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In this lesson, you will learn about summary judgment, tactics to follow if you’ve received a motion from the opposing party, and how to create a motion if you’re the serving party.
SUMMARY JUDGMENT – A motion for summary judgment asks a court to rule that a party has no case because there are no genuine issues in dispute and the movant is entitled to judgment.
The motion for summary judgment becomes a factor during the middle of the case.
- Patricia hired Cecil to do roofing repairs.
- Cecil completed the job, but 4 months later, Patricia’s roof leaked.
- After being unable to reach Cecil about the leak, Patricia sued him.
- During discovery, Cecil’s attorney moved to summary judgment.
What can Patricia do?
She can oppose the summary judgment. Two main points Patricia should make in her opposition is that discovery is incomplete and there were still relevant issues in dispute. She can also poke holes in Cecil’s affirmative defenses.
The moving party can
- Find evidence for your facts.
- Show that undisputed facts require movement from you.
- Show that disputed facts are immaterial.
- File when discovery is paused.
- Make affidavits admissible.
- Plaintiff should strike all affirmative defenses.
The opposing party can
- Review the motion and identify missing facts.
- Assert that facts are in dispute or evidence is inadmissible.
- Keep your discovery going.
- Defendants should argue the plaintiff’s failure to strike affirmative defenses.
Transcript
A motion for summary judgment asked the court to roll that the other party has no case because there are no genuine issues in dispute, and the law says the moving party should win the case based on those undisputed facts.
Now either party can move for summary judgment. A motion for summary judgment relies on substantive laws.
And substantive laws tell us what our rights are and how to behave. They deal with the actual merits of a case.
When you\’re arguing for summary judgment, a common assertion is this.
There are no genuine issues of material fact, and the movement is entitled to summary judgment as a matter of law.
That is the general standard for summary judgment.
What that means is that all the pertinent facts are in favor of the moving party, the person who filed a motion.
A motion for summary judgment results in one of two outcomes.
There can be a denial of the motion, in which case, the case goes to trial, or there could be judgment for the moving party and an end to the case.
The case ends when the judge grants summary judgment. There\’s no with or without prejudice here. It is over.
Well, when does this happen? The motion for summary judgment becomes a factor during the middle of a case.
And that can be very lengthy, in the middle of a case as each party handles discovery and evidence issues and other pretrial matters.
Let\’s take an example.
Patricia hired Cecil to patch a section of her roof that was leaking.
He gave her an estimated four weeks to complete the work with his crew.
Patricia agreed, and CECel and his crew set to work, and finish the job within the estimated four week period of time.
Please with the job, Patricia paid CECL.
Three weeks later, there was a light rain in the city. Luckily, there was no problem with the roof. Patricia was glad because in previous rains, the roof had leaked.
But then three months later, during a heavier rain, the roof leaked.
Now it wasn\’t as bad as it had been before, but any leak was a problem.
Patricia tried to reach CECL by phone and email but he was unavailable.
She left him numerous voice messages.
After not being able to reach him for some time, she filed a lawsuit against CECL.
Cecil hired an attorney, and the attorney moved to dismiss the claim. But that got them nowhere. That motion to dismiss was denied.
Then the attorney answered Patricia\’s complaint with numerous affirmative defenses.
Discovery began as each party shot off requests for production, request for admissions, interrogatories.
Patricia was awaiting the return of her request for interrogatories and production.
When CECel\’s lawyer suddenly moved for summary judgment, arguing that an affirmative defense they had lodged had already been proven with the evidence they\’d collected, and there was no dispute on those facts.
Patricia, he said, had signed off on the job and had missed a deadline by which to inform CECL of any problems.
Well, what can Patricia do?
She has only one choice here, and that is to oppose the motion for summary judgment. If she doesn\’t, she\’ll lose the case.
Well, she has two major arguments.
First, she\’s not done with her discovery. There\’s still evidence to be collected.
Also, she can create a dispute on CECL\’s so called undisputed facts.
