Civil Procedure and Conflict Resolution - Research Paper Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Civil procedure and Conflict Resolution Tutor : xxxxxxxxxxx @2010 Table of Contents Civil procedure and Conflict resolution 2 Introduction 2 Importance of discovery 4 Discovery abuse 6 Prevention of discovery abuse 9 Limitations on interrogatories 9 Document inspection 10 Sanctions 10 Mandatory Disclosure 11 Conclusion 12 Bibliography 13 Civil procedure and Conflict resolution Introduction According to Richard (1996), discovery refers to the pre trial stage within a lawsuit whereby every party in the civil procedure may request evidence and documents from the other party and may compel evidence production through the use of subpoena or other discovery tools, like depositions or request for document production. Discovery involves depositions, interrogatories, admissions request and motions or document production. Discovery enables both parties learn and analyze facts which may weaken or support the case. Bryan (2005) defines a lawsuit as a civil action presented before the law court whereby a plaintiff who is a party claiming to have been hurt by the actions of the defendant, seeks equitable or legal remedy. The defendant is supposed to respond to the presented complaint. When the complainant is successful, a judgement is given in the favour of the plaintiff, and a wide variety of of orders from the court can be issued so as to award damages, enforce a right, or give an injunction so as to compel or avoid an act.1 The declaratory judgement is given to avoid occurrence of similar legal dispute in future. A lawsuit involves resolution of disputes of non public law matters between business entities or individuals. A lawsuit enables treatment of state like a private party within civil case, as defendant or plaintiff regarding the injury and can give the state an action causal to enable enforcement off certain laws. Civil procedure or criminal rules govern lawsuit conduct in the law adversarial mechanism of resolution of disputes. The procedural laws are informed or constrained by separate case laws, statutory laws together with constitutional provisions which define the legal rights of both parties to the lawsuit. The procedural details differ from one jurisdiction to another to indifferent courts which are under similar jurisdiction. The rules play a significant role in the litigation process since they dictate progression and timing of a lawsuit. If the procedural rules are not followed, serious problems may be encountered when conducting a trial and the lawsuit may be dismissed, for instance the land case of Groves v. John Wunder Co., 205 Minn. 163, 286 N.W. 235. Importance of discovery The evidence used in trial is obtained during litigation via the discovery process. This process involves formal information gathering procedures and investigation on the claim. Every technique of gathering information includes diverse rules that should be strictly followed. The initial techniques of gathering information include requests on document production and use of interrogatory questions. Interrogations involve written questions and presented in a lawsuit while requests on production refers to formal requests by the court of law requesting the parties to present the documents they posess. The person who has received requests on production or interrogatories is supposed to give a written response within a given period of time. For example the case between L. Albert & Son v. Armstrong Rubber Co., 178 F.2d 182 (2d Cir.1949) where Armstrong company sold machines to Albert and Son at a relatively high prices. The requests and interrogations assist in gathering of as much information as possible from both parties. Another type of information gathering technique is taking depositions. According Deposition can be defined as a session of question and answer that require the individual replying the questions asked to affirm or swear so that the answers given are true. It is also called oral examination. The reporter records anything the person says and then forms a typed official document that contains every question along with its answer.2 Generally, during examination the party must indicate that she or he do not personally possess an answer to the asked question. In this case, the person is usually needed to offer an undertaking in order to try to get the information on the asked question from another source which is available and give a reply to the opposing party later. Oral agreements are not used as evidence before the court like it was in the case of Hayen v. Hoadley, 94 Vt. 345, 111 A. 343 (1920) where the defendant claimed that there was an oral agreement with the plaintiff about the duration of construction but the claim was not considered. Disputes over if questions are improper or proper and if undertakings are properly and promptly answered are dealt with in the next court proceedings through motions which are usually referred to motions for refusals and undertakings. The process of discovery is thus composed of three components which include document production, oral examinations to make discovery and the process of dispute resolution on refusals and gathering of answers from undertakings. A party can set down an action for trial within any stage but the civil procedural rules hinders a party from further continuing with discovery thereafter. Therefore, it is usually imperative that the plaintiff completes the whole process of discovery before he or she sets down trial action, a phase that formally tells the court that in the opinion of plaintiff, the case is ready for proceeding to trial.3 The discovery process should be closely monitored by an experienced attorney. Missteps within the process of discovery may contribute to court sanctions and fines against the lawyer. Robert & Stephen (2005) define a court sanction