Summary Judgment

• Author: Jennifer Duncan-Brice
• Pages: 341-416

30-1

SUMMARY JUDGMENT

Chapter 30

SUMMARY JUDGMENT

QUICK VIEW

Definitions: A motion for summary judgment requests the court to enter judgment in favor of the moving party

on the grounds that no genuine issue of fact exists and as a matter of law judgment should be entered. The motion

is based on extrinsic evidence. Any party may move for summary judgment.

A motion for partial summary judgment requests the court to adjudicate one or more, but less than all, claims,

defenses, or major issues.

Scope: Advantages and disadvantages. Partial summary judgments. Requirements, burden of proof, and evidence.

Motions for summary judgment. Responses and replies. Oral argument. Post-decision motions and appeals.

Strategies and Tactics:

Both Parties

• Stick to material facts. Are there one or more disputed material issues of fact for any legal element of any

claim or defense? Don’t waste time and effort proving or refuting facts that are not material.

• Scrutinize all evidence (your own and your opponent’s) for admissibility defects.

• Reference the pertinent excerpts from deposition transcripts but attach the entire deposition to the motion.

• Proffer pertinent answers to interrogatories and requests to admit. Use affidavits to authenticate the

excerpts.

• Check local rules and judge’s individual requirements for summary judgment motions.

• Determine if oral argument allowed.

• Move to strike inadmissible evidence that the opposing party proffers.

• Adhere to all time requirements.

Movant

• Before deciding to move for summary judgment:

• Complete sufficient investigation and discovery to have a complete grasp of all the material facts.

• Evaluate all evidence, pleadings, and substantive law governing claims and defenses.

• Identify which facts are material.

• Make sure material facts are incontrovertible, and law entitles moving party to judgment.

• Evaluate possibility and consequence of provoking a cross-motion.

• Support motion with admissible and incontrovertible evidence establishing the material facts.

• Proffer evidence that establishes the facts clearly. Avoid, for example, ambiguous interrogatory answers

and equivocal deposition testimony.

• Present complete arguments because courts will not allow piecemeal arguments.

• Support motion with a cogent and persuasive brief.

• Remind the court it lacks discretion to deny a non-controverted, legally meritorious summary judgment

motion.

• Comply with all service and filing requirements.

ILLINO IS PRE TRIAL PRACTICE 30-2

SUMMARY JUDGMENT

Respondent

• Scrutinize movant’s evidence, recitation of facts, and legal argument.

• Proffer admissible evidence controverting material facts movant asserted. In response brief, spotlight all

genuine issues of material fact.

• Adhere strictly to all time requirements. When the movant first presents the motion, inform the court if you

need more than 28 days to respond and what if any discovery you need before you can respond.

• Move to strike inadmissible evidence proffered by movant.

• If warranted, serve cross-motion for summary judgment or partial summary judgment.

Statutes and Rules: 510 ILCS 5/1 et seq.; 735 ILCS 5/2-1005; 735 ILCS 5/8-201; SCR 191, 192.

Related Topics: Motion Practice, Ch 14; Attacking the Pleadings, Ch 15.

Forms: See digital access for the following form:

• Form 30:10, Motion for Summary Judgment (Slip and Fall Case).

TABLE OF CONTENTS

I. Overview

A. Basic Points

§30:01 Nature and Purpose

§30:02 No Summary Judgment in Certain Situations

§30:03 Motion for Partial Summary Judgment

§30:04 Pleadings Limit Scope of Motion

§30:05 Any Party Can Move for Summary Judgment

§30:06 Burden

B. Motions for Summary Judgment Distinguished From Other Motions

§30:10 Motion to Strike

§30:11 Motion to Dismiss for Failure to State a Claim

§30:12 Motion to Dismiss Because of Affirmative Matter

§30:13 Judgment on the Pleadings

§30:14 Combined Motions

C. Advantages

§30:20 Saves Time, Effort, and Expense

§30:21 Gets You Organized for Trial (If Trial Is Necessary)

§30:22 Forces Opponent to Reveal Evidence and Theories

§30:23 Encourages Settlement

§30:24 Avoids Jury Prejudice

§30:25 Can Eliminate Claims, Defenses, and Issues

§30:26 Can Establish Law of Case

§30:27 Can Establish Facts as Undisputed

§30:28 Educates the Judge for Trial

§30:29 Preserves Issues for Appeal

D. Disadvantages

§30:40 Expensive and Time Consuming

§30:41 Easily Defeated

§30:42 Uphill Battle

§30:43 May Boomerang

§30:44 Tips Your Hand

§30:45 High Reversal Rate

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SUMMARY JUDGMENT

E. Evidence Overview

§30:50 Evidence Required

§30:51 Two-Pronged Test

F. Strategies

§30:60 Revisit Summary Judgment Motion

§30:61 Plan Discovery With Summary Judgment In Mind

§30:62 Know the Substantive Law

§30:63 Focus on the Material Facts

§30:64 Make Clear and Simple

§30:65 Consider Local Rules and Practices

II. Partial Summary Judgment

A. When Appropriate

§30:70 Authority and Purpose

§30:71 Distinguished From Full Summary Judgment

§30:72 Advantages

§30:73 Disadvantages

§30:74 Appropriate Circumstances

§30:75 Liability Judgments

§30:76 Establishing Damages

§30:77 Alternative Remedy

§30:78 Limitation on Issues Can Be Revisited

§30:79 Interlocutory

B. Procedure

§30:90 Procedure Same as for Full Motion for Summary Judgment

C. Effect of Partial Summary Judgment

§30:100 Authority

§30:101 Order Specifying Finding

III. Requirements for Summary Judgment

A. No Genuine Issue of Fact

1. MATERIAL FACT

§30:110 Statutory Authority

§30:111 What Is Material

§30:112 Only Material Facts Count

2. “NO GENUINE ISSUE”

a. General Points

§30:120 Definition of “Genuine Issue of Fact”

§30:121 Fair-Minded Person Standard for Inferences

§30:122 No Summary Judgment if Material Fact Disputed

§30:123 No Summary Judgment if Doubt Exists

§30:124 Unpleaded Claim or Defense Irrelevant

§30:125 Uncontroverted Evidence Taken as True

§30:126 Interpretation of Statute

§30:127 Municipal Ordinance

§30:128 Ambiguous Contract

§30:129 Conduct at Variance with Contract

b. Inferences: Drawn to Create Dispute

§30:130 Opponent Entitled to Favorable Inferences

§30:131 Inferences Must Be Reasonable