In general, summary judgment is difficult to get. As it should be, summary judgment ends a case. So the movement must have all the facts on his or her side.
CECL must show that there is no issue of genuine dispute for a trial on the merits to be worthwhile.
Let\’s step back and talk about getting summary judgment and opposing summary judgment.
If you are the moving party, you want to find supporting evidence for every fact you are asserting.
You will move for summary judgment when discovery is over or at a pause.
That means if your opponent has sent you some discovery.
Well, you want to file your motion on the same day you respond to that discovery. That suggests to the court that discovery is over.
If you\’re the plaintiff moving for summary judgment, you wanna be sure that you have struck or are able to strike all of the defendant\’s affirmative defenses.
Essentially, you need to show that the undisputed facts require judgment for you.
That means that you\’ve got to do legal research to show that the law requires judgment for you under the undisputed facts in your case.
If there are disputed facts, you will need to show that those facts are immaterial. That they don\’t matter.
Generally, you will file an affidavit from you or a witness, to the events. In support of your motion for summary judgment. You want to ensure that all affidavits in support of summary judgment have been made by a person who directly witnessed the events they are describing.
No hearsay.
Now if you are the non moving party, opposing summary judgment, review the motion and identify the undisputed facts, You want to specify any missing facts that is facts you believe are relevant to the motion, but that are not listed in the motion.
Your job is to assert that there are facts in dispute or that evidence supporting the so called undisputed facts would be inadmissible in a trial by jury.
You also want to challenge the admissibility of any affidavits filed in support of the motion for summary judgment.
If your case involves a specific amount, that is claimed, you want to challenge the amount. Even a penny off will create a disputed fact.
Try to keep the discovery going.
Even if you\’ve already filed all of your discovery and you\’ve received a responses to it, file something new to give yourself additional time. That often suggests to the court that the evidence period, has not completed. If there\’s still evidence to be found, And judges would prefer to wait until all of the evidence is collected before ruling on a summary judgment motion.
Now if you\’re a defendant and the plaintiff has not struck each of your affirmative defenses, you can use that fact to oppose the motion for summary judgment.
That\’s a good reason to file as many affirmative defenses as you can when you are defended in a case. Gives you the opportunity to slow down or stall any motion for summary judgment.
Back to our example, Patricia\’s goal is to defeat CECL\’s motion for summary judgment.
Now this motion is filed in the middle of the case. Patricia has already survived a motion to dismiss her claim. She\’s taken all of the courses at courtroom five.
She\’s stored some helpful legal research in her courtroom five laws tool that she can draw on. Patricia begins with the task tool and writes down the due date for her response to CECL\’s motion.
Next, she uses the evidence tool where she has stored lots of evidence collected from CECL through the dis discovery period.
She uses this evidence to identify any disputes on the facts of the case.
Based on the evidence she\’s collected, she notes that she\’s not done with discovery because Seesol hasn\’t fully responded to her request for production of documents.
This she believes will support her opposition to the motion.
But she also uses the documents tool and the motion for summary judgment response template.
She names her document plaintiff\’s opposition to motion for summary judgment. We want to keep our titles simple.
Whichicia copies and past pertinent parts from her stored evidence into the body of their document.
She uses the laws tool to find statutes and appellate cases to support her response.
And she finds appellate cases that hold a party can\’t get summary judgment when there are issues in dispute, when there are facts in dispute.
Well, the contract she had with CECL said nothing at all about a specific date by which she had to inform him of any changes.
Instead, it simply said she was to inform him of additional repairs.
But when she called CECL, he was unavailable.
To her, that\’s a factual dispute.
Patricia stores are appellate cases and statutes and later uses them in drafting her response.
After filing her response, Patricia attends the hearing on the motion for summary judgment set by Cecil\’s attorney.
Patricia is able to persuade the judge to deny Cecil\’s motion, and the judge signs her proposed order.
Patricia\’s case is going to trial.