Litigation 101: Checklists for New Litigators
Your First Motion for the Summary Judgment from the Court's Perspective
By Tracy Catapano-Fox
In some cases, you may find that a summary judgment motion is appropriate. A summary judgment motion asks the court to find that your case has no issues of fact in dispute and therefore the court can make a ruling as a matter of law. Depending on which party makes the motion, summary judgment can result in relieving plaintiff of his or her burden to prove liability or damages, or can result in dismissing the case in defendant’s favor. As the stakes are so high, these motions require time, thought and preparation. The following are some tips for young practitioners to help prepare a successful summary judgment motion.
- Review applicable statutes, rules of procedure and local rules. Before preparing a motion for summary judgment, review the authority permitting the motion. For example, Federal Rule of Civil Procedure 56 sets forth basic procedures. State courts likewise have their own procedures. Remember to review the local rules of court as well. In addition, consider reviewing the court’s general rules on motion practice. These rules often set forth the types of papers necessary to support the motion.
- Review the Complaint and determine the specific causes of action. For a successful summary judgment motion, the movant must demonstrate that there are no issues of fact in dispute with regard to the causes of action asserted in the complaint. You must determine what the causes of action are and the legal requirements to prove them. A good method to start this process is to take a blank sheet of paper, divide it in half and write all causes of action and claims on one side, listing the elements of each claim as you review the complaint.
- Write down all facts that support or disprove each cause of action. By reviewing the facts in your case, you can determine whether there is any genuine dispute over each claim/cause of action. Write these facts on the opposite half of the page, across from the relevant cause of action or claim.
- Critically review the propriety of summary judgment. Review all of the information you listed on the page to confirm that there are no genuine issues of fact in dispute. Be discerning- look it over as if you were the opponent. If there are any genuinely disputed issues remaining, a summary judgment motion may not be proper.
- Determine what evidence is needed in support of the summary judgment motion. Review all documents, deposition transcripts, photographs or other documentary evidence that supports your arguments. Determine which items correlate to each fact and/or element of a claim listed in your notes. You may need to prepare affidavits for your client, if necessary, to fill in holes. See Fed.R.Civ.P. 56(e).
- Research and review case law relevant to your issue. You will find many appellate cases regarding summary judgment motions, so you should be able to find cases with similar legal issues or factual contexts. Be sure to review all cases addressing your issues, whether they support your arguments or oppose them, as it is crucial to be aware of the state of the law in your jurisdiction.
- Outline a brief in support of your motion. Your brief in support of the motion is your opportunity to explain why summary judgment should be granted. Address all causes of action and claims in the complaint and use the undisputed facts to support your arguments.
- Review your brief and use case law to support your motion. Inclusion of case law is essential to a successful summary judgment motion, as courts rely heavily on precedent in making their determinations. Accurately cite all cases used, as the court may check on cases while reviewing the motion. Emphasize analogous facts when citing cases that support your arguments and use your facts to distinguish case law that opposes your position.
- Get an affidavit of merit from your client. Some courts require an affidavit from someone with personal knowledge of the facts in support of your motion. Check the local rules. If an affidavit of merit is required, have your client (or the affiant) review your brief and evidence to confirm that the facts are accurately presented. Other courts simply require that supporting evidence be admissible under the rules of evidence. You may need to submit deposition excerpts or affidavits that establish the admissibility of any documents upon which your motion relies. See Fed.R.Civ.P. 56.
- Attach all evidence used to support your motion as exhibits. This is a crucial step that is often overlooked by attorneys, who routinely delegate this portion of the motion to assistants or paralegals. The court will rely heavily on your exhibits to support the arguments you make, so make sure that each exhibit is properly referenced in your brief. Make sure the exhibits are presented in their entirety, so as not to look as though you are hiding information from the court or your opposition. Include exhibit tabs that are clearly visible for easy reference for the court.
- Be cognizant of the particular practices of the judge. Most attorneys know that each jurisdiction has its own civil procedure rules, but few realize that each judge may have his or her own rules. These are sometimes called “part rules” or “local-local rules.” These rules vary from courtroom to courtroom but can make a significant difference in the outcome of your motion. Make sure your motion is noticed in accordance with these rules and if you are uncertain, contact the clerk’s office to confirm the applicable rules, including filing fees, and the like.
By following the above pointers, you will be better prepared to make a summary judgment motion.