Summary Judgment

Summary judgment often saves time and money.

Often lawyers recommend filing a motion for summary judgment, which terminates the lawsuit in favor of the client -- or a motion for partial summary judgment, which can narrow the scope of the lawsuit and thus save time and money for everyone. 

If certain facts are not in dispute, the Judge may apply the law applicable to those facts and rule as to who wins.  The filing of a motion for summary forces the opposing party to present his best case, along with supporting evidence.  Summary judgment “is the put up or shut up moment in a lawsuit when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Industry, Inc., 325 F.3d 892, 901 (7th Cir. 2003).

For example, perhaps a plaintiff (the person who files the lawsuit) has a legimate complaint against a defendant (the person who has been sued) -- but the lawsuit was not filed on a timely basis.  There is a "statute of limitations" for most claims, a time within which it must be filed.  If the statute of limitations has run, the plaintiff's claim cannot succeed.  The fact that the suit was filed too late is brought to the court's attention through a motion for summary judgment.

The reason for the summary judgment procedure is that the trier of fact (usually a jury, and sometimes a judge) has nothing to try when the facts are not in dispute.  As noted in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Id. at 1356.

In writing briefs to support a summary judgment motion, the parties must attach evidence, usually documents, transcripts of deposition testimony, or affidavits.  That's why lawyers like to serve discovery requests and ask the other party to produce documents or appear for a deposition -- so that the evidence can be discovered before trial.  In summary judgment proceedings, “conclusory allegations will not suffice to create a genuine issue” requiring trial. Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). The party opposing summary judgment “cannot ‘escape summary judgment merely by vaguely asserting the existing of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.’ ” Westernworld Insurance Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.1990), citing and quoting Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989).

Another interesting aspect of the summary judgment process is that witnesses cannot offer to the court an affidavit that contradicts their prior deposition testimony, in order to defeat a motion for summary judgment.  Where an affidavit attempts to create a sham fact issue by contradicting sworn deposition testimony, it may be properly disregarded by the court for summary judgment purposes. Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995); Wiley v. Brown, 164 F.R.D. 547 (D. Kan. 1996) (Plaintiff is not permitted to virtually rewrite portions of a deposition, particularly after defendant has filed a summary judgment motion.); Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir.1999)(a subsequent affidavit may not be used to contradict the witness’s deposition).  In Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 980 P.2d 116, the Oklahoma Supreme Court affirmed the trial court’s ruling which precluded a witness from testifying at trial since the testimony at trial was materially different than that offered in deposition. As a result of the change, the opposing party was deprived of any meaningful way to probe the basis of the opinion.

Summary judgment is an important tool in the litigator's arsenal.  A lawsuit should be prosecuted or defended in such a way as to shorten the amount of time and effort required to finish it.  Finishing it early through an order where the court grants summary judgment to our client is always our primary goal.  Cutting the scope of the lawsuit by obtaining a partial summary judgment, where a full summary judgment cannot be obtained, is also beneficial in many cases.  Where neither is successful, you have still accomplished an important goal of exposing any weaknesses in a case or defense, which can contribute to a favorable settlement.  At the very least, the research can be used in trial briefs, jury instructions, and other motions.

Summary judgment should always be considered as part of an overall litigation strategy.