Can You Write a Summary Judgment Motion by the End of the Week?

Vol. 17 No. 3

By

Karen Libertiny Ludden is a commercial litigation attorney at Maddin, Hauser, Wartell, Roth & Heller, P.C. in Southfield, Michigan.

You are finally a lawyer! You have the business cards and name plaque to prove it. And you knew one day you would receive the request—the Monday morning “request” from the managing partner: “Can you write a summary judgment motion by Friday?” “Of course,” you chirp and then stagger back to your office with four red rope folders and a sudden headache. Here is your time to shine, but will you? How do you write a dispositive motion on an unfamiliar case in such a short time? Do you follow the partner’s advice to read only “the stuff in folder 3,” or do you read it all? What about billable time? Will a client pay for you to slog through the whole file? Where should you cut corners?

First, stop looking to cut corners. You are a new attorney. You cannot cut corners because at this stage in your career, you don’t know what is important and what is not. The only way you are going to learn to identify a “corner” is to gain experience in your field of law. Yes, your time will be cut. No, a client will not pay for you to read the whole file. Do it anyway. Stay late. Learn your trade.

Second, while you should read the whole file, you are still working with a ticking clock, and no one can pull all-nighters for a week and produce good work product. So read the state or federal rule on dispositive motions that applies to your case and then read the file in the following order: (1) the complaint and answer; (2) all of the status reports to the client written by the managing partner; and (3) the records/evidence. The court rules will tell you what you have to prove to win your motion. The complaint will tell you what the plaintiff is alleging, and the answer will give you clues as to your best defenses. The status reports will tell you what the managing partner thinks are your best defenses, and perhaps will cite you some case law to get started. The records or admissible evidence in the case will give you the building blocks for your motion.

Third, do your legal research. Do not try to cut and paste someone else’s brief. You may use someone else’s brief to direct you to the area of law you are researching, but never cut and paste someone else’s brief. You will never learn the law that way, and that brief might be obsolete, based on a subtly different fact scenario, or just badly researched. Read all the cases. Do not skim. Confirm that they are still good law. Research until you trace your way back to the most recent state supreme court opinion (if you are in state court) or the circuit court of appeals opinion for your jurisdiction (if you are in federal court). That should give you the proper legal standard. Then try to find more recent lower court decisions that are as factually similar to your case as possible, even if they are unpublished. Attach the best cases as exhibits to your brief, unless prohibited by the court.

Fourth, write your motion. Ensure that your introduction is no more than two-thirds of a page, no matter how complex the case. You will rewrite the introduction a few times. Just frame your issue this first time through. Next, write your facts section, in chronological order. There are very few occasions when you will not be served by starting at the beginning and moving through to the end. If an event in the middle of the chronology is more important than one in the beginning, spend more time on it, but start with the first relevant event in the sequence and continue from there. Then state the applicable legal standards succinctly. Courts usually require this anyway, and it will help you to keep organized with your writing. Now break your argument down into each of the elements of the applicable legal standards, with each one receiving a separate heading that reads like a sentence. Generally, more headings are better than less, but don’t overdo it. Make sure you have supporting citations for every one of those elements. Now go back and check your introduction. Did you prove what you set out to prove? Did you cover every one of the elements? Is your introduction too wordy or boring? Now is the time to fix it.

Last, give the draft brief to the managing partner at least a day before it is due, even longer, if possible. Yes, it cuts away from your time to prepare, but if you have left something out, that time will be crucial to create a good, finished product. Don’t forget to read the corrections when they come back; they are what will take you to the next level in your career.

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