Delegating on a Deadline: Opposing Summary Judgment Motions

Summary Judgment Red PenMy 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 foot forward, and help the court see that there is work for a jury to do.

Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal judges; a legal writing teacher at NYU Law, William Mitchell College of Law, and the University of Minnesota Law School; and a sole practitioner and freelancer in Minnesota… MFAN Bio | Email | Web | LinkedIn | Google Plus | MFAN Posts

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