Talk:Summary judgment
From Wikipedia, the free encyclopedia
 |
This article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field and the subjects encompassed by it. | |
| ??? | This article has not yet received a quality rating on the assessment scale. | |
| ??? | This article has not yet received an importance assessment on the assessment scale. | |
[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. —Preceding unsigned comment 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)
-
- We should definitely avoid giving disproportionate attention to a minority view, but it this is not a case of it being "raised and rejected in thus-and-such" case. The author, Thomas, says the whole thing is unconstitutional, that the primary citation, Fidelity & Deposit v US, was ruling on something else, and that the expediency arguments about keeping it around are flawed. It is certainly a minority view, but it was published in the Virginia Law Review, not on someone's homepage. Here is a link to SSRN page mentioned above [1]. JoshNarins 13:35, 29 April 2007 (UTC)
[edit] Disagreement over the SJ collision example
While the reasoning behind the SJ example is correct, I believe that the explanation of the Plaintiff's position is over-simplified and does not mirror real-world practice. In actuality, the Plaintiff would sign an affidavit stating that his light was green at the time of entering the intersection. If the plaintiff's affidavit is admissible (which, I don't see why it wouldn't be), SJ would be denied. This is because it is improper for the court to weigh evidence at a summary judgment stage and the issue must be submitted to the fact finder. Therefore, I think a sentence should be added to the example that states something to this affect. "However, if Plaintiff produces admissible evidence (such as his affidavit if based on personal knowledge) that Plaintiff had the green light, SJ is improper regardless of how much evidence exists to the contrary. This is because summary judgment's purpose is to pierce the pleadings and determine liability when material facts are not in dispute. When the facts must be weighed, the case must be submitted to the fact finder." —Preceding unsigned comment added by 209.43.38.162 (talk • contribs) , 5 April 2007
[edit] And There's the Rub in Having a Universally Editable Encyclopedia
The contributor who "doesn't see" why "plaintiff's affidavit wouldn't be" admissible confesses a remarkable dearth of imagination. First, in U.S. practice an affidavit is generally not admissible at all, unless it falls under an exception to the rule barring hearsay. Second, not every Plaintiff is prepared to lie, whether in writing or live testimony; some people will not swear that the light was green when they know it was red. However, these are but two of many reasons that the Plaintiff's testimony might be inadmissible or otherwise unavailable. Nonetheless, at least the contributor's suggestion was sensible, and would have added to the value of the example.
But, instead of a contributor tinkering with the example, it's simply been removed. Brilliant!
And -- if you really want to discuss the former "limitation" of the article to U.S. practice, I certainly think you've added immeasurable balance by referencing those equally important jurisdictions of England and Wales.
Congratulations! The article is now short, and understandable only to those who already knew the information it contains. But at least it maintains the all-important pretense that the world revolves around Europe.
[edit] ... see Summary
On a lighter note, I had a quick style comment. While in a sleep-deprived state I skimmed this header:
- For the simplification and shortening of a longer text see, Summary.
and mistook it for a link to a summary of this same article. This article is, after all, something of a "longer text". I'm not going to suggest any edits, as I remain in that same sleep-deprived state, but maybe someone else has an idea for clarifying that it's a link to the article about summaries, not to a summary of the article. Matt Fitzpatrick (talk) 16:29, 25 February 2008 (UTC)
