Summary Judgment

• Author: Peter J. Boyer
• Pages: 167-178

In the business torts litigation world, most cases are resolved before an

opening statement or selection of a jury. A motion for summary judgment

is, in many cases, the pivotal battle in the litigation. Discovery has usually

been completed, preliminary motions addressing venue, jurisdiction, and the

sufciency of the pleadings have been resolved, and the issue remaining for

determination is what claims and issues, if any, will be presented to a judge

or jury for determination at trial. For the defense, summary judgment may

be the last opportunity to avoid a trial on particular claims and issues. For

the plaintiff, it is an opportunity to demonstrate that it has marshaled suf-

cient evidence to persuade a judge or jury that its claims are meritorious

and that it should be given the opportunity to present its case at trial. The

summary judgment determination will inuence important decisions to fol-

low: whether to settle the case and on what terms, and if settlement is not

in the cards or not on the agenda, formulating the plan of attack for trial.

I. THE MODERN VIEW OF SUMMARY JUDGMENT

In federal court, the standards applicable to motions for summary judgment

were reshaped by a trilogy of cases issued by the United States Supreme

Court in 1986. In Celotex Corp. v. Catrett,

1

Anderson v. Liberty Lobby,

1. 477 U.S. 317 (1986).

167

CHAPTER 9

Summary Judgment

Peter J. Boyer

Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 167 8/12/14 10:25 AM