How to defeat a motion for summary judgment

  Photo:  Anne and John at The Lucky Diner in Belltown where we have our morning staff meetings to discuss things like MSJs.

Photo:  Anne and John at The Lucky Diner in Belltown where we have our morning staff meetings to discuss things like MSJs.

The dreaded motion has arrived.  The defense has moved to prematurely dismiss your client’s case on some legal technicality.    Even though you’ve probably seen this coming, your first instinct is to panic.  Then you devour the entire motion.  Get mad.  And attack it point by miniscule point.  Smoosh it to smithereens – at least in your own mind.

The defense wants you to be reactive to a motion for summary judgment in just this way.  This means you will fight the battle on their turf.  You will be defending your case (instead of prosecuting it).  You will be focusing the judge on what the other side says is important.

Here are my thoughts on how to respond to an MSJ:

  • Let it sit on your desk or inbox until your anger based adrenaline has subsided.  This means at least a full day.
  • The next day read it quickly to get the essence.  Then leave it alone for at least another full day.  It needs to percolate.
  • The next day read it more thoroughly.  Decide if witness declarations will be needed.  These should be a top priority.
  • Contact the witnesses and secure signed declarations.  This is harder than it sounds on all levels.
  • Do not make up stuff and stick it in declarations.
  • Try to use the witnesses’ own words and tone of voice.
  • Don’t just retype expert reports  into the form of a declaration.  They need to read the MSJ and rebut the bad stuff.
  • Review any depositions, interrogatory answers or other documents that have to do with the liability case.
  • You should have already taken key depositions to develop evidence to resist an MSJ.
  • If you don't have all the discovery needed, move for continuance under CR 56F.  This means you have to list out everything that you expect to be able to secure and prove.
  • Make note of the best evidence you have to support your client’s case.
  • Read and analyze all of the related  laws,  statutes, ordinances, standards and case precedent.
  • When researching, avoid a Google mentality.  One click leading to one answer means you have done it wrong.
  • Don’t ever misquote anything
  • Re-read the MSJ completely from top to bottom before beginning to draft the response
  • Ignore their briefing when setting up the format of your response.
  • I was taught to draft a fantastic conclusion that set forth succinctly and persuasively the best reasons the motion should be denied.  Draft that section first and instead of putting it at the end put it at the beginning.
  • Anchor the case with a broader morality/public policy component.
  • Judges shouldn’t have to wait for the end of a 24 page brief before finding out your best argument.
  • Give the judge your roadmap on page one.
  • Your entire brief should be premised upon that initial position statement.
  • morality/policy
  • Do not restate the other side’s issues and base your response around them.
  • Do not set forth issues in technical legalistic jargon.
  • Don’t set forth the issues as questions  “should the court…” and then answer them “Yes.”
  • Frame the issues the way they should be framed.
  • Remember you represent the plaintiff - the one who brought this suit and needs to be advancing it
  • Set forth the issues affirmatively as statements
  • Do not tell the court that they must do something.
  • Be respectful to the judge and don’t try to order them around
  • Be intelligent but not obnoxiously so.  This is a fine line for lawyers.  We do like to dazzle.
  • Avoid legalese.  Jurors aren’t the only ones tired of hereins, thereins, heretos, and thuses.
  • Completely re-state the facts.  Don’t simply add to or clarify the facts in the MSJ.
  • Folklore has it that a case is usually won on its statement of facts.  So make them as compelling as you possibly can.
  • Support each statement of fact with a reference.  Otherwise it is simply considered to be fiction and will be ignored.
  • Don’t put the references in the text.  Put them in footnotes.  This makes for an easier read.
  • Put key documents including photos directly into the text.   Hyperlink them to working copies if you can.  Attach them also as exhibits.
  • All the exhibits need to be verified as being true and correct by declaration.
  • Don’t waste pages by creating a specific section in the response brief that lists all the exhibits.
  • Use your statement of issues as the outline for the argument.
  • Lead with your best arguments first.
  • Address and demolish the defense arguments  somewhere in the brief.
  • Don’t pretend that good points raised by the defense don’t exist.  They exist.  So deal with them.
  • Avoid a defensive tone.
  • Don’t be petty, derogatory, arrogant, or condescending.
  • Save aggressive adjectives and verbs for occasions when they are truly deserved.  Then use them elegantly.
  • Research every single case cited by the defense.  This is where they usually flub up.
  • Obey page limits precisely.
  • Obey time limits precisely.
  • Complete the draft response several days before it is due.
  • Then let it sit for a day before having another go at it.