Tips to make a Motion for Summary Judgment Successful
Of all the weapons in a litigator’s arsenal, the motion for summary judgment is one of the most powerful. A motion for summary judgment can be the end of litigation or it can alter the contours and course of the litigation.
Moving for summary judgment can be expensive - both financially and strategically and therefore it is essential to get the basics right before moving forward. Below are a few points to keep in mind before moving for summary judgment:
Keep summary judgment in mind throughout the case:
An attorney should have summary judgment in mind from the outset of litigation. Even if it does not completely resolve the dispute, the court may enter partial summary judgment and thereby narrow the scope of the litigation. This can also pave way to settlement of the dispute. Also, there are certain types of cases that are particularly well suited for summary judgment. For example, claims based on an interpretation of a written contract. Counsel should be well versed on the issues that are likely to be the focus of the motion for summary judgment. Discovery and depositions should then be conducted keeping this focus in mind, to build the record needed to support the motion for summary judgment.
When to file a motion for summary Judgment:
As with every other procedure, timing is a crucial factor in choosing to file a summary judgment motion. Commonly, a motion for summary judgment is filed following the completion of the pleadings stage of the suit or after completion of discovery but within such time as not to delay the trial. However, this is no hard and fast rule and there are cases where an earlier motion may be appropriate. For example, in a complex case, the judge may encourage the parties to file motions as early as possible regarding any claims that might potentially be disposed of by summary judgment.
Ensure that the memorandum supporting the motion provides solid legal support, citing legal authorities as well as record of supporting facts. Identify the issue or issues that really support your position, address those issues clearly, and stick to those issues. Always give the judge a basis for wanting to rule in your favor.
Standards of Summary Judgment:
The procedural rule for summary judgment is provided by Rule 56 Federal Rules of Civil Procedure for federal actions and by counterpart state court rules for state actions. (Some states identify summary judgment by another name, such as summary disposition or other names). While some states’ civil procedure rules closely follow the federal rules of civil procedure when it comes to the summary judgment procedure, others deviate in substantial ways. You should verify and carefully read the rules that apply to your particular case.
Know your Judge:
A particular judge might have his or her own “rules.” Before filing a motion for summary judgment, look up the court’s website to see if your judge provides further instructions or guidance particular to his court. Alternatively, you can call the court clerk and ask if the judge has any particular rules you should be aware of.
Keep the Motion Simple & Brief:
Judges are very busy and appreciate it when you get straight to the point. Always, remember to keep your motion simple and brief. This is not the place to be creative or convince the judge that you are the brightest attorney practicing before the court. The focus should be on convincing the judge that there is no genuine dispute as to any material fact and that your client is entitled to judgment as a matter of law. In other words, your case is one that does not deserve a trial. Put across a clear and straightforward case. Avoid personal attacks and ad hominem arguments.
Partial Summary Judgment:
Keep an open mind with regards to partial summary judgment. The Federal Rules of Civil Procedure permit a motion “for summary judgment on all or part of the claim.” A judge, who is reluctant to grant a motion for full summary judgment, might be more receptive to a motion for partial summary judgment.
Paying attention to the applicable rules and substantive legal principles governing your dispute, as well as the above points will go a long way in making your motion for summary judgment successful.
At Nora.Legal, we understand. Our legal staff is highly trained in drafting of pleadings, briefs, dispositive motions, discovery, appeals, contracts, and jury questionnaires. We love it. We have time for it. And we’re great at it. You can learn more about our services at . Try out a project with us today!