A Practitioner's Guide to Summary Judgment Part Ii
| Publication year | 1999 |
| Pages | 30 |
68 J. Kan. Bar Assn. January, 30 (1999). A PRACTITIONER'S GUIDE TO SUMMARY JUDGMENT PART II
Robert W. Parnacott [FNa1]
Copyright (c) 1999 by the Kansas Bar Association; Robert W. Parnacott
Introduction
In Part I of this article, [FN1] the statutes, rules and basic principles involved in summary judgment practice were covered. The second part of this article is intended to address tips and traps in summary judgment practice, as well as appellate review of summary judgment decisions. Summary judgment practice in state or federal district court is more than simply following the statutes and court rules in pursuing or defending against a motion for summary judgment. There are tips that may enhance a practitioner's success in summary judgment practice. Hidden within the statutes and court rules, however, are traps for the unwary that can mean the difference between going to or avoiding trial.
Page 31
Beyond the run of the mill summary judgment situations, there are those that crop up from time to time with unusual characteristics. What if one of the parties is acting pro se? When can a motion to dismiss or one for judgment on the pleadings be treated as a motion for summary judgment? What happens if both parties move for summary judgment? In federal court, where the parties are litigating claims governed by state law, does the federal court treat summary judgment motions differently? What should a third party do when the other parties to the lawsuit are involved in a summary judgment motion regarding an issue not directly affecting the third party? Can a party in a federal or state administrative proceeding seek summary judgment? All these questions have arisen before, and answers lie onward.
Tips
In preparing to move for summary judgment: Work backwards
After deciding to move for summary judgment, an attorney should have a plan. One method is to, through legal research, determine what facts you need to obtain summary judgment. To use a simple example, if the reason for summary judgment is the statute of limitations, two facts are generally the controlling factor: when did the cause of action accrue and when was the action filed. Now you have to determine the best method to obtain those facts, either through discovery or other means and then use those methods to get the facts you want. This example is obviously simplified because one of the facts is a given, the date the petition or complaint was filed is easily found. The other fact, when the cause of action accrued, however, will probably require some discovery.
The discovery also must be geared to obtaining factual materials that cannot be successfully controverted. Documentary evidence, where appropriate is a good source, and admissions by the plaintiff at deposition or through requests for admission are even better. What works is necessarily dependent on the type of action involved. An attorney should also realize that in pursuing a particular course of discovery for certain facts, the opposing counsel will probably be aware that those discovery requests appear to be targeted to a particular element of a claim or defense. The opposing counsel should then initiate their own discovery to obtain the evidence needed to be ready for the oncoming summary judgment motion.
Timing: When should you move for summary judgment
Obviously you should not move for summary judgment until you have sufficient evidentiary material to demonstrate to the court that there are no genuine issues of material fact. More importantly, you should move for summary judgment at the point your opponent may not be able to come forward with anything of evidentiary value to convince the court there are material disputed facts still present. For instance, if you intend to move for summary judgment in a medical malpractice case based on lack of expert testimony that your client breached the standard of care or the absence of causation between any breach and the injury, you may want to wait until the discovery deadline for designating expert witnesses has passed.
Examples of the application of summary judgment to particular matters
"[I]t is a well-established principle that summary judgment is available to plaintiffs and defendants in all forms and kinds of civil matters." [FN2] However, some issues and causes of actions are more amenable to summary judgment than others. The easiest way to tell the difference is to ask whether the issue at hand is more properly characterized as a question of law or a question of fact. If the latter, in all likelihood the situation will require resolution by a factfinder, unless the facts are undisputed, or only given to one conclusion. It is clear, however, that any claim, if the facts are undisputed, may be resolved by summary judgment. [FN3] However, some courts hold that affirmative defenses, because they do not fall within the matters covered by the summary judgment statute (claims, counterclaims or cross-claims), cannot be determined by a motion for summary judgment. [FN4] Kansas state courts, however, do not follow this rule. [FN5] The following types of litigation have been found to be particularly well-suited for summary judgment: an agent's status as an employee under the workers' compensation statutes; [FN6] and construction of written instruments, [FN7] including insurance policies [FN8] and contracts. [FN9]
The following matters are some examples of types of litigation that have been characterized as less susceptible to summary judgment:
Negligence claims [FN10]
Where a person's state of mind is at issue, e.g.whether the parties intended to create an implied employment contract, [FN11] or where fraud is alleged, [FN12] unless the facts are undisputed. [FN13]
Antitrust litigation. [FN14]
Employment discrimination litigation. [FN15]
Patent cases, due largely to the complexity of issues normally involved in trying this type of case. [FN16]
A facial attack on the constitutionality of a statute. [FN17] Other examples of types of litigation either suited or not suited for summary judgment may be found in the Historical Appendix included in Moore's Federal Practice. [FN18]
In defending against a motion for summary judgment, think disputed issue of material fact
The first line of defense against a summary judgment motion is that there are genuine issues of material fact. Every effort should be made by the party opposing the motion to convince the court there are genuine issues of material fact. A party opposing the motion for summary judgment should be aware of any evidentiary material available to controvert the facts asserted by the movant. No stone should be left unturned. If sufficient material is not available, the next step is to determine if additional discovery would provide the material. If so, an affidavit specifically identifying the information needed and requesting an extension of time to respond should be filed.
Educating the judge
If the area of law is relatively new or has recently changed a summary judgment motion, if also otherwise merited, may also serve to assist the judge in understanding an area of law involved that the court may not be familiar with. [FN19] In opposing the motion, the object is to get to trial, which means that the issues of law will still need to be ruled on at that time. The parties therefore should take advantage of the summary judgment motion to lay the groundwork for the judge to make an informed decision both at the summary judgment stage and later at trial. Also, as an aid to the judge, if a party is citing to a recently published court decision or a periodical article the judge may not have access to, then a copy of that item should be included as an attachment.
Structure the memorandum in support of or in opposition to, summary judgment so the judge can easily understand your arguments
Writing a memorandum in support of or in opposition to summary judgment is like any other persuasive legal writing product; the goal is to convince the reader, in this case a trial judge, that your position should be adopted as the court's decision. This requires making the reader receptive by providing a coherent structure that is easily followed. This basic precept of legal writing was apparently not followed in one case, leading a federal judge to observe:
The court feels compelled to note at the outset of this order that plaintiff's theories, simple when boiled down, are complicated by his disorganized, repetitive and impenetrably convoluted arguments. . . . The remainder of plaintiff's response and his entire motion for partial summary judgment . . . is little more than a repetition of the same mantra-like phrases . . . , supported by cases, many of which have little or nothing to do with the issues at hand. [FN20] For the movant seeking summary judgment, the arguments and authorities section should be divided into the separate grounds for summary judgment if there are multiple grounds. For example, a defendant in a medical malpractice action may seek summary judgment on the grounds of statute of limitations, lack of expert testimony on the issue of breach of duty and lack of expert testimony on the issue of causation. Each of these sections could then be subdivided into statement of the legal principles, reference to the facts of the case and application of the facts to the law, followed by a succinct conclusion that ties everything together and demonstrates to the court there is only one reasonable resolution.
The counsel opposing summary judgment has more choices to make, however. Is it best to follow the movant's organization and refute each argument in the order made? Or does the non-movant have arguments that are in addition to the ones made by the movant? If so, what...
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