California’s Premier Litigation Law Attorneys

Balancing risk and rewards in filing motions for summary judgment.

• Before filing a motion for summary judgment, you need to balance the risks and benefits of it. By “motion for summary judgment,” I’ll be referring to motions for summary adjudication as well, which are treated more favorably in federal court than in state courts such as California.
• Since most motions for summary judgment or summary adjudication are filed by defendants and not plaintiffs, I’ll focus on summary judgment motions from the point of view of defendants, with plaintiff as the non-moving party. If you have any questions about whether something I’ve said would apply equally to a motion for summary judgment / summary adjudication filed plaintiff, please feel free to ask me.
• Many defendants automatically file a motion summary judgment in every case, even if they don’t reasonably expect to win it. While of course it is to a defendant’s advantage to knock out as many claims or issues as possible, the time and costs incurred in filing a motion for summary judgment are substantial. The client will be displeased if after the fact, it seemed obvious that the motion for summary judgment would have been denied, after you billed 50-60 hours on it.

• Some cases are more amenable to summary judgment, and your decision to file one or not should take that analysis into account. Certainly if the case or a cause of action turns on a pure question of law – such as whether defendant owed a duty to plaintiff under the facts and circumstances at issue – that should be addressed in a motion for summary judgment to the extent it was not resolved in challenges at the pleading stage.
• Summary judgment is more likely to be granted if the issues turn on documentary evidence. Also, if your motion is based on the non-moving party’s apparently lack of evidence to support a claim or element of a claim, such as its devoid discovery responses, that’s a summary judgment motion that’s worth making.
• On the contrary, summary judgment motions that try to resolve intent or state of mind, issues of causation, or whether negligence has been committed, are harder to win because issues of disputed facts can be easier found in those cases.

• There are many benefits to filing a motion for summary judgment.
• Obviously, if the motion prevails, the case is over as to that defendant without going to trial. While the losing plaintiff can and likely will appeal it, and grants of summary judgment do get reversed, it at least gives you significant leverage in negotiating a settlement.
• Even if plaintiff’s whole case is not knocked out, you may be able to obtain summary adjudication of one or more causes of action in the pleading, or some issues that are material to the litigation. That would narrow the claims and issues that you need to address at trial, thereby allowing you to focus on the claims and issues that are still remaining and in theory, reduce the fees and costs incurred in preparing for trial.

• Even if your summary judgment is entirely unsuccessful, in that you neither obtained a dismissal of the action or of any claims or issues, a motion for summary judgment will force the non-moving party to “show its cards” and present its best evidence to support its claims. That would allow you to focus more on that particular evidence in preparing for trial.
• My firm encountered this strategy by defendants in a case where we represented a plaintiff suing for catastrophic injuries, and where we recently obtained for him a $16 million award. This was in California state court, but the same concepts and strategies would apply to a motion for summary in federal court.
• The main issue in the case was whether a road construction project that caused our client’s accident constituted a “dangerous condition.” Most likely defendants did not realistically expect to win their motions for summary judgment. They provided the declarations of their experts opining why the road condition was not dangerous, and we provided expert opinions to the contrary, which raised a disputed issue of fact. However, as a result, defendants were able to learn well before expert discovery who our liability experts were going to be and what they were going to say, so they could better prepare for them when expert discovery began.

• Sometimes you get lucky by encountering opposing counsel who’s less competent, and who would likely be unsuccessful in opposing a motion for summary judgment that otherwise should have been denied. Opposing a motion for summary takes skill and effort, and it’s not rare for plaintiffs to lose motions for summary judgment where they could have easily raised disputed issues of fact.
• Previously discussed were motions for summary judgment that in all likelihood, would be denied, and the client’s reaction when such obviously meritless motions are filed. At the same time, many defendant clients, especially corporate clients, expect a motion for summary judgment to be filed as a matter of course. In those cases, you will have to justify a decision not to file a motion for summary judgment, such as the low probability of success versus the cost of preparing one.

• Let me turn now to the disadvantages of filing a motion for summary judgment and having it be denied.
• First, it takes significant time and effort, and therefore attorney’s fees and costs, to prepare a strong motion for summary judgment. Even assuming that all the necessary documents are present, the other side’s key witnesses have been deposed and have made admissions favorable to you, and your own witnesses are available and cooperative, it can take weeks to prepare a motion for summary judgment that complies with all the procedures but that are legally and factually supported.
• Just as a party opposing a motion for summary will have to show its cards, the party making such motion will have to do the same. Therefore, if you lose the motion, the opposing party will be alerted to what you consider as your strongest factual and legal arguments, and what you consider as its weakest points, so the opposing party will have the chance to focus on those issues and correct any deficiency.
• Also, by having your own witnesses file declarations with facts to support summary judgments, they’ll be bound to those statements, and any contrary statements in a subsequent deposition or at trial will be damaging.

SECOND TOPIC:

Planning discovery to support a motion for summary judgment, including from third-parties.

• I’d now like to address taking into account your intention to file a motion for summary judgment as you prepare a discovery plan and conduct discovery.
• Most attorneys start out the case by asking for all documents and information potentially relevant to the claims and issues in dispute, and that’s fine as an initial step. However, you risk getting mostly useless material, while potentially missing some discovery that’s needed for an effective motion for summary judgment.

