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.
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