Category: video

Are mediation and arbitration the same?

No, they are very different. Both mediation and arbitration are examples of alternative dispute resolution, or ADR, meaning both are alternatives to resolving a case through the court system.  But they are two very different alternatives to the courts. A useful way to describe mediation is as “assisted negotiation”.  A neutral person will help the disputing parties voluntarily resolve their dispute through discussions.  Mediators use different techniques to help parties reach a compromise.  If the mediation is successful, the parties won’t sue each other and will agree to end their dispute.  Typically one party will agree to compensate the other party. A useful way to describe arbitration is “private justice”.  In an arbitration one or more arbitrators will act as a judge and jury to decide the outcome of a dispute.  Instead of suing in court, the parties will bring their claims against each other in a private proceeding.  Arbitrations are usually confidential, as opposed to court proceedings, which are usually entirely public.  Unlike a mediation, the parties are not trying to resolve their argument through negotiations, they are trying to win by proving or disproving liability. Many contracts include provisions that require the parties to arbitrate.   These provisions are known as “arbitration clauses.”  The arbitration clause will state that in the event of a dispute, the parties agree to not sue in court but instead to initiate...

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What does it mean when a defendant is ‘indicted’? Is the defendant guilty?

An indictment just means that a person was charged with a crime.  The defendant is not guilty, but he was accused of committing the crime. One special characteristic of the United States is that in federal courts and often in state courts a “grand jury” indicts the defendant.  A grand jury is a large jury, 16-23 persons, which reviews the evidence presented by the prosecutor and determines whether there is at least enough evidence to accuse the defendant of committing the crime.  Grand juries are intended to, among other things, act as a shield against meritless prosecutions.  Not all states use the grand jury system and some states only use grand juries for certain crimes.   If the grand jury agrees that there is enough evidence the foreperson of the grand jury will sign the document with the accusations against the defendant.  We would say that the grand jury has indicted the defendant.  Below is a short video on grand...

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What is a fee simple determinable?

I am working to get more property law videos up on my YouTube page.  I just loaded a new one on the fee simple determinable.   Property law in law school is mainly focused on real property, rights to land.  An interest in land is called an estate.  There are different types of estate. A fee simple estate means that a person has as many rights as possible with respect to a particular piece of land.  He can do what he wants with the land (subject to applicable zoning laws of course) and can give it to someone else.   A fee simple determinable is just like a fee simple estate except that the person’s interest in the land can end automatically if something occurs. Let’s say O gives land to A: “I convey this land to you and your heirs so long as you use it for educational purposes.”  Our magic words here are “so long as”.  “So long as”; “while”; “during”; and “until” are words that may create a fee simple determinable.  A has the land but as soon as he no longer uses the land for educational purposes, the land automatically reverts back to O....

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What does it mean when Congress “imposes stricter pleading requirements?”

Generally speaking, it is easy to commence a litigation in the United States because pleading requirements are not strict.  That is, a plaintiff can usually file a lawsuit without including too much detail and without including evidence in the complaint.  The additional details and evidence can come later.  These same lax rules also apply to counterclaims and defenses.  Rule 8 of the Federal Rules of Civil Procedure imposes three requirements on a complaint: a short and plain statement of subject matter jurisdiction, a short and plain statement showing that the plaintiff is entitled to relief, and a demand.  Rule 9 requires some additional detail if a complaint or counterclaim alleges fraud (or a defense relates to a mistake).   Some people criticize lax pleading requirements on grounds that it harms defendants who must pay money to defend or to settle meritless claims. Congress enacted the Private Securities Litigation Reform Act (the PSLRA) in 1995 to curb purportedly meritless securities fraud litigation. The PSLRA makes it more difficult for plaintiffs to commence the lawsuit by requiring additional details in the complaint.  Recently, interest groups in the United States and members of Congress have worked to enact stricter pleading requirements and other reforms related to patent troll litigation.   You might want to look at some videos I uploaded regarding pleading requirements in the federal...

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What is tag jurisdiction?

Tag is the US name for a game children play where one child chases after other children.  The object of the game is for the child to touch  another child.  When he touches the other child he will yell, “Tag!”   “Tag” jurisdiction is a way for a court in one state to consitutionally assert personal jurisdiction over an out-of-state defendant who visits the state where the court presides.  The court will have personal jurisdiction if the defendant is properly served while in the state.  “Properly served” means receiving proper notification of the lawsuit.   For example, let’s say Peter sues Debby in New York.  Debby lives in Florida and New York does not have personal jurisdiction over her.  One day, Debby visits New York.  Peter serves notice on Debby of the lawsuit while she is visiting New York – –  let’s say he hands her a copy of the complaint and the court agrees that handing her the complaint is proper service.  Now the New York court can constitutionally assert jurisdiction over Debby, even if she has no other contact with the state.  This is similar to the game of tag children play because Peter successfully caught up to and “tagged” Debby   Some videos on personal jurisdiction are here.  ...

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