Delegating on a Deadline: Opposing Summary Judgment Motions

My last post discussed making a motion for summary judgment. Now let’s imagine you’re on the receiving end of that motion. You have to review the evidence and frame a response, fast. How to proceed? Remember the standard of review favors the non-movant, and the non-movant is you. The court must view the facts in your client’s favor. Movants often forget this, and devote pages of their briefs to their own evidence, leaving little space for what the court really wants to see: non-movant’s (your) evidence. Summary judgment is all about questions of fact, and you’ll want to show the court all the facts supporting your claims. The best time to prepare the facts supporting your opposition brief to a summary judgment motion is, of course, during discovery; as you gather documents and depose witnesses, you should organize documents and transcripts in a file and keep track of which evidence establishes which elements. When the movant’s brief comes in, review its supporting evidence carefully and identify everything that favors you. Now marshal your supporting evidence, and use it to write a detailed fact statement setting out your case. If the fact statement is twice as long as the legal argument, that’s okay: just get your version of the facts squarely before the court. Opposing summary judgment is a make-or-break moment in a case. It can be time consuming, and if a motion comes in while you’re in trial or have other critical work, there may not be much time to marshal the evidence and present it in its best light. This can be a great opportunity to delegate—an associate or freelance attorney can help you review the evidence and prepare the opposing brief and supporting materials. Cases survive summary judgment where there are clear factual disputes for a jury to resolve. Marshaling the facts will put your case’s best...

Minnesota Appeals – A Few Key Questions

Think you may be heading for an appeal in one of your cases? Here are a few things to think about: First, check that all errors have been preserved. If you are the appellant, you want to assess error-preservation as you proceed in the case. And for sure, at the post-trial motion stage, which will be your last chance to raise certain issues. If you are the respondent, you’ll be looking at the question from the opposite standpoint. Can you block any issues from being raised because the errors have not been properly preserved? Do you know whether you have an appealable decision? The Minnesota rules of appellate procedure say that only some orders and some judgments are appealable. In addition, Minnesota caselaw makes certain other decisions appealable. If you are the appellant, you will pinpoint the appealable orders or judgments. And if you’re the respondent, you may be able to see that the decision appealed from is not in fact the appealable type, or that it’s not appealable as a final decision. Do you know what’s within the scope of review? Once you have an appealable decision (an order or judgment), you need to assess what can be addressed through the appeal. Some of what comes before the appealable decision may also be reviewable through the appeal. Appellate rules and caselaw govern this. Do you know what the standard of review is? That is the standard the Court will use in assessing the issue raised. You need to figure out what kind of question is being raised, and then what the applicable standard is. The standard is simple for some cases. For example, questions of law are reviewed de novo and that seems straightforward enough. Many decisions are reviewed with an abuse of discretion standard. It is usually clear when a decision is reviewable with the abuse of...

MFAN Members Present CLE for MoreLaw Minneapolis

On May 7, 2014, MFAN members Karin Ciano, Emerald Gratz, and Lynn Walters presented a CLE for MoreLaw Minneapolis entitled “Working Productively (and Ethically) with Freelance Attorneys.” The lunch hour CLE addressed how freelance attorneys can help solo and small firm attorneys who need help managing their workloads but are not ready or interested in hiring permanent help. Karin, Emerald, and Lynn presented information on what type of work can be done by a freelance attorney, when to call for help from a freelance attorney, and how to set up a working relationship with a freelance attorney. Overall, the CLE was a success and attendees were engaged by an informative and interesting dialogue. MFAN thanks Kimberly Hanlon and MoreLaw Minneapolis for the invitation and great conversation! Effective September 10, 2014, Emerald has accepted a position with the Minnesota Office of Administrative Hearings and is no longer working as a freelance attorney. You can reach her at emerald_gratz@hotmail.com. MFAN Bio | Email | LinkedIn | Google Plus | MFAN...

Delegating on a Deadline: Summary Judgment Motions

Compared to a motion to dismiss under Rule 12, you have acres of time to bring a summary judgment motion under Fed. R. Civ. P. 56. The court will allow several months for fact and expert discovery, and only after discovery concludes will a summary judgment motion be due. The federal summary judgment standard has been with us since the mid-1980s, and its contours are familiar to judges and practitioners. Simply put, it’s about whether an issue for trial exists: does a jury have to decide between competing versions of the facts? If the case turns on a question of law for the court, such as the interpretation of a contract, there’s nothing for a jury to do. The best time to prepare for a motion for summary judgment is during discovery. Know the elements of all claims and defenses, and ask about them. Use depositions to pin down which witnesses can establish which elements. Keep track of what’s missing, and consider using requests for admissions to clarify the factual basis for particular elements. The court will look at the facts in the light most favorable to your opponent, and so should you. Read through the other side’s testimony and documents, and ask: what evidence supports this claim or defense? Where the other side’s support is thin or nonexistent, there may be grounds for summary judgment. A common mistake for zealous advocates is to lose sight of the evidence from the other side’s perspective. Remember, a successful summary judgment motion isn’t about whether you believe the other side’s witnesses, but whether a reasonable jury might. This is a great opportunity to delegate. Consider asking someone not involved with discovery, such as an associate or freelance attorney, to review the evidence with fresh eyes. Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal...

MFAN Member Participates on Panel at MWL Solo/Small Firm Group Meeting

On May 2, 2014, MFAN member Emerald Gratz participated as part of a panel presentation on practice management for the Minnesota Women Lawyers Solo/Small Firm affinity group monthly meeting. Other panelists included a virtual assistant, a representative from MoreLaw Minneapolis, two career service representatives from local law schools to discuss hiring law clerks, and two MWL Solo/Small Firm affinity group members. The panel was organized to provide information on assistance options for MWL members who are solo practitioners or small firm attorneys. As a panel member, Emerald provided basic information on the work of freelance attorneys, and answered several questions about freelance work. The 90-minute panel presentation was well-received by members of the MWL Solo/Small Firm affinity group, including a wide variety of questions to panelists as well as a willingness to share personal experiences. MFAN thanks MWL Solo/Small Firm affinity group leader Mary Szondy for the invitation to join the panel! Effective September 10, 2014, Emerald has accepted a position with the Minnesota Office of Administrative Hearings and is no longer working as a freelance attorney. You can reach her at emerald_gratz@hotmail.com. MFAN Bio | Email | LinkedIn | Google Plus | MFAN...

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