Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one. In some Courts, obtaining a Summary Judgment is difficult, if not impossible. Other Courts love Summary Judgment and use it as a mechanism to reduce case load. This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.
1. Where Summary Judgment Works and Where it Does Not.
There are certain cases which do not lend themselves to Summary Judgment. Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony. Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal. Remember that State and Federal trial Judges have someone looking over their shoulders at all times – - the District Courts of Appeal or the Eleventh Circuit. Accordingly, most Judges carefully scrutinize whether the case at issue is really a Summary Judgment case.
Cases in which you are more likely to receive a Summary Judgment include uncontested foreclosure cases, cases involving the interpretation of a contract which is unambiguous, garden variety business disputes and collection matters. Summary Judgment in these types of cases are more often granted because the Court perceives that the Defendant really has no defense and would not have anything substantive to testify to at trial which would alter the outcome of the Court’s Summary Judgment decision.
Summary Judgment can be granted in these types of cases if a Plaintiff can show that there is no genuine issue of material fact. Summary Judgment should also be granted in a case in which the Plaintiff has not been able to articulate an issue showing that he or she is entitled to relief. In other words, Summary Judgments can be granted in a case in which, after discovery, a Defendant can demonstrate that a Plaintiff cannot prove a state of facts upon which the case can be won.
2. Partial Summary Judgment.
Partial Summary Judgment is a terrific way to narrow the issues before trial. Defense lawyers love to plead affirmative defenses. Some defendants will plead as many as twenty affirmative defenses. Plaintiff’s counsel would be well advised to make an effort to “summary out” some of these affirmative defenses in order to narrow the issues before trial. If you are successful at this, you will be able to streamline your case, eliminate the testimony of otherwise irrelevant witnesses and save your client money. Thus, even if you have a case which cannot be won on Summary Judgment it would be wise to use the Summary Judgment mechanism to narrow the issues and focus the trial.
3. Requirements for Summary Judgment.
There are a few basic requirements that must be met before a Court will grant Summary Judgment. You must be able to submit factual testimony in admissible form. This means that you are required to either submit a client affidavit, a sworn statement or deposition transcript excerpts to support your motion. If you do not provide this type of information, your adversary will be able to legitimately claim that your motion is based on “hearsay.” Thus, the party moving for Summary Judgment must carefully document all of the facts which support the motion. Remember that lawyers cannot testify and what the lawyer says during the Summary Judgment argument is not evidence.
4. Keep it Simple.
One rule of thumb when it comes to Summary Judgment is the thicker the motion the more likely it is to be denied. In order to grant Summary Judgment, the typical trial court judge wants to be able to quickly understand the facts and see that those facts are supported by relevant documents, affidavits or testimony. If the package you submit to the Court, before the Summary Judgment hearing, is three feet thick, there is a greater likelihood that your motion will be denied. Imagine that you are a Judge with 5,000 cases and a lawyer submits to you 2,000 pages of reading material in connection with a Summary Judgment Motion. It would certainly be easier for the Court to simply deny the motion rather than read all that material.
And what is the effect of a denial of Summary Judgment? The impact will be that you will have to either settle the case or go to trial. In most circumstances there is no interlocutory appeal and, accordingly, the trial court’s decision will likely not be reviewed at least for a substantial period of time. Most lawyers and their clients, after losing Summary Judgment, will likely settle and the Court is aware of this. Thus, even if your motion is well taken, after submitting a mountain of paper it is likely that the trial court’s decision to deny the Summary Judgment Motion will not be subject to immediate review.
5. Watch the Deadlines.
In state court practice, the Florida Rules of Civil Procedure have set out a series of deadlines for Summary Judgment practice. Generally, you are required to give the non-moving party at least 25 days notice prior to a hearing on your Motion for Summary Judgment. Fla. R. Civ. P. 1.510. Conversely, the party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax. The lesson here is simple – - you should have a clear understanding of when the hearing on Summary Judgment has been scheduled, regardless of whether you are a moving party or non-moving party, since there are important deadlines which apply to you. If you miss the deadline by having your motion heard prematurely, or by filing your opposition late, you run the risk of losing the motion.
Federal Court deadlines are different and follow the Local Rules which require a briefing scheduling in connection with the filing of the motion, opposition and, ultimately, a reply. U.S.D.C. S.D. Fla. Local Rule 7.1 The Federal Court briefing schedule is, generally, a better and more efficient system which some State Court judges have adopted. Do not be afraid to make this suggestion to a State Court judge after you have filed your Motion for Summary Judgment and file a Motion for a Briefing Schedule. Often the Court will comply with your request, particularly if it is agreed to by opposing counsel.
6. Opposing a Motion for Summary Judgment.
In State Court, it is a relatively simple process to oppose a Motion for Summary Judgment. Usually, all it requires is the filing of an affidavit or some relevant deposition testimony. However, counsel would be well advised to file a memorandum of law in opposition. One time worn tactic for opposing Summary Judgment is actually the reverse of the advice given in this column for filing a Motion for Summary Judgment – - make it as long as possible. Thus, counsel opposing a Motion for Summary Judgment may easily choose to paper the court file with a mountain of papers in opposition. Sometimes the Court sees through this but some Judges make it clear that if the case is too complicated, or intricate, Summary Judgment will not be granted.
Our state court judges sometimes appear reluctant to grant Summary Judgment and will do so in only the clearest of cases. The Federal Courts, however, with their burgeoning dockets and the outside pressure to reduce caseload, appear more willing to summary out non-meritorious claims. While lawyers who are passionate about their work look for opportunities to try cases, the plain fact is that it is likely that there are too many trials clogging the court system. If counsel were more diligent about Summary Judgment, many trials could be shortened or eliminated altogether. Summary Judgment is a vehicle which should be carefully analyzed in each case since most clients would prefer to have their cases adjudicated summarily rather than fund a full scale trial.