October 2011
Masaryk University
Class I
Peter Kolker – Attorney at Law since 1966, practicing in
Washington, D.C., with the law firm of Zuckerman
Spaeder, LLP
– 45 Years’ Experience with criminal and civil
litigation, arbitration and mediation
– Including trials, appeals, arbitration hearings,
private mediations in the U.S. and some in Europe
(Germany, Sweden, the U.K.)
Special Guest: U.S. Ambassador Norman Eisen, a
colleague, then member of White House Staff of President
Obama, and in 2011, Ambassador to C.R.
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Topics we will cover:
A. U.S. Dispute Resolution Methods
 Fundamentals of U.S. Judicial System: how it works;
how it affects business outside of the U.S. and how it
contrasts with Czech Republic system.
 Why U.S. laws can operate beyond the U.S.
 How disputes are resolved in the U.S. – federal and
state court systems; and out-of-court dispute
resolution through arbitration and mediation.
 Advantages and disadvantages of each method:
what would be best for a Czech business problem?
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B. Transparency in Government, Corporations
and Non-Government Organizations to assure
fairness
 What good is any dispute resolution system if corruption
destroys fairness?
 How does the U.S. system assure (or try to assure)
fairness?
 What measures can assure that the judges, arbitrators,
mediators and public prosecutors perform their functions
without improper influence?
 What role is there for private citizens who become aware
of corruption, and what legal procedures are available in
the U.S. for exposing corruption or unfairness?
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We will discuss:
 The role of a free press in exposing corruption.
 Limitations on election financing of candidates.
 The purpose of a “Freedom of Information Act” to
bring transparency to decision making.
 The role of the “whistle blower” – what is it and is it
good, bad or both?
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U.S. Ambassador Eisen – How can we improve
the Rule of Law and assure ethical performance
by business people, lawyers, judges and
prosecutors?
 Role of the Public, the Press and of Government
Officials in achieving these goals.
 Ambassador Eisen’s experience as Ethics Officer in
President Obama’s White House.
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Expectations for the Class:
 My hope is for class participation: as much as you
are comfortable with – the more, the better.
 Between Class II and Class III, a “Problem Set” will
be provided: outlining a dispute between a Czech
Company and a U.S. Company.
 We will ask for two groups to be formed to give us
their ideas of the best way to resolve the dispute.
 There will be one final paper (approx. 10 pages) at
the end of the class, which I will read and return
with comments.
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Common types of disputes you will likely
encounter
A. Civil Disputes
 What do we mean by “civil dispute”?
 Dispute between companies or individuals.
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Common types of civil disputes:
 Contracts: your company agrees with another to
ship products but the products don’t arrive on time;
or they are not as expected; or not enough of them.
As a result, you or the buyer loses money.
 Product Liability: the product you purchased
explodes and causes injury.
 Personal Injury: during a business trip to the U.S.,
you are injured in a car accident.
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B. Common Types of Criminal Disputes we will consider
 Payment to a Government Official - to get or keep a
contract with the government, a payment is made to a
government official.
– could be a crime in the U.S. as well as in the C.R., if
done for a U.S. company, even if the payment
happened in the C.R.
 Payment to a U.S. Government Official – to influence his
conduct: such as, payments to legislators:
– Judges
– Prosecutors
 Agreement on Prices or on Bids - setting a price among
competitors – could be a crime in the U.S. as well as in the
C. R. if done for a U.S. company, even if the agreement was
made in the C.R., but affected US market.
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 More about the Common Civil Disputes –
 1. Contract Dispute
 Czech company does business with a U.S.
company and something goes wrong with the
performance of the contract.
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 2. Product Liability: the product
you purchased is defective and causes
injury.
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 3. Personal Injury: During a
business trip to the U.S., you are
injured in a car accident.
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 If these civil disputes are going to be resolved
in the U.S., they will be resolved most often
through litigation in the U.S. Court system.
 NOTE: Some of the disputes just mentioned –
Contract disputes, for example – could be resolved
in the Czech Republic or in the U.S. Could be agreed
to by both sides
 OTHER disputes where the result occurs in the U.S.
will be decided in the U.S. by U.S. courts.
 There are other methods of resolution (arbitration
and mediation) which we will discuss.
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 Criminal Disputes where the U.S. is involved
but the action takes place outside the U.S.
 Can they be decided in a U.S. Court ?
 Can they be decided in the court of another country?
 Can a citizen from the Czech Republic be forced to
come to the U.S. to answer to criminal charges?
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Overview of the U.S. legal system:
 A “federal” system:
- U.S. Government (“federal” government)
- 50 state governments
- Laws of both the federal and state governments
can apply at the same time
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17
Who Can Do What (Continued)
Subject Matter Federal States Both
Federal elections ◄
Tax ◄
Local government ◄
Courts ◄
Borrow and spend ◄
Print money ◄
Military ◄
Police power ◄
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Overview of the U.S. legal system:
 Laws include:
– Statutes (enacted laws)
– Court decisions (precedent: where a decision in one
case controls the outcome of the next, similar case)
– Administrative rulings (agencies set detailed rules
that apply the law)
– Judicial interpretations of the law are important
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 Relation between U.S. Federal Government
and State Governments
 Federal Government is “supreme” – more important
than the state governments.
 FEDERAL:
 STATE:

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 Most important decisions of state courts can be
reviewed by the U.S. Supreme Court.
 Decisions of U.S. Supreme Court are final and
cannot be further reviewed.
 Decisions of U.S. Supreme Court can over-rule
(reverse) the decision of a state court.
 If U.S. (federal) laws conflict with State laws,
U.S. laws control.
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21
The Litigation Process I
Class I
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The Litigation Process I
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In the U.S.
– Judges are first practicing lawyers; there is not a
separate career path for judges.
– Federal judges are appointed for life.
– State judges may be appointed or elected, for a term of
years; then they must be re-appointed or re-elected
 They campaign for office and sometimes for re-
election
 Effect on independence
– State judges may return to private practice as lawyers
or may serve as professional arbitrators and mediators
and make more money.
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 Contrast to the Czech Legal System
– Code of laws governs the conduct;
– One system throughout the country
– Court decisions in one case do not necessarily affect the
outcome of the next case, even if similar, although this is
changing
– Judges are selected for long terms and do not come from
the group of practicing lawyers
– They do not run for office; their income and future
source of income is fixed
The differences in the U.S. and Czech legal systems can make
it difficult to decide how to resolve disputes when there is a
choice of places for the dispute to be resolved.
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