• In most cases, attorneys draft a motion for summary judgment based on the discovery they have already obtained, such as documents already produced or deposition testimony that has already been given. If they happen to have the discovery that supports a particular summary judgment argument, that’s great; if they don’t, they omit that argument or use whatever available evidence comes closest to supporting the argument, which might not be close at all.
• Ideally, what attorneys should do is almost the opposite, sequence wise. Plan the summary motion judgment first (including the elements of all claims and affirmative defenses), and then in conducting discovery, focus on obtaining the documents, interrogatory responses, or deposition testimony supporting the motion.
• For example, elements of a fraud claim include reliance and materiality. If you take plaintiff’s deposition without first considering those elements, and without specifically tailoring your questions to address those elements, you may end up with favorable admissions by happenstance, or you may not. Also, planning ahead such questions will allow you to ask them in different ways at different periods during the deposition, so plaintiff may give an unhelpful answer the first time but not the second time.

• Basic and relatively easy discovery tools that can lead to effective summary judgment motions are contention interrogatories and requests for admissions.
• Many attorneys faced with answering interrogatories or RFA’s will give essentially useless answers that restate the allegations of the pleading.
• However, if those answers are conclusions instead of facts, or if they fail to identify documents supporting one claim or another, such responses to interrogatories and RFA’s can be used as part of a motion for summary judgment based on the non-moving party’s lack of sufficient evidence to raise any disputed issues of material fact.

• Discovery from third-parties play a very important role in litigation generally, but also for purposes of summary judgment.
• Even if your adversary is acting in good faith and not withholding documents that it is supposed to produce, there’s a good possibility that relevant documents will be missing. If there are third-parties who likely would have the same documents, because, for example, they were on the other side of emails or other correspondence with plaintiff, document and depositions subpoenas should be served on them to obtain those documents. Truly disinterested would have no reason to withhold documents to help your adversary, but even witnesses friendly to your adversary may produce documents that are helpful, because they often don’t realize the significance of what materials you’re asking for.
• The same concept of planning a summary judgment first and then taking discovery, rather than the other way around, applies equally to third-parties. For examples, third-parties will likely not be coached, or be less coached, by plaintiff’s attorney, so they are more apt to make statements helpful to your motion, including recounting any party admissions made by plaintiff (which are admissible as non-hearsay).

• Much of the evidence supporting a motion for summary judgment will come from declarations by the defendant if he or she is an individual, or witnesses affiliated with defendant. A full and complete declaration that contains and refers to exhibits takes more time and effort to prepare than it would appear given the need to closely work with those witnesses.
• Also, to the extent that you anticipate needing any expert declarations for your summary judgment motion, they should be retained well ahead of time, so that there’d be sufficient opportunity to work out what declarations they’ll provide in support of or to oppose a summary judgment motion.
• Therefore, as part of the discovery process, including preparing your witnesses for deposition, take into account the same summary judgment outline that I previously discussed. This would also encourage the witness to focus on the questions and answers that are most relevant to your case.

SUGGESTED QUESTIONS

1. What are some of the procedural issues that we should be concerned about in preparing summary judgment motions?

Answer: The first place to start is the statute itself, so reading the actual text of FRCP 56 before preparing the motion would be helpful no matter how many times you’ve filed a motion for summary judgment. Since this Webinar covers federal practice generally, rather than any particular federal court, you should carefully review the local rules that govern summary judgment motions, as well as any of the individual judge’s rules concerning the same.

For example, in the Central District of California, where our firm is based, the Court requires a “Separate Statement of Uncontroverted Facts and Conclusions of Law,” where for each claim or cause of action, you must set forth the assertedly undisputed facts that support it, and cite to the evidence. The non-moving party must file a response to that Separate Statement, which in our district is called a “Statement of Genuine Issues in Opposition to Motion for Summary Judgment.”

Our local rules also govern when oppositions and replies must be filed, since Rule 56 itself doesn’t address those issues.

2. What if I, as the non-moving party, don’t have enough evidence to oppose a summary judgment motion?

Answer: Particularly given the relatively short amount allowed by federal courts to oppose a summary judgment motion, what I said previously about planning for summary judgment early in the case would apply to plaintiffs as well. In effect, plaintiff needs to predict to the extent possible, what summary judgment arguments defendant would make, and plan plaintiff’s discovery accordingly. For example, plaintiff needs to be familiar with the elements of all the claims it’s asserting, determine what evidence would support each element, and consider whether that evidence can be obtained from its own witnesses or defendant’s witnesses and third-parties.

FRCP 56(d) provides if the non-moving party can show good reasons for why it cannot present facts essential to oppose the motion, the court can deny or defer the motion, or allow the non-moving party time to obtain such discovery. You would need to show that the sought after evidence is likely to exist; specific reasons for why such evidence could not have obtained earlier; what steps or procedures plaintiff proposes to take to obtain the needed evidence; and an explanation of how the additional discovery will be sufficient to defeat the motion. Ideally, you won’t need to resort to this provision, and the discovery you’ve obtained so far and can quickly access from your own witnesses will be sufficient to present a credible opposition to a summary judgment motion.