The Legislative Branch
The laws of the country originate from the three branches of government. The legislative branch, or the U.S. Congress, passes statutes according to the limits set forth by the constitution. The executive branch, which consists of the Office of the President down to the different departments, lays down implementing rules defining more precisely the general statutory provisions found in the laws passed by Congress. Then the judiciary branch interprets the laws and applies them in deciding disputes, such decisions later becoming part of the law of the land.
This is known as the doctrine of stare decision or the principle of precedent. In handing down their judgments, U.S. courts are oftentimes required to interpret the law and apply their interpretation to the dispute at hand. Once a law has been interpreted by a court for the first time, this interpretation is used as a precedent or a guide by equal or lower-ranked courts in deciding on future cases involving the same law under similar circumstances.
This was what happened in Digital Sales Corporation vs Engineering Associates, Inc. – an earlier ruling or decision on a similar case was cited by the court in deciding the case under the doctrine of stare decision. In cases where the U. S. Constitution is silent, the courts of the land still refer to the common law. Common law refers to the “judicial decisions, customs, and general principles that began centuries ago in England and continue to develop today.” (Friedman, 2004)
A typical lawsuit starts with the filing of a complaint, a notice of which is served to the respondent who is required to answer the charge within a specified period of time. Once the complaint is properly filed and the “answer” by the respondent duly received, a pre-trial discovery follows where the parties start gathering the evidence they would be using for the trial. They do this either by interviewing witnesses or gathering the necessary documents.
Then a pre-trial conference is called for the purpose of narrowing down the issue to a more specific level and at the same time try to settle the dispute out of court. If the attempt to settle the dispute out of court fails, the court schedules the trial itself where both parties argue their cases and present their evidence. After all the evidence and the witnesses have been presented, the presiding judge of the court, the arbitrator, or the jury, if it is a jury trial, hands down the judgment. This judgment is not yet final by any means, because after the promulgation, the losing party is allowed a certain period where he or she could appeal the judgment to a higher court. (Free Advice, n.d.)
The three most common methods of alternative dispute resolution (ADR) are: mediation, arbitration, and case evaluation. Mediation utilizes a neutral party who is acceptable to both parties in the dispute in helping resolve the problem. This type of ADR is most effective in cases where disputants are prepared to cooperate with one another for the purpose of settling the dispute amicably, the final resolution often benefiting both parties of the dispute. Arbitration, on the other hand, employs a neutral arbitrator who decides on the problem after hearing and studying the arguments of both sides.
Unlike in mediation where the mediator only assists the parties reach a mutually acceptable solution, arbitration empowers the arbitrator to decide on the dispute after the parties have submitted their arguments. This ADR type generally resolves disputes faster than mediation. In the third type – case evaluation – again, a neutral party is involved, this time as a case evaluator. This neutral party studies and evaluates the arguments of the parties and comments on their weaknesses as well as on their strengths.
Case evaluation is advisable in cases involving scientific and/or technical issues requiring the knowledge of an expert. After the arguments are evaluated, the dispute is sometimes resolved once the evaluator comes out with his or her evaluation of the arguments. If the problem is not resolved, the same evaluation of arguments often facilitates the conflict resolution when it enters the arbitration phase. (Superior Court of California, 2006)
Free Advice. (n.d.). What are typical stages in a matter that goes to litigation? Retrieved
August 14, 2007, from
Friedman, M. J. (2004). OUTLINE OF THE U.S. LEGAL SYSTEM.
USINFO.STATE.GOV. Retrieved August 14, 2007, from
Superior Court of California. (2006). Alternative Dispute Resolution. Retrieved August 14,
2007, from http://www.fresnosuperiorcourt.org/alternative_dispute_resolution/