The term summary judgment is a bit of a misnomer. While a successful motion will result in a judgment, there is typically nothing "summary" about the process. Motions for summary judgment are time-consuming and expensive. But, increasingly, summary judgment—not trial—is how cases are won or lost. So, too, discovery is generally conducted in order to set the stage for summary judgment motions to come.
Whether true or not, many accomplished trial lawyers will answer the questions, "when do you start thinking about opening statement," or "when do you start thinking about jury instructions," with "when I draft the complaint [or answer]." The start of the case is also when you need to start thinking about summary judgment and its basic standard—the absence of a genuine dispute as to any material fact and entitlement to judgment as a matter of law.
Motions for summary judgment are frequently used to "educate the judge," as an effective "discovery tool" to flush out the other side's evidence, or as pre-settlement posturing.1 But the goal is judgment. Here is an eye-opening statistic: 49 percent—nearly half—of all summary judgment motions made by defendants are granted either in full or in part according to a study by the Federal Judicial Center.2 Although plaintiffs fare less well (29 percent to 36 percent success rate reported in Trends), it is obvious that judges are receptive, and there is evidence that they have grown more receptive over time.3 Comparing these success rates with the fact that only 1 percent of cases now go to trial in federal court,4 summary judgment must at least be considered in every case.
This chapter explores the strategies for seeking summary judgment and the timing of a motion, as well as the strategies for defeating summary judgment. To help with a better appreciation for strategic concerns, this chapter begins with a discussion of the federal summary judgment rule, Rule 56 of the Federal Rules of Civil Procedure,5 the jurisprudence surrounding it, and some interesting (and surprising) empirical evidence concerning the use and effects of the summary judgment process.
Here is the executive summary in two words—simple and complicated. If you are moving for summary judgment, it must be simple. If you are opposing, it must be complicated.
Summary judgment is a judgment without trial. In essence, a motion for summary judgment tells the court there is nothing to be tried. Instead, there are a set of uncontroverted facts sufficient to establish a claim or defense as a matter of law. The summary judgment device gives any party, whether a claimant or one defending against a claim, the opportunity to convince a court that it should enter judgment in its favor without a trial. The standard for summary judgment is stated in one concise sentence of Rule 56(a): "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."6
In ruling on a motion, the court may not weigh the evidence or judge the credibility of the witnesses, and it must construe the evidence in a light most favorable to the nonmoving party, drawing all permissible inferences in its favor. Applying these standards, any substantial evidence in favor of the nonmoving party is sufficient to defeat the motion. These standards serve, in part, to insure that the jury function is not usurped.
The success of the motion will turn not simply on whether the party filing it has a very strong case, but on a clear presentation of the material facts which are uncontroverted, the absence of a genuine dispute, and the requirements of the applicable law. A good motion for summary judgment cuts through the pleadings and immaterial noise and shines a light on a compelling record that leads to no other conclusion than a judgment for the movant. A good opposition to a motion for summary judgment makes noise by demonstrating that there are genuine issues of material fact that should be resolved through trial.
Whether one or more motions for summary judgment are filed or not, the consideration of summary judgment is a major factor in discovery. In a survey of its members, the ABA Section of Litigation found that approximately half of all lawyers believe "discovery is used more to develop evidence for summary judgment than it is to understand the other party's claims and defenses for trial."7
A successful summary judgment motion will obviously save the time and expense of a trial and will expedite the conclusion of the case. Even when a summary judgment motion is not granted in full, it may result in streamlining the case for trial or having a positive effect on settlement.
That is what summary judgment is. What it is not is an uncomplicated and inexpensive procedure. It does not always save lawyer time, legal fees, or court time.8 In most cases it does not eliminate the need for trial. It is not for every case. But, it should be seriously considered for every case, and its focus on a careful analysis of the material facts, what is really in dispute, and the applicable law, provides a useful discipline for good case assessment.
No Genuine Dispute as to Any Material Fact
Summary judgment procedure seeks to separate the wheat from the chaff. Court files and even pleadings tend to accumulate a lot of chaff. Some of the chaff is necessary to create a narrative and establish winning themes for the case. But chaff does not require a trial. And so for purposes of summary judgment, it is only genuine disputes of material facts which require trial and which preclude summary adjudication.
Genuine Dispute
A dispute is genuine when the evidence would permit a reasonable jury to find in favor of either party.9 In making that determination the court must view the evidence "through the prism of the substantive evidentiary burden."10 Thus, in the typical civil case in which the burden of proof is preponderance of the evidence, the court must determine that the evidence is sufficient for a reasonable jury to find, by a preponderance of the evidence, for either party. Also, in order to create a genuine issue for trial, the evidence must be believable. The principal authority for this is the Supreme Court's decision in Scott v. Harris,11 in which eight members of the Court, on a de novo review of the police videotape of a high speed chase, found it to "closely resemble[] a Hollywood-style chase of the most frightening sort." The majority concluded that "no reasonable jury could conclude otherwise," disagreeing with both the trial judge and the Eleventh Circuit Court of Appeals and directing the entry of summary judgment in favor of the police officer who had been sued by the fleeing driver who had been rendered a paraplegic in the ensuing car crash. Justice Scalia, writing for the majority, described the "believability" standard:
When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.12
Only Justice Stevens, like the trial judge and the circuit court judges, saw the videotape differently. In his lone dissenting opinion, Justice Stevens observed that
eight of the jurors on this Court reach a verdict that differs from the views of the judges on both the District Court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.13
This "blatant contradiction" exception to the rule that the court should accept the nonmovant's version of the facts is sparingly used.14 However, it has been used a number of times based on videotapes,15 and in today's world where there is a video camera on every corner and in many commercial and residential properties, it would seem that the "blatant contradiction" exception and the Scott case will have continued relevance.
Desperate times call for desperate measures, and on occasion, a party, typically the nonmovant, will principally rely on an uncorroborated affidavit or deposition testimony of some key person. Such testimony or affidavit are targets for the "blatant contradiction" exception. Thus, "a party's uncorroborated self-serving testimony cannot prevent summary judgment, particularly if the overwhelming documentary evidence supports the opposite scenario."16
Material Facts
A fact is "material" if it might affect the outcome of the case under the governing substantive law.17 Conversely, disputes over immaterial facts will not preclude summary judgment.18
The only facts that may affect the outcome of the case—and thus are material— are those that tend to prove or disprove the "legal elements" of the claim or defense.19 In a simple breach of contract case, the elements are the existence of a contract, breach of the contract, and resultant damages. Facts that tend to prove or disprove these elements are material. Everything else, such as the defendant's intentions in breaching, is immaterial. An excellent place to look when preparing for summary judgment, as in drafting pleadings, is the pattern jury instructions. The jury instructions are what will tell the trier of fact how to decide, and they provide the target to aim for when building the record. Although jury instructions are too often one of the last things a lawyer drafts in a case, they are one of the...