as an approval by the court which makes an issue valid. It is a penalty or an form of coercive measure that is mean to ensure compliance. Failure of responding to discovery by the attorney can lead to admissions against him or her answered in affirmative or discovery requests being limited. An experience attorney makes sure that the entire discovery is conducted in a proper and efficient manner and the party is entitled to every information field to support the case. The attorney makes sure that legally allowed and relevant questions are the only ones to be answered, all evidences are presented and privileged materials are protected. The discovery process appears to be frustrating and expensive but it leads to beneficial result. By the fact that the process requires every party to gain a clear knowledge of what precisely happened and how the evidence about the happening should be presented. The discovery process allows parties to come up with decisions after discovery if they wish to go on with the trial. Serious and usually successful settlement of discussions comes after discovery is completed. The settlement discussions held after discovery process usually lead to agreement by parties on resolution of the proceeding; the uncertainty and aggravation are thus included in the whole trial of a case. Richard argues that discovery is an educative process which enables both the plaintiff and defendant to obtain information that is essential for structuring their cases and preparing a defense against the claims the opposing party rises. 4 Discovery abuse Discovery misuse can be categorized in two groups, the first one being excessive discovery. For instance the case of Batsakis v. Demotsis Court of Civil Appeals of Texas, 226 S.W.2d 673 (1949). Excessive discovery is employed as a tactical tool to impose huge sums of money on the defending party with the expectation that they will finally settle the case for the fear of incurring additional costs. Lawyers use this category of abuse to search expeditions that are not likely to give any supporting facts but a sham or marginal claim. Although there was a written document that the defendant was to pay the loan with an interest, this did not happen because the defendant paid the loan without consideration of the agreed interest. Lengthy and numerous depositions together with large volumes of interrogations in written form are used to tire the defendant. The main purpose of excessive discovery is not for information gathering but for burdening, adding extra costs and frustrating the defendant. This experience finally exhausts the defendant who ends up giving up the case. The other type of discovery misuse is the resistance to legal discovery with the expectation that both parties will delay in exposure of evidence or to merely pass time. The tactics used in this type of abuse include refusal to give information or hiding of information, destroying documents that can provide evidence, narrow escape from requests, teaching the witness on how to avoids giving information, raising complicated privilege claims and giving evasive replies to requests. This abuse is embedded within the philosophy that excellent layering involves obtaining much information as possible and revealing little information as possible.5 Several factors contribute to discovery abuse. Financial incentives are the major cause of abuse as lengthy billing promotes more discoveries. Fear of improper claims might entice attorneys to be inconsiderably through in their practices exposing them to confirm via discovery the information they already have through informal ways. The time needed to make discovery requests might make the lawyer to indiscriminately apply discovery as supplement for advance research and preparation. The great discovery field embedded within the federal rule of civil procedure requires every matter, unprivileged and relevant to undergo thorough investigation and do not limit the time spent. A small portion of misuse is contributed by new lawyers who do not have experience on the profession. This may be as a result of inadequate education on legal matters in law institutions together with inadequate early supervision and training in the career. The judiciary handles a greater role in promoting discovery misuse through failure to impose sanctions and enforce rules. Studies have revealed that courts are quite reluctant to give significant sanctions on judges who make mistakes during the discovery process and even when they dispose , the sanctions are usually untimely and do not have any impact on the action of the lawyers. The courts are reluctant to impose sanctions is because they feel that there is a likelihood that the two parties have participated in abuse and the attorney feels that no party is supposed to be punished. The court may not be having enough knowledge on the extent of discovery abuse and they have a fear that sanctions may deepen division between the two parties. The court feels that after sanction the attorney will penalize the parties unnecessarily, just like in Sarantidis v Westfield Shopping Centre Tea Tree Plaza (District Court of South Australia, 29 April 1997). And it may not be having adequate awareness on the issues, parties and the judge and therefore are not confident in giving sanctions. The court may have indoctrination or pity on adversarial system and may be no guidelines on issuing of sanctions. This reluctance by the court to issue sanctions allows judges to extensively abuse discovery they because they are not exposed to reprimand. The best example is Morgan v Sherton Pty Ltd (1999) 116 NSWLR 141. Production of best information tangentially connected to litigation of corporation’s files may make the company personnel to settle the case other than give delicate company information. A pervasive search expedition through the records of a defendant would expose