Expert answer:W1: Political/Legal/Ethical Issues – Dispute Resol

  

Solved by verified expert:MGT-252 Political/Legal/Ethical Issues in BusinessWeek 1 – Dispute ResolutionTwo Parts to this assignment:Part I: Answer the DQ in 50 words or more (be specific):Jurisdiction Case—Chicken ChaletPart II: It is in the best interest of businesses to avoid litigation as it is costly and time consuming. However businesses often argue that to fail to litigate may open them to future claims of a similar nature.**COMPLETE ASSIGNMENT DETAILS ATTACHED** **FOLLOW THE ATTACHED INSTRUCTIONS**
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MGT-252 Political/Legal/Ethical Issues in Business
Week 1 – Dispute Resolution
Two Parts to this assignment:
Part I:
Answer the DQ in 50 words or more (be specific):
Jurisdiction Case—Chicken Chalet
An Arizona company owned a franchise for a Chicken Chalet restaurant, which it operated in Arizona.
The franchisee refused to discontinue operating after the franchise was terminated. The franchisor,
Chicken Chalet Inc., a Florida corporation, wants to file a lawsuit in Florida against the Arizona
franchisee. The franchisee claims that the Florida court has no personal jurisdiction.
Does either the Florida state court or Florida federal court have jurisdiction? To answer this question,
discuss the applicable rules for federal and state court jurisdiction, and why they do or do not apply in
this case.
Part II:
It is in the best interest of businesses to avoid litigation as it is costly and time consuming. However
businesses often argue that to fail to litigate may open them to future claims of a similar nature.
Review the case summary of Cooper Tire & Rubber v. Mendez, Supreme Court of Texas 204.S.W.3d797
(2006), attached.
Research the case for additional legal commentary.
Write a paper of no less than 750 words, excluding title and reference pages, which answers the
following questions:
1. The Texas high court held that expert testimony relied upon by the plaintiffs to establish their case.



Why was it considered not reliable?
What would have needed to have been done to have it viewed as reliable?
Why did the court then not order a new trial?
2. The jury believed the expert testimony presented for the plaintiffs. Why did their judgement not
stand?
3. What was the reasoning behind Cooper Tire & Rubber’s decision to litigate the case rather than seek
arbitration?
4. If you were the legal counsel for Cooper Tire & Rubber, would you have chosen litigation or
arbitration and why?
Include a minimum of two credible sources.
Tools of the Discovery Process
The discovery rules offer several ways to get information from an opposing party: depositions,
written interrogatories, orders for production of documents, requests for admissions, and orders
for a mental or physical examination. According to the Federal Rules of Civil Procedure, a party
seeking information must select a discovery tool that is not “unduly burdensome” to the other
party. In practice, parties can force out nearly any information related to the legal issues. The
opposing party cannot refuse to comply just because compliance is time consuming or costly.
Depositions and Interrogatories A principal discovery tool is the deposition— the sworn, inperson testimony of a witness recorded by a court reporter. The person whose deposition is taken,
perhaps an eyewitness to an accident or an expert witness expected to provide testimony at trial,
may be questioned by attorneys from both sides. Sometimes depositions are videotaped.
Lighter
Side of the LAW
Is There Something Unclear About the Rule, Counselor?
In federal suits, Rule 8a requires the initial pleading to be “short and plain.” Rule 9b requires it to
be to the point, to let the other defendant know what the suit is about. Washington state attorney
Webb, whose client was suing GMAC Mortgages, submitted a 465 page pleading. It included 37
pages of quotes from e-mails and 341 pages that largely repeated points made in assorted claims
at various points.
Federal district judge Leighton of the Western District of Washington was not amused. He
dismissed the complaint.
Source: New York Times
The deposition is a useful way to find information relevant to the dispute, including leads to
other witnesses or documents. It may be used at trial to impeach, or challenge, a witness who
attempts to change his story at the trial. The deposition of a witness who is unavailable at the time
of the trial may be allowed in place of live testimony.
