Your case has reached the summary judgment stage. Your team is focused on marshaling legal precedents and admissible evidence—deposition testimony, authenticated documents, affidavits of key witnesses, discovery responses, and, of course, evidentiary objections to the opposing party’s evidence. It is no small task. Too often, though, I see counsel overlook an essential part of summary judgment preparation: clearly understanding the client’s legal burden and carefully reviewing the evidence to make sure that burden is met.
Rule 56 of the Federal Rules of Civil Procedure provides that a party may move for summary judgment on a claim or defense—or part of a claim or defense—where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Whether your client is moving or opposing the motion, mastery of the factual record is not enough. To persuade the court that no genuine issue of disputed material fact exists or, alternatively, to establish that factual disputes do exist that preclude summary judgment, you must understand not just your evidence and arguments, but the legal burdens at play: the burden of proof, the burden of production, and the burden of persuasion.
The “burden of proof” refers to a party’s duty at trial to produce evidence that will prove its claims. In civil cases, meeting the burden of proof typically requires only a preponderance of the evidence. Clear and convincing evidence is required in some circumstances. In criminal cases, of course, the prosecution has the burden to establish a defendant’s guilt beyond a reasonable doubt.
The “burden of production” refers to the burden of producing evidence or showing the absence of evidence.
The “burden of persuasion” refers to a party’s obligation to convince the fact finder to view the facts in a way favorable to that party. At trial, while a plaintiff always has the ultimate burden of proving its claims, either party can have the ultimate burden of persuasion on particular issues.
Moving or Nonmoving Party?
A moving party that does not bear the ultimate burden of persuasion at trial has both the initial burden of production and the ultimate burden of persuasion on the motion. This is usually the defendant, but not always. A moving party can meet its burden of production in two ways: either produce evidence affirmatively negating an essential element of the nonmoving party’s claim or defense, or demonstrate that the nonmoving party does not have sufficient evidence of an essential element to meet its burden of persuasion at trial.
Of the two methods, the first—producing affirmative evidence to negate the nonmoving party’s claim or defense—is usually easier. Indeed, when a moving party relies on evidence of an absence of conduct or events to win the day, there is a serious risk the court may conclude that the movant has not carried its initial burden of production.
If a moving party does not satisfy its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party has the ultimate burden of persuasion at trial.
Failure to Meet Initial Burden, Premature Motions
It is especially important for the moving party to meet its initial burden of production. Failing to do so relieves the nonmoving party of any burden to respond, and the court can deny the summary motion as facially deficient. If a moving party does not satisfy its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party has the ultimate burden of persuasion at trial. That’s right: The nonmoving party can defeat the motion for summary judgment without producing anything at all.
If a moving party does meet its initial burden of production, then the burden shifts to the nonmoving party to produce evidence to support its claim or defense. If the nonmoving party fails to meet its burden of production to create a genuine issue of material fact, then the moving party wins.
When a moving party without the ultimate burden of persuasion at trial tries to meet its initial burden of production by showing that the nonmoving party does not have enough evidence to bear its ultimate burden of persuasion at trial, the timing of the summary judgment motion can become a factor. The moving party has to have made reasonable efforts to use discovery to determine whether the nonmoving party has enough evidence to support its claims at trial or not.
For its part, the nonmoving party has to have had adequate opportunity to conduct discovery. If not, Rule 56(d) provides that summary judgment can be denied or the hearing on the motion continued to allow the nonmoving party a chance to take full discovery. So if your client wants to move for summary judgment on the basis that the opponent has no evidence to support the claims, don’t jump the gun. Summary judgment motions are typically filed near or just after the close of discovery to avoid having the motion denied as premature or the hearing continued while the nonmoving party gets to complete any discovery needed to gather evidence it needs to demonstrate that it can meet its burden of persuasion at trial and defeat the motion.
Burdens Make or Break Your Summary Judgment Motion
Two cases illustrate how these burdens have practical, not just theoretical, significance. In Nick’s Garage, Inc. v. Progressive Casualty Insurance Co., the U.S. Court of Appeals for the Second Circuit reversed a district court’s grant of summary judgment in favor of the insurer, finding “facial inadequacy” in the insurer’s moving papers. In that case, the plaintiff automobile shop alleged that the insurer breached its contractual obligation to pay amounts sufficient to return damaged vehicles to pre-accident conditions.
The Second Circuit held that the insurer’s mere assertions that the plaintiff had not produced any evidence to support its claim “misperceive the allocation of burdens upon a motion for summary judgment.” The court noted that “when a defendant moves for summary judgment, it is the defendant who must show entitlement to judgment, notwithstanding that, at trial, the plaintiff will have the burden of proving every element of its claim.”
In Nissan Fire & Marine Insurance Co., Ltd. v. Fritz Companies, Inc., the U.S. Court of Appeals for the Ninth Circuit highlights the problem of conflating the burden of production on summary judgment with the burden of persuasion at trial. That lawsuit involved a shipper’s claims to recover for goods damaged in shipment. The defendant freight forwarder moved for summary judgment arguing that the shipper failed to give notice of the claim within the required seven-day period.
The district court found the freight forwarder failed to meet its initial burden of production to establish that the shipper’s notice was untimely because language in an affidavit offered by the freight forwarder did not match the precise notice language in the contract. Still, the district court granted the freight forwarder’s summary judgment motion on the basis that the nonmoving shipper had the ultimate burden of persuasion at trial on the issue of timely notice. The Ninth Circuit reversed, finding the “district court confused plaintiff’s obligation at trial and plaintiffs’ obligation as a nonmoving party at summary judgment.”
Filing a motion for summary judgment is a pivotal point in a lawsuit. Whether you are the moving or nonmoving party, knowing what your client’s burden is in the summary judgment process is critical. If you pay close attention to what burden applies as you assemble your summary judgment evidence, that will ensure you present your summary judgment arguments in the most effective and persuasive manner.
Hon. Karen L. Stevenson is an associate editor for Litigation News.
- Fed. R. Civ. P. 56.
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
- Celotex Corp v. Catrett, 477 U.S. 317 (1986).
- Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107 (2nd Cir. 2017).
- Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos, Inc., 210 F.3d 1099 (9th Cir. 2000).
Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).