Motion for Summary Judgment
Many civil cases result in a summary judgment. A summary judgment is a court order ruling that a trial is not necessary because no factual issues remain to be tried. Either party, plaintiff or defendant, may motion for summary judgment. The motioning party declares that all factual issues are either settled or so one-sided that they need not be tried.
The opposing party must then argue that triable issues of facts remain to be settled in order to take the case to trial. Summary judgment will only be granted to causes of action for which the court finds to unquestionably lack any triable issue of fact. Issues for which there is any doubt will go to trial.
Is a motion for summary judgment a good thing?
Either a defendant or a plaintiff can request a summary judgment through a motion for summary judgment. Although a summary judgment is a favorable result for the motioning party, it can be detrimental for the opponent. For example, if the other party that you are suing files for a summary judgment, this may prevent you from having your story heard in court. Luckily, a summary judgment can be appealed by the opponent in situations like this.
Denial of a summary judgment
Pursuing a motion for summary judgment is not risk-free. If the motion is denied, the non-motioning party may be able to increase the settlement amount that they are asking for. This helps prevent either party from wasting the court’s time be requesting a summary judgment when the evidence does not support this type of ruling.
Using good judgment before seeking summary judgment
For the defense bar, a motion for summary judgment can be an incredibly effective litigation tool. The successful motion puts an immediate end to a matter before trial, can limit the issues in dispute, or can provoke more reasonable settlement discussions. The motion unclogs dockets and saves litigants and courts time, effort, and money. But statistics suggest that MSJ’s are rarely granted and are often expensive to prepare. So defense practitioners should be asking themselves: is this the appropriate case to file a motion? The following tips may help in your analysis.
The client should be involved in the process of considering whether to file a motion for summary judgment. While there is no explicit ethical duty to obtain client consent before pursuing a dispositive motion, there is a duty to keep the client informed and to allow the client to make informed decisions. With these duties in mind, it is important to recognize that filing a motion may not always make sense.
There is some evidence to suggest that judges are generally reluctant to grant summary judgment motions. Indeed, summary judgment is a drastic remedy, as it precludes litigants from the presenting claims to a fact-finder. One of the more recent studies on the subject found that motion for summary judgments were granted more often in civil rights cases, and concluded that contract and tort cases had uniformly low summary judgment rates, with a likelihood of success of less than 10%. By contrast, at least one study found that summary judgment is granted in the majority of Title VII actions, such as those involving equal pay and employment discrimination.
Further, if utilized carelessly, a motion for summary judgment, as a “trial on paper”, can give your opponent an early view of your case, theories, and strategy. Also, if the motion is unsuccessful, your adversary may become emboldened by the court’s “quasi approval” of the case, thus increasing her settlement demands.
Because each case – the facts, parties, budget, counsel, forum, and judge – is unique, you cannot predict whether you will prevail on summary judgment. Nevertheless, planning and careful thought about a MSJ even in the nascent stages of a case will increase your chances of success and an informed client. Below are some tips to consider before filing a motion for summary judgment:
- Think early. Have the motion in mind early and throughout the litigation. Identify those issues that are likely to be the focus of the motion for summary judgment, become familiar with the case law and statutory provisions that will govern those issues, and then frame discovery requests and deposition strategy with those standards in mind. Use such discovery to build the record needed to support the motion.
- Think often. Deciding whether to file a motion is a process that you should re-visit throughout the litigation. Ask yourself: “Should we win?’ and “Can we win?” If there is a slim chance of success, you may want to hold off on filing to avoid “tipping your hand” to your opponent.
- Consider the client. Review all of the pros and cons with the client. Be honest about your chances of success. Remember, the preparation of a motion for summary judgment often involves a great deal of time and fees. However, if you believe you have a reasonable chance of success, explain that the expense of a trial may dwarf the cost of preparing the motion. Your client may view this as worth the time and effort.
- Consider the judge. Look for ways to gauge the judge’s interest. If you are lucky, the judge will indicate her views regarding the prospects for summary judgment if she has enough information about the case.
- Consider your opponent. An unsuccessful summary judgment bid may increase your adversary’s confidence and have an undesirable effect on her settlement position. Further, deciding not to file the motion may deprive opposing counsel of the ability to use the pending motion as leverage with an unrealistic client, needlessly protracting the litigation.
Arguments for a motion for summary judgment being a good thing
- You don’t want to always ask “what if?”