Written interrogatories are questions submitted by a party to a case to the other party, or a
witness, or another person with relevant information. The party receiving the interrogatories
prepares written answers, usually with the aid of an attorney, and signs them under oath. Although
the interrogatories lack the face-to-face spontaneity of a deposition, they can require the party to
provide information from her records and files—the kind of information not carried in one’s head.
Expert Witnesses Many trials involving businesses use expert witnesses to help establish facts
critical to a case, such as the value of lost profits, the costs to a victim of an accident, or the
scientific evidence of harm from a product. These witnesses usually have their depositions taken
before trial so that the other side knows the essence of their testimony and can prepare questions
for trial.
There have been abuses by experts who want to please their clients and overstate the case by
inflating damages or asserting harm to exist based on reasoning contrary to general scientific
opinion. The Supreme Court has instructed courts to exclude evidence that is not reliable and is
contrary to scientific standards. The Court has held that when expert testimony is critical to a case
but is rejected because it is not scientifically sound, then it is proper to grant summary judgment
to the defendant and not allow another trial on the matter. The Court does not want to encourage
parties to use hired guns who provide evidence that is not credible.
We see an example of faulty expert testimony in the Cooper Tire case. The faulty testimony
means the plaintiff loses the case as it rested on the claims made by the expert.
Cooper Tire & Rubber v.
Mendez
Supreme Court of Texas 204 S.W.3d 797
(2006)
Case Background Mendez was driving a minivan with six passengers when a rear tire made by
Cooper Tire lost its tread. Mendez lost control and rolled the minivan. Four passengers were
killed. Mendez and two others survived. Examination of the tire showed that a nail had punctured
it. The survivors sued Cooper for product defect. A jury awarded over $11 million in damages; the
appeals court affirmed. Cooper appealed.
Case Decision Willett, Justice
***
To establish proof of a manufacturing defect that caused the tread separation, plaintiffs relied on
the expert testimony of Richard Grogan…. The theory presented…was that the tire failed because
the “skim stock” was contaminated with hydrocarbon wax at the plant where it was manufactured,
causing the belts to separate. “Skim stock is a specially formulated rubber compound that coats
the steel belts in a steel-belted radial tire and through vulcanization holds them together.” Cooper
Tire complains that the testimony…was inadmissible….
Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is relevant
and based on a reliable foundation….
Richard Grogan conceded that he is not a chemist, an engineer, or a tire designer. He obtained
an ordinary national certificate, the British equivalent of a high school diploma, and holds no postsecondary degrees. He does not consider himself an expert in accident reconstruction. He worked
for many years for the Dunlop Tire Company in England, in its technical department, tire
examination lab, and technical service section, where he examined tires including tires that had
failed. He left Dunlop in 1980. He has taught courses…on tire failures. In 1987 he published a
book entitled An Investigator’s Guide to Tire Failures. This book was revised and expanded in
1999. He has also written many articles on tire failures.
Grogan opined that the tire separated because the skim stock was contaminated.… He testified
that the tread separation did not originate at the nail hole because he detected “polishing” in other
portions of the tire’s layers, indicating that the separation started elsewhere. He described his
observation of polishing at one point in his testimony as seeing “how the rubber has been removed
from the cords and then left quite bright and clean.”…Grogan also offered reasons that the tire did
not fail due to the nail, excessive vehicle weight, under-inflation, or ordinary wear.
Assuming that Grogan was generally qualified to testify on the subject of tire failures, he
presented a theory of wax contamination that was unreliable and should not have been admitted.
The only publication Grogan could cite as supporting his theory was his own book’s support for
the proposition that liner marks are indicative of poor adhesion….
The record is devoid of proof that Grogan’s theory has achieved such general acceptance. There
is no evidence of a general acceptance in the scientific community that wax contamination is a
cause of tire belt or tread separations, or that liner marks and polishing are accepted as proof of
such a theory….
[Chemical engineer] Herzlich and two other Cooper Tire experts, Jerry Leyden, a chemist and
former tire compounder, and Jean Hoffman, the chief chemist at the plant where the tire was
manufactured, testified that wax migration is a normal, expected, and well understood
phenomenon, that it occurs during the manufacture and throughout the life of the tire, and that wax
migration was not indicative of a defect….
