Most applications for summary decisions must be made according to specific rules regarding the content and quality of the information submitted to the judge. Among other things, most applications for summary decisions require or contain: page restrictions on defence counsel`s submissions; an instruction to set out the disputed issues of fact in advance; an instruction as to whether a relevant case exists; an instruction that all applications for summary judgment must be accompanied by electronic versions (on CD-R or DVD-R) in a format compatible with the Chambers containing complete and accurate summonses and complete extracts from statements and affidavits in order to facilitate the preparation of expert opinions; An instruction that all submitted parts conform to certain physical properties (e.g. be marked with letters or numbers so that the pages are numbered consecutively or „stamped with bates“); An instruction that quotations from statements or affidavits must include the appropriate page or paragraph numbers, and that quotations from other documents or materials must contain accurate quotations. Many judges also ask the parties to prepare model orders with a brief legal explanation to help the judge write the decision. A judge usually makes a preliminary decision on pleadings filed, and the lawyer has the opportunity to respond at a later hearing. Alternatively, a judge may accede to reasoning requests in a preliminary interview decision that specifies what points will be discussed before a decision is made. In the United States, courts generally do not have self-executing powers. In other words, in order for the court to be able to rule on a disputed issue in a case pending before it, one of the parties or a third party must apply for that purpose with a view to issuing a specific injunction. Some applications may take the form of an oral application in open court, which is then either summarily granted by the court or dismissed orally. Today, however, most applications (particularly on important or optional issues that could decide the whole case) are decided after a hearing preceded by the filing and service of legal documents. That is, the applicant usually has to provide written notice accompanied by some sort of written legal argument justifying the request.
The legal argument may take the form of a memorandum of points and authorities supported by affidavits or statements. Some states in the northeastern United States have a tradition in which the legal argument comes in the form of an affidavit of the lawyer, who speaks personally as himself on behalf of his client. In contrast, in most U.S. briefs, the memorandum is impersonal or written as if the client were speaking directly to the court, and the lawyer reserves statements of personal knowledge of a separate statement or affidavit (which are then quoted in the memorandum). One U.S. state, Missouri, uses the term „proposals“ for the memorandum of points and agencies. A „motion to dismiss“ asks the court to rule that an application, even if true as stated, is not an application for which the law provides for a remedy. For example, an allegation that the defendant did not greet the plaintiff as he passed him on the street would be dismissed, unless there is a legal obligation to do so, for failure to provide a valid claim: the court must accept the veracity of the factual allegations, but may conclude that the claim does not contain a remedy under applicable substantive law. An application made after the expiry of the limitation period must also be rejected. If the action is successful, it will be dismissed without evidence provided by the opposing party. A motion to dismiss has taken the place of the common law demurrer in most modern civil practices. When a court dismisses a case, many laymen say the case has been „dismissed.“ To better understand what is considered a „true question of fact“, consider the following example: In a traffic accident, it may be relevant whether an intersection light was red or green.
Whether the light is red or green would be a matter of fact. One witness may say that the light was red, and another witness may say that it was green. The decision as to who to believe is made by an investigator (judge/jury) at the main hearing. An application for summary judgment must therefore be dismissed so that this fact can be established at the main hearing. Alternatively, if both parties agree that the traffic light was of the same colour, then this fact is no longer disputed and is therefore not a genuine question of material fact. If there is no real question of fact on the merits, the court can rule on an application for summary judgment because the courts have jurisdiction to interpret questions of pure law. Therefore, if a case concerns only legal issues and not questions of fact, a trial becomes superfluous. An entire case may be decided on an application for summary judgment if the application covers all the issues of the case in question. Requests for disclosure relate to the necessary exchange of information between the parties.
In the common law system, such requests reflect an irreducible tension in the legal system between the right to disclosure and the obligation to disclose information to third parties. Applications are not pleadings, but requests to the judge to render a judicial decision. Here are some of the most common pre-trial requests: There are many practical differences between investigative expectations and practices in civil and criminal proceedings. Local rules in many courts clarify expectations about civil investigations, in part because they are often misunderstood or misused as part of a litigation strategy. As a result, the civil disclosure rules relate to discretionary disclosure practices, and much of the arguments in this regard focus on properly defining the scope of the parties` claims. Since prosecutions generally involve a well-defined constitutional guarantee, discovery in criminal matters focuses much more on the principles of automatic disclosure that, in the event of a violation, trigger the dismissal of charges. Created by FindLaw`s team of writers and legal writers| Last updated: 20. June 2016 A „nolle prosequin application“ („no prosecution“) is a request by a prosecutor or other complainant to drop charges. n. Latin for „we do not want to prosecute“, which is a statement made to the judge by a prosecutor in a criminal proceeding (or by a plaintiff in a civil case) before or during the trial, meaning that the charges against the accused are dropped. The statement is an admission that the prosecution cannot be proven, that the evidence has proven innocence or a fatal flaw in the prosecutor`s request, or that the district attorney is satisfied that the accused is innocent.
It must be distinguished from the application for a judgment of non prosequitur or judgment of non-pros, which in some jurisdictions (e.g., Pennsylvania) is a request by a defendant for a judgment in his or her favor because the plaintiff did not pursue his claim in time. [4] In the case of an application without a hearing, the Tribunal makes a decision solely on the basis of written submissions to the Tribunal (factums or pleadings, in legal language) and any supporting affidavits, documents and/or other evidence submitted up to that time.
