Tips of winning a motion for summary judgment

1. Begin early

Expert lawyering requires preparation, discipline and aggression, and that’s especially true at the

summary judgment stage, which should be on attorneys’ minds from the very first day of a case if they expect to win it. Some lawyers have stated that there are some cases where there are slight chances of winning. However, there is a possibility of winning a motion for summary judgment.

A lawyer should make their own probabilities means mastering the record from the outset. To win a motion for summary judgment, a lawyer should adopt some mechanisms. Such include planning one’s depositions, conducting discovery and expert witnesses with an eye toward meeting the strict standard of summary judgment and having the discipline to focus solely on the issues that matter most to winning your case.

Moreover, the standard aspect to be achieved in a motion for summary judgment is that there is no genuine issue as to any material fact. Therefore, ‘material’ falls into planning and ‘genuine issue’ falls into discipline. In order to successfully plan for and get to motion for summary judgment stage and ultimately get the result you want. To secure a win in a motion for summary judgment, one has to plan for it from the beginning of the case.

2. Play offense

Attorneys should take a reactive approach to cases, allowing their adversaries to build the record and develop legal theories before preparing a relevant defense in the motion for summary judgment.  However, such kind of reactive approach is a recipe for disaster. It is especially crippling for winning a motion for summary judgment because so much of convincing a judge to forego a trial requires developing overwhelming evidence favorable to your side. One has to say to yourself from the beginning of the case: Okay, what are the elements of the causes of action here? And what can I do to say these critical elements are not and cannot be made out? One also needs to understand what’s material to the claims or defenses in the case.

Further, to win a motion for summary judgment, one needs to know that from day one, because only then can you make sure that the facts you need are in the record. An offensive approach to motion for summary judgment requires diligent discovery planning. Moreover, to win a motion for summary judgment, it helps to have the facts in one’s favor, but a lot of that depends on what your discovery plan is and how one goes about developing that discovery.

Moreover, the diligence and offensive approach in surviving a motion for summary judgment includes taking important depositions. Advocates should also take key depositions early enough.  This is because when one takes a deposition early and catch a witness or a counsel in a position where they’re not really focused on what the critical points are going to be and you may get some very key admissions in an early deposition that’s going to help you on a motion for summary judgment. Indeed, gaining key admissions early can help a person side even when those admissions are not enough to win the motion for summary judgment.

3. Heed by the jury’s instructions

Anticipating the questions that the jury will confront in your case is an excellent strategy to survive a motion for summary judgment. The preceding can be backed by the majority of legal experts told. Jury instructions also focus on the most essential unresolved matters in a litigation and developing evidence and building arguments to resolve those questions before they reach a jury is essential to penning a persuasive summary judgment brief.

Furthermore, before an attorney prepares a motion for summary judgment, they should look at the jury instructions. This is to make sure that one knows the elements are to each of the claims and defenses and that there are no material facts in dispute as to each of those elements. Because if you can’t knock out all of the elements, then you’re not going to survive a motion for summary judgment.

Jury instructions highlight the main issues of the case and building a record to bolster your side’s take on those issues should be your primary purpose. Jury instructions are the last thing that happens in a case, but they should be the first thing you’re thinking of in order to survive a motion for summary judgment. Hence one should think from the very onset of the jury instructions. This because the they form the basis of the ultimate tier of facts and one’s decision of whether to grant the motion for summary judgment. A party has to internalize that from the beginning and say, “I know that’s the target I’m aiming at in building the record.”

4. Simplify the argument

Effective briefing and oral argument require great discipline. While you’re trying to win on all claims in motion for summary judgment, you can increase your chances of success by narrowly tailoring the issues to focus on the most essential elements of your case. Keep the motion focused and simple. Sometimes people feel like they need to institute a motion for summary judgment on everything or use summary judgment as a way to tell their story, and I think the

opposite approach is a better recipe for success. Keep the motion very focused on a simple element of the claims that is weak as a defendant or, on the plaintiffs’ side, on the key element where you think you can really win.

Moreover, a narrowly tailored separate statement of facts or summary of undisputed facts can make your brief far more persuasive to a skeptical judge. The very first thing that judges look at when presented with a motion for summary judgment is the separate statement of undisputed facts. If they can identify a single fact in the separate statement that’s going to cause them heartache, their job is done.

The goal has to be to proffer only those facts that are absolutely essential to your motion and not be lulled into the thinking that you’re going to overpower the judge with a number of facts that are undisputed. The main aspect that a party has to prove to succeed in a motion for summary judgment is quality not quantity. One should also keep it simple. This should be one’s mantra for oral argument as well.

