Limit the Scope of the Motion
Before you go for the grand slam—that is, judgment for liability and damages—objectively evaluate your case and your prospects for success. Courts are incredibly busy; their judicial clerks are incredibly busy. If you file a summary judgment motion with supporting materials approaching the size of the Oxford English Dictionary, your chances of success are small. Be pragmatic. Go for summary judgment on the claims for which you know have the greatest possibility of success. Do not distract the court with claims and theories that cannot be supported with unimpeachable legal authority and truly undisputed factual support.
So, Rule No. 1: Avoid the “kitchen sink” approach.
Know Your Court
Before you ever put pen to paper, you must check the local rules of the jurisdiction where you intend to file the motion. Failure to do so can be fatal.
For example, Rule 56.1 of the Local Rules of the U.S. District Court for the Northern District of Illinois has very detailed provisions on how movants must present their statement of material facts on which they claim there is no genuine dispute. The process dictated by the rule requires a separate statement of material facts, responses with citations to supporting materials, and facts limited in number to eighty; the rule warns that “[f]ailure to submit such a statement constitutes grounds for denial of the motion.” L.R. 56.1(a)(3). Complying with the rule is very time consuming, but it lets you set out your “facts” for summary judgment without eating into the fifteen‑page limit of the brief in support of your motion.
Other federal districts, like the Middle District of North Carolina, have different local rules. That district does not require a separate detailed statement of facts. While the rules in that district permit a 20-page memorandum in support, you will need to identify all of your claimed undisputed material facts and all supporting citations within that page limit.
For the same reasons, it is imperative that you determine whether the judge in your case has specific rules or procedures that he or she requires or favors when considering summary judgment motions. Obviously, consider any information regarding case management procedures on the judge’s website; and if the website is unclear or uninformative, call chambers and inquire if the judge has any preferences in summary judgment briefing. Some possible queries include the following:
Is an appendix of supporting materials okay? How should it be bound?
Do I need to attach unpublished decisions or state court decisions to my brief?
Can I file a statement of facts separate from the supporting memorandum?
How should I cite supporting state cases?
So, Rule No. 2: Know your court’s local rules on summary judgment and your judge’s preferences.
Present an Irrefutable Supporting Record
I am not a proponent of the art of the subtle in summary judgment briefs. Regularly, I work on briefs with younger colleagues and review opponents’ briefs to evaluate whether the citations supporting a claimed material fact actually support the fact. What I often find is the labyrinth approach: “Mike Jones stated X in an email, which was then explained in the deposition testimony of Heather Simons, who believed, but was not certain, she told it to the defendant’s CEO.” You get the point. The citation does not exactly support the purported fact, you have to follow a long trail to (hopefully) get there, or you need to infer something.
This approach impairs your credibility with the court. Your supporting citations should unequivocally support the facts that you assert are undisputed. Do not make the trier of fact flip through endless pages of material to get to your point. To be sure you do this, outline your factual argument, add the citations for each material fact, and then have someone in your office review your work product and challenge any ambiguous citations.
So, Rule No. 3: Do not fudge on the facts.
Ensure the Admissibility of the Record
All of you know that materials submitted in support of summary judgment must be admissible in evidence. The cases are legion, and even Federal Rule of Civil Procedure 56(c)(4) requires that an affidavit or declaration submitted in support of a summary judgment motion “set out facts that would be admissible in evidence. . . .” This is not a casual requirement, yet so many summary judgments flounder on its shores.
If you submit an affidavit in support of your motion, you must be sure that it includes all of the necessary material to supply the foundation for the statement in the affidavit. Likewise, when you attach an email to support a particular fact, you need to ensure that it either is not hearsay or is admissible as an exception to the hearsay rule. And to ensure the court agrees that the hearsay exception is applicable, you may need to include additional foundation material in the record. An example is the business judgment rule exception. Fed. R. Civ. P. 803(6). An affiant or declarant cannot attest to an internal company record and just expect the court and opposing counsel to assume that it is admissible as a business record. Rather, the affidavit or declaration must include the factual foundation in subparts (A)–(C) of Federal Rule of Evidence 803(6) to ensure that the corporate record is admissible for summary judgment. It is sloppy and foolish to be casual about the admissibility of the materials that you cite in support of your summary judgment motion.
So, Rule No. 4: Admissibility of evidence really matters.
Consider Optimal Presentation of the Motion
Marshall McLuhan famously said, “The medium is the message.” I agree. Literally, how you physically present your summary judgment motion to the court matters.
For instance, do not use so many acronyms and abbreviations that the judge will need a scorecard to read your brief. Why confuse the trier of fact?
Similarly, identify your key legal theories and key material facts in the very first pages. Summary judgment motions are not suspense novels. The judge needs to know exactly what you want and why as soon as possible.
Also, be sure to make citations in your brief as consistent as possible. If the court allows it, prepare a separate appendix of all the materials you cite in support of a motion, along with a table of contents. Then, in your brief, you can make a factual statement and cite to “Apx. Ex. D” or “Apx. Ex. J, p. 35.” It is clear; it is easy.
Movants should also review pleadings for admissions. This is often overlooked. Numerous allegations in answers and complaints are admitted, yet summary judgment movants do not use these admissions to support their claims. Fairly straightforward facts like the identity and location of parties, jurisdictional and venue prerequisites, individuals’ positions and responsibilities, the execution of key documents, and dates of meetings and key events are routinely admitted in pleadings. Rather than supporting these facts with prolix deposition testimony and additional documents, first review the pleadings to determine if this can be accomplished using straightforward pleadings admissions. Any way to reduce the burden on the court’s review of the record is a smart approach.
In addition, most summary judgment motions are supported by pages of deposition testimony, but many movants cite to only a few lines on each page. And often movants cite to numerous lengthy documents but are just relying on a paragraph or a few lines on certain pages in the document. In either case, when you file your motion, highlight the portions of the deposition pages or documents to make it easier for the court to find what you want it to read. If you file electronically, then provide the court with a complimentary copy of the motion with the highlighted portions. The court will appreciate your effort in this regard.
So, Rule No. 5: Make your motion easy to read.
Obviously, the actual facts and the applicable law in your case are the most important elements of your summary judgment motion. However, paying attention to the foregoing suggestions will serve to focus your presentation to the court and increase the odds of winning your motion.
Eric N. Macey is a partner at Novack and Macey LLP in Chicago, Illinois.