What if I’d appealed that motion for summary judgment? You don’t want to forever ask yourself this question. If you’re a plaintiff, and you feel you have a viable claim, or if as a defendant you have at least one supportable affirmative defense, you might be able to win on appeal. To give yourself the best chance, learn about the requirements for summary judgment in your jurisdiction. When you see it filed against you, work through the fear. Read the statutes, find supporting cases, and make short work of that case killing a motion for summary judgment. It’s easier than you think to defeat.
- Pro Se Litigants Give Up When They Should Fight
A motion for summary judgment should be a gamble, but it’s not. When used against an unprepared pro se litigant, it’s often a winner for the opponent. It’s one of those legal filings that strikes terror in the hearts of pro se litigants–at least those who know what it means. Too many either don’t know what to do to defeat it or simply give up because the task of defeating it seems too daunting. That’s why lawyers threaten pro se litigants with it and file it regularly. Summary judgment is hard to get. Don’t let your opponent frighten you into giving up on your case.
- One can throw out a net and see what you get
You can defeat the grant of motion of summary judgment by presenting a multi-pronged attack. Don’t rely on just lack of discovery (evidence), lack of particularity, or failure to strike affirmative defenses. If you can, point to other weaknesses in your opponent’s motion. Do statutes and cases support their argument? Look it up. There are hundreds, maybe even thousands of appellate cases in every jurisdiction. Are there important motions yet to be heard, like the motion to compel or the motion to strike the affidavit in support of the summary judgment? If so, argue this in your brief. Throw out a net and see what you get.
- Your opponent has not struck your affirmative defenses
If you’re a defendant and asserted affirmative defenses, the plaintiff must strike them all before properly lodging a motion of summery judgment. In his motion, he must show that he struck your affirmative defenses or that the affirmative defenses are not viable. If he has not done this, rely heavily on it in your appeal. Chances are, appellate judges will agree with you.
- Grants of motion for summary judgment are often overturned
Courts don’t like to allow a motion for summary judgment. Appellate courts consider summary judgments to be drastic. “This drastic remedy should not be granted where there is any doubt as to the existence of [triable] issues.” Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] This is not just true for this one court or opinion. It’s true across the country. A motion for summary judgment against you means you have no case or no defense whatsoever. This is rarely the case. In an appeal, the judges must review all the evidence in the light most favorable to you, not the person that filed the motion. So, an appellate court will reverse a summary judgment if any kind of a case is shown. In fact, the court must “accept as true the facts” contained in your response and other filings and make all “the reasonable inferences that can be drawn” from them.
- Discovery is not over upon filing a motion for summary judgment
Are you done with discovery upon considering a motion for summary judgment? In an ideal world, the summary judgment motion is filed after discovery has ended or during a lull in discovery. However, where a pro se litigant is involved, a lawyer may take a gamble and move for summary judgment in the middle of discovery. By doing this, she can quickly end the case. But consider this? How can your opponent meet the requirements in point 10 above without discovery? Discovery could raise disputed facts that are material. Without “facts” and “evidence”, the lack of a genuine issue of material facts is difficult to prove. That’s a great argument to assert on appeal.
- Lawyers motion for summary judgment as a scare tactic
One of the biggest bullying tactics lawyers employ against pro se litigants is the threat of filing a motion for summary judgment. If you’re a plaintiff, and the lawyer wasn’t able to have the case dismissed, that means you have a case and summary judgment is not warranted. If you’re a defendant and the other side has not stricken all of your affirmative defenses or you’ve made it to discovery, chances are motion for summary judgment will be very weak. The problem is that pro se litigants are often so intimidated by the notion itself that they fold easily. Plaintiffs take settlements that do not adequately compensate them for harm done. Defendants pay or agree to pay more than is warranted just to avoid summary judgment. That’s why lawyers move for summary judgment. But you didn’t come to play, so don’t let this tactic work. Appeal an ill-advised grant a motion for summary judgment.
- A grant of a motion for summary judgment is (should be) difficult
Yes, you hear about it all the time. A judge granted a motion for summary judgment against someone you know. But if you have a legitimate claim or defense, a summary judgment should be difficult to get against you. Unfortunately, that doesn’t stop biased judges from granting them anyway in favor of a lawyer against a pro se litigant. In that case, do your homework and make a beeline to the appellate court.
- Preservation of error is not as much of a thing
In so many matters, pro se litigants lose on appeal because they have not preserved an issue. That is, they don’t make an objection at a hearing or at trial. They fail to bring a court reporter to record the judge’s findings, or they do not raise other issues during litigation. So, an issue is considered waived and often can’t be appealed. However, summary judgment is a final order. If you respond properly to the motion and /or show up for the hearing with a court reporter and a fairly decent argument, errors the judge made in granting summary judgment are preserved.
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