For lawyers, some practice tips are invaluable. Graduates of my classes know how important the motion for summary judgment is. If successful, that motion can conclude litigation short of trial. The court merely has to find that there is no triable issue of fact, and that the case can be decided as a question of law. No wonder the bar examiners like to test on this motion.
Today I bring you a great set of tips for defending against a motion for summary judgment. Not surprisingly, using the tips requires Element-Fact analysis.
How To Defend Against A Summary Judgment Motion
From George Vetter’s book, “ Successful Civil Litigation,” quoted in Steven Stark’s book, “Writing to Win”:
1. Demonstrate an issue of fact, or
2. Expose the invalidity of materials supporting the other side’s motion (for example, mistakes in the affidavit), or
3. Illustrate how the case hinges on something else that needs to be assessed, such as credibility, or
4. Show the moving party’s exclusive control of the facts.
(Hat tip, Louis Sirico, Legal Skills Blog)
Is that list of suggestions not elegant? It's a how-to for defending against a motion for summary judgment, and it makes use of deep understanding of how the motion works. It uses Element-Fact analysis to take the "factual" element of the rule for summary judgment and challenge it. Here is something everyone who goes near a courtroom can use. But more than that, it illustrates an approach to law practice that is intelligent and workmanlike.
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