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The Trial on Paper: Key Considerations for Determining Whether to File a Summary Judgment Motion

By Michele L. Maryott

Winning may come in many different forms, but for the litigator, the most exhilarating win comes at trial. Recounting how you dismantled the opposition’s key witness on cross-examination, or sharing your brilliant argument that sealed victory for your client, makes for considerably more scintillating cocktail party banter than the story about the amazing summary judgment motion you wrote, argued, and won.  But despite its lack of sexiness, the summary judgment motion is a critical weapon in the litigator’s arsenal.

“Should we win?” and “can we win?” are two critical questions to ask yourself about each claim on which you intend to bring a motion. While these questions are not litmus tests, answering either question in the affirmative means you should probably bring the motion unless there is some compelling reason not to do so. If the truthful answer to either question is no, you should think long and hard about why before you file a summary judgment motion. For example, if the answer to “can we win?” is no because there is a material fact in dispute, you will be taking a big risk if you file the motion. If the answer to “should we win?” is no because the judge would be going way out on a limb to rule in your favor, again, think long and hard. However, if the answer is no because you believe your judge never grants a summary judgment, you might not let that stop you if you believe you have a strong case. You may be pleasantly surprised with a victory.

The answer to “Can we win?” may change throughout the litigation process. You may think based on early witness interviews that you will have strong arguments on summary judgment, only to have a key witness go sideways under oath and crush your hopes of winning summary judgment. If this happens to the opposition, you may find yourself with an opportunity to prevail that may not have existed before.

The upside of summary judgment—winning—is obvious and exciting, but don’t overlook the downside. One of the major drawbacks of a summary judgment motion is that you will telegraph, most likely in a way you have not before, the facts and witnesses that you believe are most important and, to some extent, how you will present your case at trial. After all, a summary judgment motion is a trial on paper. It should have all the hallmarks of a good trial presentation: a clear theme that grabs the reader’s attention, a persuasive story, and, most importantly, a clear analysis of the facts and the law that demonstrates why it should be granted. If you do this, your motion may provide your opponent with insight that may otherwise be lacking and thus create a disadvantage for you. If you think there is but a slim chance you will prevail on summary judgment, you may not want to tip your hand.

You also should consider the effect that your loss of an ill-fated summary judgment motion may have on your opponent’s confidence in her own case. That is, if your adversary has repeatedly told you that her client can “get past summary judgment” and has taken unreasonable positions in settlement negotiations, and you think it is unlikely you will prevail on summary judgment but have a reasonable basis to file the motion and are doing so to create leverage or draw out your opponent’s evidence, a loss on summary judgment may bolster your opponent and have an undesirable effect on his or her settlement position. On the other hand, if your opponent is expecting you to file a summary judgment motion and you do not (perhaps because your resources are better spent getting ready for trial), this may leave your opponent slightly confused. Deciding not to file a motion may also deprive opposing counsel of the ability to use a pending motion as leverage with an unrealistic client so, again, do your best to understand your opponent and the dynamics on the other side of the table when making these decisions.

Another obvious downside to filing a summary judgment motion is the considerable time and expense involved with preparing the motion. However, if you believe you have a reasonable chance of prevailing and your strategy requires you to do so, the expense of a trial will dwarf the cost of preparing the summary judgment motion, and hence will be viewed by your client as well worth the time and effort.

Sometimes, decisions about whether to file summary judgment are influenced by perceptions regarding the judge hearing the case. Look for ways to gauge the judge’s interest. If you are lucky, the judge will signal her views regarding the prospects for summary judgment if she knows enough about the case. In a recent case, the judge all but told the other side, on several occasions, not to bother filing a summary judgment motion. They filed it anyway, but the judge never ruled on it. In another case, a federal court judge told us and our opponents to file cross-motions for summary judgment.

You should tell your story as persuasively as possible in the summary judgment motion. There is a difference between material facts, which must be undisputed to win, and storytelling facts, which are not essential to winning but will help tell your client’s story in a compelling way. Be sure you know and understand the difference. If you are practicing in a jurisdiction that requires a separate statement of undisputed material facts, be sure to include only the material facts in the statement. In some cases, the material facts set forth in a separate statement may be worded precisely the same way as some of the facts you set forth in the motion, but they need not be identical. For example, you may describe the plaintiff’s agent in the motion by including information about his title, job duties, and interactions with other witnesses because it helps you tell the story, but the material fact might be “Joe Smith worked at XYZ Corporation in the R&D Department in 2007.”

Do not be over-inclusive or argumentative when setting out your material facts. This can spell doom for your motion. In California, for example, by including a fact in the separate statement of undisputed material facts, you are admitting that the fact is material. If the other side contradicts it, you cannot later argue that the fact is not really material. In a recent case, our opponent filed a motion for partial summary judgment on a significant issue. There had been a substantial amount of discovery, and while the facts were relatively straightforward, the ultimate issue was not so straightforward. Our opponent filed a separate statement, as required under California law, which included 368 material facts. Most of these material facts were storytelling facts and not actually material to the issues. Many of them were undisputed, but plenty of them were disputed, and all we needed to defeat the motion was to establish a dispute as to a single one of those 368 “material” facts. Be sure to distinguish between truly material facts and the storytelling facts, and leave the storytelling facts for the motion itself.

Although your summary judgment motion may be the most important thing you have going on at the moment, without question, that is not the case for your judge. Making life easier for the judge may sound like obvious advice, but I have seen many summary judgment motions and oppositions that overlook this very simple, yet important, concept. Consider ways that you can lessen the burden on the judge and her staff. One way may be to submit an appendix or index of exhibits if you have an extensive evidentiary submission. You may also consider preparing binders for the judge (in addition to your properly formatted filing) that make it easier for the judge to work with the materials. If you have a technologically savvy judge, you might submit a CD containing the motion papers and supporting evidence, with hyperlinks from the motion and supporting papers to the evidence.

Also, if you are required to submit a separate statement, and the other side submits an opposing statement, consider submitting a response to the opposing statement with your reply. This may not be required, but it will help you to focus your arguments on reply and will make the judge’s life easier.

We have all heard the saying: If the facts are not on your side, argue the law; if the law is not on your side, argue the facts. But be careful. It would be quite embarrassing to have a judge call you out on the authorities you cite and the propositions for which you cite them, and tell you that the cases just do not say what you claim they say. I have seen this happen to an opponent, and it is not pretty being on the receiving end of that kind of public display of disappointment. Such an event should be avoided at all costs. If you do not demonstrate intellectual honesty at all times to the court, you will lose your credibility and do a disservice to your client and yourself.

The unique circumstances of every case—the facts, the witnesses, the law, the forum, the specific judge, and the attorneys—make it impossible to predict whether you will win or lose on summary judgment. We have all seen motions that we thought would be granted end up being denied (and vice versa). Even though the most careful planning will never guarantee victory, put your best foot forward in the planning process to increase your chances of prevailing. And keep in mind that deciding whether to file a summary judgment motion is a process that you should re-visit throughout the litigation. Winning summary judgment may keep you from displaying your brilliance at trial, but your client will be better off for it. Providing that kind of value to your client is the reward, even if it leaves you without a good story to tell at cocktail parties.

Michele L. Maryott is with Gibson, Dunn & Crutcher LLP in Irvine, California.

This article was excerpted from a longer one that appeared in LITIGATION, Volume 35, Number 3, Spring 2009 at page 36.



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