Motion for summary judgment

A motion for summary judgment is among the most significant motions that can bring a civil case to an abrupt end. Owing to its potential effect on a case, it is important that parties know how it works. Legally, a motion for summary judgment is written as a request for the court to make a decision that is linked to a case. For instance, a motion for summary judgment could be used to ask the court to prevent some evidence from being considered at trial. A motion for summary judgment may also be used to request the court to transfer the case to another court.

What is the Purpose of Motion for  Summary Judgment?

Lawsuits generally go to trial because the parties disagree about the facts of a case. But what if the important facts of a case aren’t disputed? A motion for summary judgment is a request made by a party asking the court to decide all or part of a lawsuit without going to trial because there’s no dispute about the key facts of the case. The party making the motion for summary judgment (called the “movant”) can be the plaintiff or the defendant. Either way, the movant must prove two things to be successful. These include that there are no material facts that can be reasonably disputed, and in light of the undisputed facts, the movant is entitled to judgment under the applicable law.

Moreover, a summary judgment is a decision made based on statements and evidence without going to trial. It’s a final decision by a judge and is designed to resolve a lawsuit before going to court. One party in a case is entitled to judgment by the law, and summary judgment is used in cases where there’s no dispute about the facts.

Examples of a summary judgment

XXX are in a car accident. XXX says that XXX ran a red light and caused the crash. XXX happens to have a video of XXX running the red light and crashing into him. John’s attorney files a motion for summary judgment claiming that:

• There are no material facts that can be reasonably disputed. In other words, Linda can’t produce any evidence that raises any doubt that she ran the red light and caused the accident.
• In light of the undisputed facts, XXX is entitled to judgment under the applicable law. In other words, because Linda ran the red light and caused the accident, she’s liable under the law of negligence.

Based on the preceding example, a judge could grant John a motion for summary judgment. Resultantly, there would be no need of litigating the issue of liability. The parties may still need to litigate on the issue of damages, that is the amount that XXX owes XXX. Another twist to the facts of the story could also be adopted. For instance, ZXX and XXX are in a car accident. XXX argues that Linda ran a red light and caused the accident, but John doesn’t have a video. He does have a statement from a witness who says they saw XXX run the red light. JXXX attorney files a motion for summary judgment. Linda’s attorney responds to the motion by producing a statement from a different witness saying that the witness saw XXX stop at the red light. In the preceding example, the judge would deny John’s motion for summary judgment since there is a disputed material fact. That is whether XXX ran the red light and caused the accident. The cause would thus normally proceed to trial.

How to start a motion for summary judgement

The movant must file their motion for summary judgment with the court by a specific date. Depending on the state, this deadline is set forth in the case scheduling order (an order signed by the court listing various deadlines) or the local rules of civil procedure.

Contents of a motion of summary judgment include the motion which is a written request for the court to rule in the favor of the movant. The second part is a memorandum which supports the motion. It explains why the court should rule in favor of the movant.

Response to a motion for summary judgment

The non-moving party always has an opportunity to respond to the motion for summary judgment. This is called a “response” or an “opposition motion.” The non-moving party only has a certain amount of time to file a response. This amount of time varies by state, but is usually around 21 days. Like the original motion, the non-moving party’s response typically consists of two parts. These include the motion which entails a written request for the court to rule in the non-moving party’s favor. The second is a memorandum that explains why the court should rule in the non-moving party’s favor.

In responding to a motion for summary judgment, the non-moving party must do 1 of 2 things:

• Show that there’s a disputed fact (this can be done by producing evidence), or
• Accept that there are no disputed facts, but dispute the movant’s recitation of the law.

If the non-moving party doesn’t believe they’ve had enough time to uncover the facts of the case, the party can ask the court for a “continuance” to permit additional discovery. The court has a great deal of discretion in determining whether to grant such a request.

The purpose of motion for summary judgment hearing

Once the motion and response has been filed, the judge will read both and then preside over a hearing. At the hearing, each party will be given a certain amount of time to reiterate their argument in front of the judge. The judge may ask some questions and at the end of the hearing the judge will grant or deny the motion. Sometimes the judge will require additional time to make a decision and the parties will be notified days or weeks later.

