Summary judgment comes into play in civil lawsuits. A judge can enter summary judgment for a party if the party shows that there is no genuine issue of material fact and they are entitled to judgment on the claim(s) as a matter of law. It can be asked for in both state cases pursuant to the relevant state rule of civil procedure and federal cases pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Summary judgment can be entered as to the entire lawsuit, causing the court to dismiss the case. A judge may also choose to grant partial summary judgment for only specific counts of the lawsuit. Many civil complaints have more than one count.

For example, a lawsuit for negligence may also contain a count of wilful and wanton conduct as well, depending on the situation. Partial summary judgment may also be entered only on certain elements of a claim. For instance, in a personal injury lawsuit a judge may order that while a defendant is undoubtedly liable for the accident, there is still a question of fact about the extent of damages that plaintiff suffered.

Asking for summary judgment should not be confused with filing a motion to dismiss a case. Motions to dismiss are generally asked for at the beginning of a lawsuit because the defendant does not believe that a legal claim has been plead in the complaint.

There are other bases to bring a motion to dismiss, however, failure to state a claim is a very common one. When asking for summary judgment, the party concedes that there is a valid and legal claim present, but disputes that there is an issue as to who should win the case based on the evidence obtained through discovery.

How is Summary Judgment Obtained?

First, in order to obtain summary judgment a party needs to file a motion for summary judgment with the court. This is usually required shortly after the court closes discovery. However, you will need to check your state and local laws to determine the specific deadline to file a motion for summary judgment. A court will sometimes extend the deadline as well if you file a motion for extension.

The moving party, the party that requested the summary judgment, will need to file a brief that explains their reasoning along with their motion. The brief will include any relevant case law or statutes supporting their arguments why summary judgment is appropriate. It will also need to include reference to any relevant evidence or testimony in the case.

Second, after a party files their motion and brief, the other party will generally get to file a response brief arguing against summary judgment. The response will need to show that there is a triable issue of fact that should go before the jury because an issue exists.

For example, if there are several eye witness accounts to a car accident that dispute how the accident occurred, the responding party could argue that summary judgment is inappropriate because there is an issue about who caused the accident.

Third, the moving party will usually get to file a reply brief that disputes any points made by the opposing party in their response. The judge can then allow a hearing where the parties can argue their cases live in court and the judge can have them elaborate on certain points that are unclear in the briefs or that they are on the fence about.

As you can imagine, this process can take quite a while and basically puts the lawsuit on hold until the motion is decided. Oftentimes the parties may try to settle the case before the judge makes a decision. Common reasons for this is:

  1. The client does not want to spend the time and money arguing against summary judgment; and
  2. One party makes a relevant point in their brief that heightens their chance of winning the motion.

Finally, after all of the above occurs, the judge must decide the merits of the motion. If the judge agrees with the moving party, he will dismiss the claim(s) relevant to the motion. As stated above, this could potentially get rid of the entire case. If the motion is denied, then the case will proceed to trial and the jury will need to decide any conflicting issues of fact.

Should I Have an Attorney Draft my Motion for Summary Judgment?

Motions for summary judgment require a lot of research and an analysis of the relevant law. They also require the party to apply the facts of the case to the law and make complex arguments before the presiding judge.

Although parties can chose to represent themselves pro se, it is unlikely that they would be familiar with the legal tools needed to draft and argue a motion for summary judgment. Hiring an attorney near you to help you with your case, including drafting a motion for summary judgment, would give you the best chance of success.

An attorney can also analyze the facts that came out in discovery and determine if it is worth it to even file a motion for summary judgment. Based on the law and specific facts, if there is a low chance for success the attorney will advise against doing so in order to save costs.