January 24, 2019 view from the bench

The Key to Winning at Summary Judgment: Know Your Burden

Know the legal burdens at play: the burden of proof, the burden of production, and the burden of persuasion

By Hon. Karen L. Stevenson

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.

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