Summary Judgment -- the Intersection of Legal Writing and Trial Practice

by David L. Lee

Otto von Bismarck, the great Prussian and German Chancellor of the last half of the 19th Century, believed that the only people who learned from their own mistakes were fools. Smart people, he said, learned from the mistakes of others. So, smart reader, let me offer you a mistake of mine to learn from:

Many years ago, I attended an ABA National Institute on Appellate Practice. As part of the Institute, the attendees were given a canned appeal to argue orally before panels of real federal judges. The canned appeal I argued was the grant of a summary judgment on an alleged contract. The question was: did a written "agreement in principle", when combined with the subsequent actions of the parties, amount to a contract? The “record “ was about 25 or 30 pages long. I studied the record, mastered the facts, planned my argument to uphold the trial court’s grant of summary judgment, and went in the next morning to argue before a panel of federal appellate judges, whose sole purposes would be to show off, make my life miserable, and give me feedback.

I thought I did well and, when the argument ended, awaited the judges’ feedback, expecting to be praised. Instead, what a disaster! The judges didn’t like my strategy, they didn’t like my style, they didn’t like me, and I don’t think they were too crazy about my parents, either. But one series of comments really stood out: my frequent references to the record (in defense of summary judgment) had persuaded the judges that there must have an issue of fact there after all. Summary judgment reversed!

The moral of this story for purposes of this article is: a summary judgment motion is a paper trial, but one of a very special sort. My mistake was ignoring that the issue being tried is not what are the facts, but are there any material facts that are genuinely disputed. The basic (albeit unarticulated) principle is that the movant cannot be in a better position on summary judgment than he or she would be at trial. Thus, the opponent of summary judgment gets the benefit of all reasonable inferences and need only persuade the judge that some reasonable factfinder — who need not be the judge deciding the motion — could find in his or her favor, etc.1

As I discovered in my sad story, summary-judgment motions, by virtue of their location at the intersection of legal writing and trial practice, give rise to an unusual mix of litigation strategy and legal writing tactics. To discuss some of the strategic points first:

As the potential movant, consider the downsides of moving for summary judgment:

A summary-judgment motion may seem riskless, but that is not so. Bringing a summary-judgment motion is a major strategic decision, with upsides and downsides. Thus, before bringing a summary-judgment motion, a lawyer ought to consider at least the following:

Putting your opponent in his or her best possible procedural posture:

When Jon Tomes, former Professor of Legal Writing at IIT Chicago-Kent College of Law, was a military judge, there would from time-to-time be a court-martial in which the defense had a good motion for directed verdict at the close of the prosecution's case. When the defense attorney made the motion, Jon would roll his eyes and say, in a dubious voice, "Well, I guess drawing every reasonable inference on this motion in favor of the prosecution, some reasonable fact-finder could find that the prosecution established its case."

According to Jon, this was his clue as a judge for the defense counsel to rest without putting on a case. When and if the defense did so, Jon was then able to say, "Fine. I find the prosecution's witnesses not credible and that the defendant has not been proven guilty beyond a reasonable doubt".

The point is that, although winning is better than losing, and lawyers like to win as early as possible, of course, not all victories are created equal. A summary-judgment victory puts your opponent in the best possible procedural posture for an appeal, with the facts reviewed de novo, the opponent getting the benefit of all reasonable inferences, etc. If you have a really strong case, and trial will not be too long, too expensive, etc., consider whether a trial victory would not be preferable to a summary-judgment victory. Certainly, it would be more bullet-proof.

Creating bad law of the case:

By the same token, you could lose summary judgment and create bad law of the case for yourself. For example, suppose the judge denied summary judgment because a reasonable jury could infer certain ultimate facts from certain evidence. Your opponent could use that finding in a jury-instruction conference ("As Your Honor ruled in denying summary judgment, the jury can infer this. All this instruction does is tell them that that inference is permissible"), in closing argument, in arguing against a motion for judgment as a matter or law, etc.

Giving your opponent a psychological victory:

Even if you don't create bad law of the case, a denial of summary judgment could give your opponent a much-needed psychological lift. Suppose, for example, the case is in settlement negotiations. An opponent facing the threat of a decent summary-judgment motion may be more willing to settle or may settle for less. Once you bring and lose the summary-judgment motion, however, the opposing attorney may see less reason to make settlement concessions -- and the opposing party (not understanding the legal niceties) may think that the judge has said that he or she will win. You lost all value of the potential motion for summary judgment hanging over the other side's case. As chess players say, the threat is stronger than the execution.

Creating impeachment against yourself:

Whenever you submit new materials (such as affidavits ) in support of a summary-judgment motion, you are creating potential impeachment. Even if the statements in the affidavit are not a problem, there is always the possibility of impeachment by omission.

Boomerang summary judgment motions:

Asummary-judgment motion may move your opponent to file a cross-motion. Even worse, the judge may enter summary judgment or partial summary judgment against you. See, Federal Rule of Civil Procedure 56(d); Illinois Code of Civil Procedure 2-1005(d). Compare, Rivera-Flores v. Puerto Rico Telephone Co., 64 F.3d 742 at 747-48 (1st Cir. 1995) (discussing FRCP 56(d)).

Bad-faith or frivolous summary-judgment motions:

There some areas of the law (like employment-discrimination) in which summary-judgment motions are almost always brought, but, even in those areas, not all summary-judgment motions are good. The rules have provisions for bad­faith affidavits [Federal Rule of Civil Procedure 56(g); Illinois Code of Civil Procedure §2-1005(f)]. In addition, representing that there are no undisputed issues of fact, when it is obvious that there are some, is sanctionable. Goka v. Bobbitt, 862 F.2d 646 at 650 (7th Cir. 1988).