Talk:Summary judgment
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[edit] U.S. courts and others
The article in its current form is essentially correct as a description of the procedure for summary judgment in the United States. Does it have any applicability in other legal systems, though? If not, it should note in the opening sentence that it applies only to the U.S. Presumably other systems have ways to avert unnecessary trials but they may use a different term and different sets of standards. JamesMLane 15:03, 4 Dec 2004 (UTC)
[edit] What?
The idea of an encyclopedia article is to explain things in lay terms. I cam here looking for such an explaination. Instead I found legalese gibberish.
The moving party may reference various documents in motion
What is a "moving party", and what are "documents in motion"?
Summary judgment is awarded if the moving (or cross-moving)
"Cross-moving"?
party can successfully argue that the undisputed facts and the law make it clear that it is not possible for the other party to prevail if the matter proceeds to a trial.
Wouldn't "can not win" be a better replacement for this entire statement?
In some legal systems, the court also has the power to grant summary judgment in favor of a nonmoving party.
A what?
A factual dispute does not preclude summary judgment unless the disputed fact is outcome determinative under the governing law.
"outcome determinative"? Does this statement mean that some factual disputes may not be important?
In other words, if a trial could result in the jury (or judge in a bench trial) deciding in the favor of the opposing party, a summary judgment is inappropriate.
How is this "in other words" for the statements it follows?
A decision granting summary judgment can be appealed...
Should this not be the start of a new paragraph?
Partly because of workload issues, it is not uncommon for the summary judgments of lower level US courts in complex cases to be overturned on appeal.
What workload issues would cause this?
Maury 14:28, 6 October 2005 (UTC)
[edit] An attempted rewrite in understandable language
I've been practicing law in New York for more than twenty-five years and teaching at law school for nearly as long. One cannot teach law without becoming acutely aware that there are many words that lawyers take for granted that are simply not understood by non-lawyers. I've tried to rewrite this in a way that can be understood by an educated layman. Unfortunately, civil procedure is not simple; otherwise, law would not be considered a "learned profession." Nevertheless, it is possible (and important) to give non-lawyers a general understanding of some of the most fundamental concepts in civil practice. I've tried to do so here. While I originally struggled to show deference to the prior draft, I see that I have not succeeded so well in that. My apologies. Please read this with a layman's eye, however, and see if I have not improved on what was here before. ---- lawman
- And you've done an excellent job. The article is not only clear, but I picked up several other bits of legal information I didn't know before, like the roles of the jury and judge. Well done! Maury 21:52, 9 October 2005 (UTC)
Thanks, Maury. I rewrote this article with your comments in mind, and to demonstrate to my own satisfaction that it is possible to explain to others anything one understands, however complex. So, in a sense I rewrote it for you, and I'm gratified that you've returned to look again. That said, I must confess that I was shamed into rewriting a "legal" contribution by the incredibly scholarly level of some of the other articles contained in this publication, specifically those devoted to various aspects of linguistics and English usage. I never would have believed people capable of the level of good will and cooperation necessary to create such an eclectic, wonderful, and funfilled storehouse of knowledge. ---- lawman
[edit] Talk page layout
Why should talk page threads go in chronological order? That has the undesirable effect of forcing someone to travel down to an intedeterminate bottom in order find out what's current, leaving outdated comments like this one permanently enshrined at the top --- permanently. These should go in reverse chrono order. What's the point of keeping this comment around, anyway? Hasn't it been superseded? ---- lawman
- The short answer, which should be familiar to a lawyer even if you don't agree with it, is, "Because we've always done it this way." If you start a new thread by clicking on the "Post a comment" link on the left-hand menu on any talk page, the software will automatically put your new thread at the bottom of the page. Within each thread, keeping the conversation in chrono order is the format prescribed by Wikipedia:Talk page guidelines#Layout.
- The main reason for this procedure is that conversations are much easier to follow if they're in chronological order. New threads are sometimes on completely different subjects, but quite often they follow up on older threads, so chrono order should be used for threads as well as for the comments within each thread. (Exception: Within a thread, you may use indentation to indicate that you're responding to a specific earlier post, and place your indented response immediately after the post you're answering, even if that puts it out of chrono order. In effect, you're creating an unmarked sub-thread within the thread.)
- It's also a good idea for each new thread to be given a heading. (Again, the software reminds you of this by providing a subject line when you click on "Post a comment".) As you can now see from this page, when there are more than three headings, a table of contents is automatically generated. Thus, in a page of any size, no one has to go to an indeterminate point; the TOC entries are hyperlinks to the headings (or subheadings). There's generally no reason to use horizontal dividing lines on a talk page.
- Along with using the TOC, people often use the "Page history" to read a talk page. If I see from my watchlist that there's been activity on a talk page I'm monitoring, I usually click the "hist" link on my watchlist to see the talk page history. On that history, I go to the most recent comment that I recognize and remember reading. Having found the entry for that comment, I click "cur" to the left of it. That shows me the cumulated changes since the last time I read the page.
- Material at the top isn't there permanently. We don't deleter talk page comments, even if they've been "superseded" -- the discussion on the talk page is a valuable adjunct to the article (and you should usually look at the talk page before making any major changes). Earlier comments are, however, archived as the page grows. Some pages, receiving little traffic, have never been archived. On the other hand, Talk:George W. Bush has 32 archives in the can already. The oldest post on the current talk page there was made less than two months ago. See Wikipedia:How to archive a talk page for more information. JamesMLane 01:52, 11 October 2005 (UTC)
[edit] Worldwide Legal Practice Does Not Exist
What's with the "only U.S." complaint? Not every procedure has a direct analog in legal practice worldwide. Legal practice is inherently national or local. If you're looking for "the world's foremost authority" to harmonize the world's different legal practices, you'll have a long wait . . . and another encyclopedia.
[edit] Law Professor writes that summary judgment is unconstitutional
In a Virginia Law Review article to be published in the Spring of 2007, University of Cincinnati College of Law Professor Suja Thomas argues that summary judgment is unconstitutional. The article, Why Summary Judgment is Unconstitutional, is also available on the Social Science Research Network at www.ssrn.com. Anticipating what she describes (with understatement) as "resistance from many", Thomas carefully navigates Seventh Amendment history and jurisprudence and concludes that the "conventional wisdom" that summary judgment is constitutional is "wrong". Thomas, with an eye toward those who think that "summary judgment is necessary for the proper functioning of the Federal Courts" closes her analysis with an evaluation that settlements and trial prevention will continue as much without summary judgment as with. —The preceding unsigned comment was added by User:Retiredlawyer (talk • contribs) 02:37, 11 October 2006 (UTC).
- I don't think this would be worth extensive discussion here -- probably something along the lines of "here's why there's a Seventh Amendment issue, it was raised and rejected in thus-and-such case, but some scholars think that case was decided incorrectly (citation to Thomas)". What we should avoid is giving disproportionate attention to a POV that's distinctly in the minority. JamesMLane t c 08:35, 11 October 2006 (UTC)