information that is subsidiary to the present test but may facilitate additional beneficial litigation against the corporation.6 Prevention of discovery abuse Limitations on interrogatories The old discovery rules did not limit on the interrogatories. The original act states that the number of interrogatories should be thirty five and without any exceptions. The new act on the other hand states that, the number of interrogatories should be thirty five and above. This happens when parties agree on more interrogations, when there is an order from the court, and when the judges handling the interrogations declares that he has studied all questions and has found that all of them are reasonable and necessary. The unlimited interrogatories enable the attorney adequate information from both parties. Document inspection In order to prevent evasiveness in production of documents, minimize stalling methods used to burden the opponent, buying of time, and eradicate production of records that are deliberately disorganized in order to confuse the opposing party and make the records impossible for use. The new act has therefore offered new rules that make sure that documents are thoroughly inspected before they are presented before the court to make sure that the information they contain is intact and has not been distorted. A party is allowed to demand for inspection of documents which are under possession by the opposing party. The party which is demanding inspection is permitted to copy and inspect documents that are in possession of the other party. The documents must be presented as they appear in usual business course or are arranged and labelled so that they match with the categories under demand.7 Sanctions The old rules state that rights of individuals should be fully guarded. The rules therefore permitted sanctions to prevent discovery abuse, but sanction issues are more emphasized in the new Act. The new act states that the court has the ethical ability to make a decision regarding the level sanction. The entire success of sanctions relies on the willingness of the legal courts to impose and enforce sanctions on lawyers who cause malpractices in the discovery process. Scott v Patterdale Pty Ltd is a good example .There should be uniform enforcement of sanctions by courts and these enforcements are likely to make the lawyers change their behaviour of misusing the discovery process especially for monetary gains. Court congestions and delays, and litigation costs are increased by lack of actions by the court. Judges must possess uniform guidance on how to properly manage the process of discovery and the procedural civil federal rules must outline considerable limits to the process of discovery. The institute for legal reform effectively pushed the legal courts to adopt the liability restraining shifts to the procedural civil federal rules that prevent discovery abuse. The initial rule sees the removal party sanctions to litigation when numerous of their documents are lost or deleted after the process of good faith investigation of systems harbouring the information. The other rule aids corporations who possess information which is not easily accessible as a result of cost or burden of getting the information by excluding the businesses from spending large sums of money in order to present the documents unless there is an order from the judge. Mandatory Disclosure Mandatory discovery is likely to reduce both delays and litigation costs through providing the parties with useful information at reduced expenses at adverbial process. Parties are spared the cost of core information requests and discovery declines are eradicated. Access to vital information at the discovery stage, enable the lawyers to successfully narrow the litigation scope, reducing its cost and length and promote early settlement of a case. Combination of mandatory disclosure with judicial intervention generates a more efficient management of case and a reduction litigation volume and the entire burden on law courts. To enhance addressing of discovery abuse, new regulations must be put in place to make sure that information requests are equitable and reasonable and they limit burdens that are connected with discovery abuse like business disruptions, costs and unnecessary exposure of delicate information that is not essentially needed for litigation.8 Conclusion In conclusion, it is important to note that discovery is a process that enables the court to obtain information from the plaintiff and the defendant and this information provides evidence that enable the ruling of the case. Abuse of discovery in litigation process causes delay in settlement of a case and lead to additional costs incurred by the parties involved. Giving overly excessive and broad discovery requests expects great document production and more research before responding to the request. As a result, the resources are directed towards legal issues. In some cases, discoveries can be applied inequitably as a way of making the defendant comply with the inquiries. . Bibliography Franklin, D., 1996, Reconstructing justice: an agenda for trial reform, University of Chicago Press, Chicago. Stephen, M., 2004, Civil procedure, 2nd Edition, Routledge Cavendish Press, London Kenneth, J., 1995, Barriers to conflict resolution, W.W. Norton Press, London. Bryan, E., 2005, productive divorce: practical justice & sociological modification. American Psychological Association Press, California. Paul, S., 2008, Civil Litigation, 5th Edition, Cengage Learning Press, California. Richard, H., 1996, Representing the corporation: strategies for legal counsel. Cambridge University Press, New York. Robert, F., & Stephen, B., 2005, Construction Litigation: Representing the Owner, 2nd Edition, Harvard Business School Press Harvard. Allan, S., 2004, Mediation: a practical guide, Routledge Cavendish Press, New York. Read More