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(iii) Trial The third stage of the litigation/adversarial process is the trial It is the judicial examination and determination of issues between the parties to the action In a jury trial, the trial begins with the selection of a jury The attorneys for each party then make pening statements concerning the facts they expect to prove during the trial Then the plaintiff puts forth its case, calling all of the witnesses it believes are required to prove its case Each witness will be subject to direct examination and then cross-examination by the opposing party s attorney After the plaintiff has called all of its witnesses and presented all of its evidence, the defendant will then present its case in the same manner The plaintiff then has an opportunity to present additional evidence to refute the defendant s case in a rebuttal The defendant can respond in a surrebuttal Finally, each party has the opportunity to make a closing statement before the court (iv) Settlement At any time in the litigation process, the parties can attempt to settle the dispute without the intervention of the court This can be accomplished by participating in settlement discussions or by using alternative methods of dispute resolution (c) ALTERNATIVE DISPUTE RESOLUTION Alternative dispute resolution encompasses mediation, arbitration, facilitation, and other ways of resolving disputes focused on effective communication and negotiation, rather than using adversarial processes such as the courtroom Two basic types of alternative dispute resolution exist There are nonbinding methods, such as mediation, negotiation, or facilitation, which assist in reaching, but do not impose a resolution of the dispute There are also more binding methods, such as arbitration or adjudication, in which a neutral decision maker rules on the issues presented Combinations of these methods also exist Alternative dispute resolution is often used because it is the vehicle prescribed in an agreement or contract for the resolution of a dispute The US Constitution and most state constitutions provide for the right of trial by jury in most cases This right does not have to be exercised, and many cases are tried without a jury (ie, a bench trial where the judge is the trier of fact) In most states and in federal courts, one of the parties must request a jury or the right is presumed to be waived (d) REQUIRED PROOFS In order for a plaintiff to succeed in a claim for damages, it must satisfy three different but related proofs: liability, causation, and amount of damages if applicable If the burden of proof is not met on any one of these, the claim will fail (i) Liability The plaintiff must prove that one of its legal rights has been transgressed by the defendant It will present evidence attempting to prove that the actions of the defendant were in violation of the plaintiff s legal rights Similarly, the defendant will present evidence in an effort to prove that the plaintiff s rights were not violated, or at least were not violated by the defendant (ii) Causation If the plaintiff proves that the defendant has violated one of its legal rights, it must be shown that this violation resulted in some harm to the plaintiff Here, attorneys for the plaintiff and defendant will try to prove or disprove the nexus between the defendant s actions and some harm to the plaintiff (iii) Damages After presenting the evidence relating to the liability and causation issues, the parties next step in most cases is to prove damages Damages are one of a number of remedies that may be available to a prevailing plaintiff Other types of remedies include speci c performance (performance of the act that was promised), injunctions (an order by the court forbidding or restraining a party from doing an act), and restitution (the return of goods, property, or money previously conveyed) Damages are the only type of remedy discussed in this chapter The general principle in awarding damages is to put the plaintiff in the same position it would have been in if its legal rights had not been transgressed There are three main categories of damages: compensatory, consequential, and punitive Compensatory damages compensate the injured.

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