What are the benefits to a party who makes a Motion for Summary Judgment? What is the diffrerence between an Affidavit and...
Full Question:
What are the benefits to a party who makes a Motion for Summary Judgment?
What is the diffrerence between an Affidavit and a Deposition?
07/09/2007 |
Category: Civil Actions |
State: New York |
#7014
Answer:
A complaint is a general statement of the plaintiff=s claim. The complaint must describe the actions that led to the claim of a violation (i.e., violation of rights). The claim can be for money damages. It could also be a claim for equitable remedies like specific performance (e.g., court forcing a party to abide by a contract) or an injunction (e.g., stopping a person from doing something).
In the answer, the defendant tells his side of the story. He is supposed to admit facts that are true and deny allegations that are not true. This answer must be filed within a certain period of time which is usually stated on the summons. Failure to file an answer can result in a default judgment against the defendant. This is a judgment for failure to defend that is entered against the defendant just like there had been a trial. Motions are formal requests for the court to take some sort of action. The pleadings generally will consist of the complaint, the answer, any counterclaim, and all motions. A motion for summary judgment is appropriate in situations where there are no important facts in dispute and the only dispute is how the law should be applied to the facts. If there is no dispute over the important facts of the case, there is nothing for a jury to determine since that is their job, to decide what the facts are based on the evidence presented at trial. The judge will therefore apply the law to the facts and render a judgment. That will be the end of the case unless there is an appeal. Generally, this motion is not made unless all discovery has been completed. Depositions are statements of the parties or potential witnesses taken under oath by a court reporter. Depositions are usually taken by a private court reporter (i.e., one not employed by a court) in the office of one of the lawyers. Depositions are used to pin down the testimony of witnesses and to find out what witnesses are going to say at trial. An affidavit is a formal sworn statement of fact, signed by the person giving or making the affidavit (who is called the affiant or deponent) and witnessed by someone legally authorized to take oaths, such as a notary public. The word Affidavit comes from a Latin word meaning for he has declared upon oath. An affidavit must be in writing and be sworn to or affirmed before some legally authorized officer. Statutes of various jurisdictions ordinarily prescribe various formal requirements for the affidavits. These requirements may be just proper form or may be essential as to the legal effect of the affidavit. The formal requirements of an affidavit usually are: 1) The identification of the place where the affidavit was taken (i.e., the venue); 2) The signature of the affiant or declarant (i.e., the person giving the affidavit); and 3) The certificate evidencing the fact that the affidavit was properly made before a duly authorized officer (i.e. the jurat), which includes the proper authentication by the authorized officer. It is essential to the validity of an affidavit that it be sworn to, or affirmed before, a notary public or some other officer authorized to administer oaths or affirmations. This may be done by having the officer administer the oath to the affiant or by having the affiant affirm to the officer, with the officer's consent, the truth of the matters contained in the affidavit. It is also essential that the affiant be identified as to name, residence and, where appropriate or required by law, as to status or capacity. This is ordinarily done in the introductory paragraph to the affidavit. In most jurisdictions, an affiant can be guilty of the crime of perjury for making a statement under oath that he/she knows is not true. In the absence of statutory regulation, generally, anyone who has knowledge of the facts and is competent to testify may make an affidavit. The affiant must swear to the affidavit, and fact of his swearing must be certified by a proper officer such as a notary public. Most states have statutes that name the officials authorized to take oaths. For example, one state’s laws provide that, in addition to notary public:“All justice court judges and clerks, clerks of the circuit and chancery courts and assistant secretaries of state are notaries public by virtue of their office, and shall possess all the powers and discharge all the duties belonging to the office of notary public, and may authenticate all their acts, instruments and attestations by the common seal of office; and all acts done by them of a notarial character shall receive the same credit and legal effect as are attached to the acts of notaries public.” An affidavit is ordinarily not admissible to prove facts in issue at an evidentiary hearing, because it is not subject to cross examination and would constitute inadmissible hearsay. Even in rare instances in which an affidavit is acceptable as a substitute for testimony, it must be based on personal knowledge, must set forth only facts admissible in evidence, and must show that the affiant is competent to testify to the matters contained in the affidavit.