Drafting a Successful Motion for Summary Judgment

You’ve been making progress at the firm, and now you’re drafting pre-trial motions. Are you ready to work on a motion for summary judgment?
 
Why Firms Seek Summary Judgment
 
When the material facts of a controversy are not in dispute, your firm can seek to prevail by making a motion for summary judgment as to any claims in the case, including third-party complaints, counterclaims, cross-claims, intervention, and interpleader. If you succeed, the court will rule that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.
 
The time for bringing a motion for summary judgment is after the pleadings are closed but within such time as not to delay the trial.
 
What’s your specific objective? As noted in Moore’s Federal Practice – Civil, Section 56.32, summary judgment may be intended to:
  • Completely resolve a case (e.g., entry of judgment for plaintiff or defendants)
  • Completely resolve a claim
  • Completely determine the status of a particular party
  • Resolve a particular claim’s application to a particular party
  • Establish a fact or ruling applicable to the case as it is further adjudicated
Moving for summary judgment can be costly―both financially and strategically. In the case of your assignment, experienced attorneys in your firm consulted with their clients to determine that it’s worth taking this course. Now, it’s up to you to create a strong draft that will move the process forward. (No pressure!)
 
What Do You Need to Know?
 
As you begin, find out what steps your firm has already taken before and during discovery to pursue questions on the factual basis of every count of the complaint. You also will need to know what pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports by expert witnesses may be suitable to include with the motion.
 
If you are using CaseMap® case analysis software, you can use its MSJ Statement of Fact Creator to simplify preparation of a Motion for Summary Judgment by quickly producing a list of all undisputed facts linked to case issues.
 
Be sure to consult the statutes, rules of civil procedure, and local court rules for the requirements of the jurisdiction where you will be filing your motion. Then, use a suitable federal or jurisdictional form. Resources include:
  • Bender’s Federal Practice Forms
  • Moore’s AnswerGuide: Federal Pretrial Civil Litigation, § 9.21 et seq.
  • All Federal Litigation LexisNexis Forms
  • Litigation/pre-trial treatises for your jurisdiction, such as Dunlap Hanna - Civil Procedure & Evidence Law Forms & Commentary, P 15.15, NY Civil Litigation Enhanced LexisNexis Forms, California Forms Of Pleading and Practice - Annotated, LexisNexis Practice Guide: Florida Civil Motion Practice, and Dorsaneo, Texas Litigation Guide, Ch. 101.
 
Review Other Briefs, Pleadings and Motions
The LexisNexis® Editorially Selected Briefs, Pleadings & Motions collection can help you review how similar litigation developed, study how other legal professionals have framed arguments on your topic, and find template models for your own work. Seeing how other practitioners have approached a motion for summary judgment in a given practice area can be invaluable.In addition, motions for summary judgment are often accompanied by briefs, so briefs in the collection can serve as a shortcut to the research and writing required for these documents.
 
It’s also worth exploring the LexisNexis® source All Federal and State Briefs and Motions, Combined. This collection of briefs and motions includes federal jurisdictions, such as the U.S. Supreme Court, Court of Federal Claims, all federal circuit, district and bankruptcy courts, as well as a variety of state cases on the supreme, appeals, superior and circuit court levels. Some miscellaneous jurisdictions are also covered. Practice areas include labor and employment, complex litigation, intellectual property, real estate, commercial law, insurance and products liability, plus a continually expanding range of expert witness-related content.
 
Briefs, pleadings and motions are easy to access via the LexisNexis services at www.lexis.com .You can also check out a Briefs, Pleadings & Motions Webinar on the Lexis® Hub.
 
Be Factual and Convincing
 
Your motion will need to convince a judge that the law and facts of the case support summary judgment. The judge will need to be satisfied that the motion contains no misstatements. You may need to include a great deal of material, but clear, factual, and persuasive writing will help make review as straightforward as possible for the judge.

Adhere to the structure and standards provided in your form, and make sure you provide ample time for your assigning attorney to review your work. This is a valuable learning opportunity for you! Do your research and act promptly on the advice you receive from within the firm. Honing your ability to draft effective pre-trial motions can make you a valuable asset to the firm