A hearing on a motion for summary judgment doesn’t involve oral testimony. Because of this, some lawyers don’t bother taking their clients to the hearing. Other lawyers like to take their clients. The decision usually depends on the lawyer, the client, and the nature of the case. A motion for summary judgment can be a very effective tool when used properly. But, it also requires a lot of time and money in order to draft the documents and participate in the hearing. An experienced attorney will be able to tell you if a motion for summary judgment is appropriate in your case.

Other aspects of a motion for summary judgment

Frequently, during the litigation process one or both of the parties involved will attempt to use a procedural device known as the motion for summary judgment to dismiss certain issues from the case. As the name implies, the motion for summary judgment is a motion filed by one of the parties seeking to obtain a judgment on all or part of the case in a summary fashion. An issue or case which is decided by summary judgment is not allowed to be presented to a judge or jury at trial. In other words, the motion for summary judgment is a method to decide an issue (or the whole case), without the need for a trial.

The legal standard imposed by most jurisdictions requires that in order for a summary judgment to be granted by the court, the party moving for summary judgment must demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” What this means in laymen’s terms is that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue. For instance, most jurisdictions require the plaintiff in a medical malpractice lawsuit to produce an expert physician witness who will testify that the defendant doctor committed malpractice in his treatment of the plaintiff.

Practice points to consider in a motion for summary judgment

There are several additional, practical factors we would advise you to think about in relation to a summary judgment application. These can be summarized in the final set of bullet points:

1. If you want to avoid your case being allocated to a particular track prior to a summary judgment hearing (except in the Commercial or Technology & Construction Court where allocation to the multi-track is automatic), you should lodge the application before completing the Directions Questionnaire (DQ). State in the DQ that the application for summary judgment is lodged and request that allocation does not take place prior to the hearing.
2. Ensure that you comply with any relevant pre-action protocol, otherwise a judge may refuse to consider an application before a defence has been filed (or the time for doing so has expired).
3. Be concise when you’re preparing the evidence in support of your application. There is little point in trying to second guess what the other side will say in response: you will have an opportunity to reply to whatever they ultimately raise.
4. Bear in mind that a summary judgment application should not be used as a ‘mini trial’ of issues. Remember, it’s not a procedure designed when complex legal or factual issues are involved, and there must not be real and genuine issues of fact that ought to be resolved at a trial.
5. If you are the defendant in the proceedings, check whether there are any documents or facts known which might provide you with a complete or partial defense to the claim and which are disclosable at trial stage. In this scenario, the claimant should not be making an application for summary judgment.
6. Consider whether summary judgment is actually the most appropriate remedy or whether an alternative – such as applying to have a claim or defense struck out – should be used.

Happenings and purpose of a motion of summary judgment hearing

A summary judgment hearing is not a trial. The judge will not swear in witnesses or take evidence that day. The judge may let the parties or their attorneys speak and may ask questions. The entire hearing usually takes less than 30 minutes. The judge will read the paperwork in the file and will make a decision. The judge may make a decision that day or may make it later.

1. For Claimant. A party seeking to recover upon a claim, counterclaim, or cross claim, or to obtain a declaratory judgment may, after the expiration of the period within which the defendant is required to appear, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof.
2. For Defending Party. A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment in such party’s favor as to all or any part thereof.
3. Motion and Proceedings. The motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served not later than 28 calendar days before the The adverse party may file and serve opposing affidavits, memoranda of law or other documentation not later than 11 calendar days before the hearing. The moving party may file and serve any rebuttal documents not later than 5 calendar days prior to the hearing. If the date for filing either the response or rebuttal falls on a Saturday, Sunday, or legal holiday, then it shall be filed and served not later than the next day nearer the hearing which is neither a Saturday, Sunday, or legal holiday. Summary judgment motions shall be heard more than 14 calendar days before the date set for trial unless leave of court is granted to allow otherwise. Confirmation of the hearing may be required by local rules. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
4. Case Not Fully Adjudicated on Motion. If on motion under the rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
5. Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not re

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