The briefing is also absolutely critical to frame the issue for the court. But that having been said, one must in the oral argument resist the temptation to address everything the other side says and to answer every point.

Bonus tip: keep your opponent guessing

If you think your chances of succeeding a motion for summary judgment, or even partial summary judgment, are slim, it may be wise to forego the motion altogether. Doing so will keep your adversary guessing on your final trial strategy. You have to feel that you have more than a 50 percent chance of prevailing on the motion for summary judgment. Because the last thing you want to do is prepare the motion and marshal all the evidence to simply give it to the other side right close to trial, so that you’re giving the other side a road map.

And if you think a trial is inevitable, you should think twice before aiming to gut your adversary’s weak claims via a partial motion for summary judgment. Those claims might serve you well before a jury. Most lawyers assert that they want to have bad claims in there so they can get up and point out to the jury that these claims are meritless. Thereafter they can state that, and say that not just these specific claims, actually they are all without merit and you paint it with a broad brush. Why make the case easier for opposing counsel?

Odds of winning a motion for summary judgment

A summary judgment happens once all the facts are known to the parties but before the actual trial. The judge reviews all the facts presented in the motion for summary judgment and determines it’s impossible for one of the parties involved to win the case. The judge has to view the facts favorably to the non-moving party. If the judge doesn’t see a way for that party to win the case, they grant them the summary judgment, and the case is thrown out. That’s why lawyers avoid summary judgment. A lawyer has to do all the work and prepare for the trial, but the trial potentially never happens.

However, there is evidence that shows judges don’t grant many summary judgment motions. One study showed that summary judgment motions are granted more often in civil rights cases. On the other hand, tort and contract law have low rates of successful summary judgments. The chance of success in these cases is less than 10%. Another study found that summary judgment is mostly granted in Title VII cases, for example, cases involving equal pay or employment discrimination. When it comes to federal cases, summary judgments are filed in 17% of total cases. 71% of summary judgment motions were filed by defendants and 26% by plaintiffs. Out of all of these, 36% were denied, and 64% were granted, either whole or in part.

Other tips of surviving a motion for summary judgment

1. Early preparation — You should start preparing for a summary judgment early in the case and throughout the litigation. Focus on the issues that are most likely to be the focus of the motion, study the case law, and prepare the discovery requests and deposition strategy with these issues in mind. Use the discovery process to build the evidence that’ll support your motion.
2. Keeping in mind the summary judgment motion throughout the case — Consider if you should file an MSJ throughout the litigation. Think about would you win with the evidence you have. If you think the chance of success is low, it’s better to hold off on filing the motion.

• The client — Sit down with your client and go through all the pros and cons. Be honest about the chances of winning the MSJ and about the fees involved in preparing the motion.

1. The opponent — If you aren’t successful in getting a summary judgment motion, the opponent may gain confidence and not want to settle.
2. The judge — Try to gauge the judge’s interest. Some judges will show they are in favor of granting summary judgment if they are given enough information about the case.
3. Prepare on time — Expert lawyers know that good case preparation requires a lot of prep and discipline, especially at the summary judgment stage. Plan the depositions, discovery, and expert witnesses, and keep the summary judgment rules in mind. Always focus on the issues that are most likely to win your case.

• Don’t wait for the opponent to build the case — Winning a summary judgment is about convincing the judge to forego a trial. This requires having overwhelming evidence that’s in your favor. Take all the key depositions early in the case, so you can catch a witness or counsel in a position where they aren’t focused, so you can get key admissions early on.
• Think about the jury — A great way to build a winning summary judgment strategy is to anticipate the jury’s questions in your case. The jury usually focuses on important unresolved matters. Getting evidence or building arguments to resolve these matters can help you make a persuasive summary judgment memorandum. If you think about jury instructions, you’ll know your target and how to build a record.

1. Don’t overcomplicate — Your oral arguments and written briefs should be effective, to the point, and based on a factual basis. Narrow down the issues to focus on the most important elements of motion for summary judgment. The motion for summary judgment shouldn’t resemble a story, but it should be focused on the essential elements of the claim. Or, if you’re on the opposing side, focus on the weak elements where you think you can win. This is especially useful if you have a skeptical judge. Tailor your statement to facts, and make them persuasive.
2. If you’re the defendant — In case you’re the defendant in the case, look for documents or facts that can provide you with complete or partial defense. If any of these are disclosable at the trial stage, the claimant can’t make a summary judgment application.

References

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