1974) and Cf. Rehor v. Case Western Reserve University, 331 N.E.2d 416 (Ohio 1975), where dismissal was justified on the ground of financial exigencies, when the financial exigency is not mentioned in the by-laws or the tenure contract. Answer 1.3 Inclusion of language in a faculty handbook that a tenured position could be terminated for financial exigency has become a key issue in the academic field. The inclusion of the clause would remove the ambiguity in the by-laws of the organization and promote more equitable interpretation of the issues, with regard to dismissal on the ground the said ground within the tenure or non tenure service contract. In cases like Browzin v. Catholic University, 527 F.2d 843 (1975); Bellak v. Franconia College, 386 A.2d 1266 (N.H.1978); American Association of University Professors v. Bloomfield College, 322 A.2d 846 (N.J. Super., Ch.Div.1974), 346 A.2d 615 (N.J. Super., App.Div.1975), the court had given clear verdict. Hence, inclusion is highly recommended. Answer 2 The State action is based on two approaches; symbiotic relationship and nexus relationship. Symbiotic relationship approach is characterized by an existence of close relationship between the State and the party that is mutually beneficially and promotes the welfare of the parties without any vested interest on their part. ‘The symbiotic-relationship approach focuses on the overall relationship between the acting party and the state’ (Goussis v. Kimball, p6). The relationship highlights the inter-dependency of the two parties within the pre-defined parameters of participation to meet the challenges of the issues or pre-determined goals. The nexus relationship, on the other hand can be broadly defined as working together on issues and goals that that support each other’s individual interests. In nexus approach, the court focuses on ‘the specific conduct of which the plaintiff complains’ (Blum v. Yaretsky, p7). The acting parties are evaluated as per their closeness to the state so that their actions can also be treated like that of state. The nexus relationship is widely considered to be focused on the vested interests of the parties and therefore, has wide scope of promoting nefarious intentions of the parties. The symbiotic relationship approach is normally used when the parties have the wider interests of the people in mind. During the implementation of the welfare schemes of the government, the government may forge such types of schemes with the non profit organizations so as to benefit the people. The state enters into nexus relationship with the business enterprises and other agencies to promote the business interests of the government, while the business enterprises get the support of state to further their business goals. In Krynicky v. University of Pittsburgh case, the focus was on symbiotic relationship rather than on nexus relationship mainly because symbiotic relationship between the University of Pennsylvania and the state needed to be established because case had made claims under 14th amendment which promoted equal rights for the ‘slave’ or blacks, making them bonafide citizens. It was done through the case of Schier v. Temple University, 576 F. Supp. 1569, slip op. at 19‑20 (E.D. Pa. 1984). Krynicky, an Assistant Professor of English at the University of Pittsburgh had filed a suit against the University and other administrative officials under 42 U.S.C. § 1983 claiming interest of ‘property’ and ‘liberty’ within the 14th amendment. While the Lugor Trilogy case had overruled the decisions of Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977) where University of Pittsburg and by implications, the Temple University were declared state actors so far as 42 U.S.C. § 1983 was concerned. But in Schier v. Temple University, the district court confirmed that a symbiotic relationship did exist between the university and the state. It declared that Braden still held the ‘controlling’ and the Commonwealth of Pennsylvania had ‘insinuated itself into the operation of the Temple University’, therefore, the institution is subject to the constraints of 14th amendment. Thus establishing that the University, be default was part of state. Reference Kaplin, William and Lee, Barbara. (2007). ‘Cases, Problems and Materials’. For use with The Law of Higher Education Fourth Edition: Student version. NACUA Goussis v. Kimball, 813 F. Supp. 352, 356-57 (E.D. Pa. 1993) Available from: [Accessed 23 March, 2009]. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). [Accessed 23 March, 2009]. Read More