Grogan offered no theory as to how the tire could be used for 30,000 miles, and suffer a nail
puncture at some point, without failing if wax was improperly deposited on the skim stock during
the manufacturing process and the tire was defective when it left Cooper Tire’s plant….
***
In summary, Grogan presented a novel theory of a manufacturing defect that did not…meet
the reliability standard we have established for the admission of expert testimony. Failure to meet
this standard means that his testimony was legally no evidence of a manufacturing defect or a
defect that caused the tire failure….
In these circumstances we hold that plaintiffs’ attempts to eliminate other possible causes for
the tire failure were legally insufficient to establish a manufacturing defect.
We reverse the judgment of the court of appeals, and render judgment in favor of Cooper Tire.
Questions for Analysis
1. The Texas high court held that the expert testimony relied upon by the plaintiffs to establish their
case was not reliable. Why did the court not order a new trial?
2. The jury believed the expert testimony presented for plaintiffs. Why did their judgment not stand?
Sanctions for Failing to Respond to a Discovery Request Judges have broad powers to impose
sanctions against a party who fails to comply with discovery requirements. If a party fails to
comply with the requirements, of, say, a deposition, the requesting party can make a motion to the
judge to require compliance. If the party does not comply with a court order, the court may order
a default judgment granting victory to the other party or find the non complying party
in contempt of court and order the party to jail or impose a fine. For example, one federal judge
fined Wal-Mart $18 million for having “a corporate policy” of frustrating discovery and
withholding evidence in numerous cases. Judges may also require the party or attorney who caused
the problem to pay the costs of the other party relating to the discovery dispute.
Orders for the Production of Documents An order for the production of documents allows a
party access to information in the possession of the other party. The kinds of information that are
often sought are e-mails, medical bills, business records, letters, and repair bills. The party seeking
the information usually has the right to inspect, examine, and reproduce. Businesses have an
obligation to maintain company records in a coherent manner, so they may be accessed in case of
a lawsuit. Failure to do so may result in sanctions by the court and even a judgment for the opposing
party. If a trade secret or other confidential information is involved, a company can get
a protective order that limits access to the material so as to ensure confidentiality.
Requests for Admissions Either party can serve the other with written requests for an admission
of the truth in matters relating to the dispute. Requests are used to settle facts about which there
are no real disputes. That eliminates the need to establish such matters at trial. For example, in a
contract dispute over the price of a product, one party may ask the other to admit that deliveries
were made according to the terms of the contract. If admitted, these facts need not be proven at
trial.
Mental and Physical Examinations When the physical or mental condition of a party is an issue,
the court may be asked to order that party to submit to an examination. Because of concerns for
privacy, the party requesting the order must show a greater need for the information than in
requests for other forms of discovery. Generally, the party requesting the order specifies the exact
type of mental or physical examination desired and the time, the place, and the specialists who are
to conduct it.
Discovery: Impacts on Business
Discovery can impose significant costs on businesses. Firms can be forced to endure expense and
disruption, while managers answer questions and produce documents. For example, in one
regulatory dispute between Ford Motor and the Federal Trade Commission, it cost Ford $4 million
just to copy required documents. The burdens are heavy when executives have to take time to
prepare for and provide a deposition. In disputes involving technical matters or significant detail,
a deposition may take two weeks or more, plus days or even weeks of preparation time.
It is not uncommon for the chief executive of a corporation to get a subpoena requesting that
he appear for a deposition. In most cases, the information sought is in the hands of subordinates.
Courts protect executives if the purpose of a deposition is to harass them, but their participation is
not uncommon. The disruption of business caused by having executives away from work for
several days to prepare for and give a deposition is one more reason out-of-court settlements are
likely.
