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:
• 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.
• 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
• Comply with all service and filing requirements.