INTERNATIONAL PERSPECTIVE
British Courtroom Procedure
Although both British and American court proceedings are based on the adversarial model, there
are some significant differences in how that model is implemented. The classic British courtroom
comedy series Rumpole of the Bailey, shows some of these differences in action. One of the most
important is the division of the British bar into solicitors and barristers. Solicitors handle matters
such as advising commercial and private clients on business and property matters. Barristers do
mostly litigation. A business client involved in a legal dispute would typically hire a solicitor for
advice before litigation and then add a barrister to its legal team once a decision to litigate had
been made. Although U.S. attorneys typically specialize as well, the degree of specialization is
much greater in the British system.
Once in court, British courts have what commentators describe as “a more civil and cooperative
atmosphere” than their American counterparts. British barristers typically remain behind one long
table and stay behind that table while questioning witnesses or speaking to the judge or opposing
counsel, rather than walking about as in American courtrooms. Most objections about evidence
are raised outside the presence of the jury and resolved before the witness is called. As a result,
barristers rarely, if ever, object to a line of questioning by the other side, relying on the judge to
object to or redirect the opposing barrister. As a result, the jury sees a more continuous flow of
information and is less distracted by legal maneuverings by the attorneys.
At the end of the evidence phase in a British court, the judge summarizes the evidence for the
jury before instructing them on the relevant laws, quite different from U.S. courts where judges do
not discuss the evidence with the jury. The order of trial is also different, with the defense opening
statement coming at the end of the plaintiff or prosecution’s evidence rather than at the start of the
trial.
Some comparative law scholars believe that these procedural differences make British trials
superior in helping the jurors to understand the trial evidence. However, others worry that the more
active role of the judge makes it more likely that one party will be prejudiced by the judge’s
nonverbal behavior (sighing, frowning, etc.) during the trial. Since judges know quite a bit about
a case by the time it reaches trial, some worry that their views, based on that information, affects
judges’ facial expressions, tone of voice, and so forth.
U.S. appeals courts have overturned trial verdicts because of such behavior, making this a real
concern. Some social science experiments have shown people tapes of trials conducted under both
U.S. and UK rules. Participants generally see the UK version as more civil and view the judge
more positively than the U.S. version, but participants still prefer the U.S. procedure overall.
Summary Judgment
At the close of discovery, either party may move for a summary judgment. The Federal Rules of
Civil Procedure state, in Rule 56(c), that summary judgment “shall be rendered…if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.”
The key is not that there are no differences over what happened but that, despite those
differences, when the court looks at the undisputed facts, it can apply the law to the facts and
resolve the dispute. If the motion is granted, the case is over or the judgment may apply to only
some issues, which are eliminated, and the trial proceeds on the remaining issues. For example, in
the Cooper Tire case, the trial court should have granted summary judgment in favor of the
defendant due to a lack of credible evidence by the plaintiffs.
Pretrial Conference
Either party or the court may request a pretrial conference. These commonly held conferences
normally involve only the attorneys and the judge. The conferences often simplify the issues and
plan the course of the trial, agreeing on witness lists, exhibits, and the schedule. To ensure more
efficient trials, judges urge the parties to focus on the key issues. Also at pretrial conferences,
judges usually encourage the parties to attempt to reach an out-of-court settlement.
TEST YOURSELF
1. In Cooper Tire & Rubber v. Mendez, the Supreme Court of Texas held that;
a. Mendez’s attorney failed to file motions properly on time, so Mendez lost his right to use Cooper
Tire.
b. Cooper Tire would be fined $1 million for failure to respond in a timely manner to documents
properly requested by Mendez.
c. Cooper Tire’s requests for a number of depositions were not justified; they were an attempt to run
up costs on Mendez.
d. Mendez’s expert witness was not qualified to testify, so his testimony would be disqualified.
2. Sworn, in-person testimony of a witness recorded by a court reporter is called: ________.
3. A case begins by the _______ filing a ________ against the ________ who may have claims and files
a _______.
4. Parties are not allowed to see “critical documents” that support an argument being made by the
opposition in a case: T–F.
5. A party may not demand a physical examination of an opposing party in any legal proceeding due to
constitutional protection of personal privacy: T–F.
Answers: d; a deposition; plaintiff, complaint, defendant, counterclaim; F; F.

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