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What is summary judgment?
A summary judgment is a
determination on the merits of a case made by a court
without a full trial. Such a judgment may be issued as to
the merits of an entire case, or of specific issues in
that case (in the latter case, its called a summary
adjudication in a few jurisdictions).
In Common Law systems, issues of law, that is to say,
what the law actually is in a particular case, are
decided by the judge, except when jury nullification of
the law acts to contravene or complement the instructions
or orders of the judge, or other officers of the court. A
factfinder has to decide what the facts are and apply the
law. In traditional Common Law the factfinder was a jury,
but in many jurisdictions the judge now acts as the
factfinder as well. It is the factfinder who decides
"what really happened," and it is the judge who
applies the law to the facts as determined by the
factfinder, whether directly or by giving instructions to
the jury.
Absent an award of summary judgment (or some other type
of pretrial dismissal), a lawsuit will ordinarily proceed
to trial, which is an opportunity for each party to
present evidence in an attempt to persuade the factfinder
that such party is saying "what really
happened," and that, under the judge's view of
applicable law, such party should prevail.
The necessary steps before a case can get to trial
include disclosing documents to the opponent by
discovery, showing the other side the evidence, often in
the form of witness statements. This process is lengthy,
and can be difficult and costly.
A party moving (applying) for summary judgment is
attempting to eliminate its risk of losing at trial, and
possibly avoid having to go through discovery, by
demonstrating to the judge, by sworn statements and
documentary evidence, that there are no material
issues of fact remaining to be tried. If there's
nothing for the jury to decide, then, the moving party
asks rhetorically, why have a trial? The moving party
will also attempt to persuade the court that the
undisputed material facts require judgment to be entered
in favor of the moving party. In many jurisdictions, a
party moving for summary judgment takes the risk that,
although the judge may agree there are no material issues
of fact remaining for trial, the judge may also find that
it is the non-moving party who is entitled to judgment as
a matter of law.
Motion for Summary
Judgment
A motion for summary judgment must be
filed with supporting evidence. Thus, the party bringing
the motion must have conducted discovery and/or submitted
evidence to the court, following the applicable rules of
evidence. Typically, the party bringing the motion will
have filed a Request for Admissions, asking the opposing
party to admit or deny certain facts. Witness testimony
or documents received from expert witnesses must be
accompanied by an affidavit from the witness, otherwise
it will be treated as hearsay. The moving party must also
cite the specific rules of law being argued. For example,
if the moving party claims breach of contract, then the
section(s) of the Business Code that define breach must
be cited; this assumes, of course, that the opposing
party has admitted a contract did exist. If not, then the
moving party must also provide evidence and cite the
appropriate law to prove a contract did exist.
Also keep in mind that the Rules of
Evidence and Rules of Civil Procedure are very particular
about how documents are formed. For example, some states
require each claim to be in a separate paragraph and that
all paragraphs be numbered.
Summary Judgment in Federal
Courts
In federal district courts, summary
judgment can be awarded by the court prior to trial,
effectively holding that no trial will be necessary.
Issuance of summary judgment can be based only upon the
court's finding that:
- there are no issues of
"material" fact requiring a trial for
their resolution, and
- in applying the law to the
undisputed facts, one party is clearly entitled
to judgment.
A party making a motion for summary
judgment (or making any other motion) is called a
"moving party." A "material fact" is
one which, depending upon what the factfinder believes
"really happened," could lead to judgment in
favor of one party, rather than the other. A simple
example of summary judgment is provided below.
A plaintiff may move for summary judgment in its favor on
any cause of action, and similarly, a defendant may move
for summary judgment in its favor on any affirmative
defense, but in either case, must produce evidence in
support of each and every essential element of the claim
or defense (as it would have to do at trial). To be
successful, such motions must be drafted as written
previews of a party's entire case-in-chief (that it would
put before the finder of fact at trial) because all parts
of an entire claim or defense are at issue.
A different and very common tactic is where a defendant
moves for summary judgment in its favor on a plaintiff's
cause of action. The key difference is that in this
latter situation, the defendant need only attack one
essential element of the plaintiff's claim. A finding
that the plaintiff cannot prove one essential element of
its claim necessarily renders all other elements
immaterial and results in an immediate grant of summary
judgment to the defendant. Therefore, these motions tend
to be precisely targeted to the weakest points of the
plaintiff's case. It is also possible for a plaintiff to
move for summary judgment in its favor on a defendant's
affirmative defense, but those motions are very rare.
A party moving for summary judgment may refer to any
evidence that would be admissible if there were to be a
trial, such as, depositions, party admissions, documents
received during discovery (such as contracts, emails,
letters, and certified government documents). Each party
may present to the court its view of applicable law by
submitting a legal memorandum in support of, or in
opposition to, the motion. The court may allow for oral
argument of the lawyers, generally where the judge wishes
to question the lawyers on issues in the case.
Summary judgment is awarded if the undisputed facts and
the law make it clear that it would be impossible for one
party to prevail if the matter were to proceed to trial.
The court must consider all materials in the light most
favorable to the party opposing the motion for summary
judgment.
If a trial could result in the jury (or judge in a bench
trial) deciding in favor of the party opposing the
motion, then summary judgment is inappropriate. A
decision granting summary judgment can be appealed
without delay. A decision denying summary judgment
ordinarily cannot be immediately appealed; instead, the
case continues on its normal course. In United States
federal courts, a denial of summary judgment cannot be
appealed until final resolution of the whole case,
because of the requirements of 28 U.S.C. § 1291 and 28
U.S.C. § 1292 (the final judgment rule).
In order to defeat a motion for summary judgment, the
non-moving party only has to show substantial evidence
that a dispute of material facts exists, regardless of
the strength of that evidence. For example, if one side
on a summary judgment motion can produce the evidence of
"a dozen bishops", and the other side only has
the testimony of a known liar, then summary judgment is
not appropriate. Deciding on the relative credibility of
witnesses is a question for trial.
Where appropriate, a court may award summary judgment
upon less than all claims, known as "partial summary
judgment."
It is not uncommon for summary judgments of lower U.S.
courts in complex cases to be overturned on appeal. A
grant of summary judgment is reviewed "de novo"
(meaning, without deference to the views of the trial
judge) both as to the determination that there is no
remaining genuine issue of material fact and that the
prevailing party was entitled to judgment as a matter of
law.
A motion for summary judgment in United States District
Court is governed by Rule 56 of the Federal Rules of
Civil Procedure. Other pretrial motions, such as a
"motion for judgment on the pleadings" or a
"motion to dismiss for failure to state a claim upon
which relief may be granted," can be converted by
the judge to motions for summary judgment, if matters
outside the pleadings are presented to – and not
excluded by – the trial-court judge.
State Court Practice
Summary judgment practice in most
states is similar to federal practice, though with minor
differences. For example, the U.S. state of California
requires the moving party to actually present evidence
rather than merely refer to evidence. See Aguilar v.
Atlantic Richfield Co., 25 Cal. 4th 826 (2001). This is
done by attaching relevant documents and by summarizing
all relevant factual points within those documents in a
separate statement of facts. In turn, the record to be
reviewed by the judge can be very large; for example, the
Aguilar case involved a record of about 18,400 pages.
Also, California uses the term "summary
adjudication" instead of "partial summary
judgment." There is currently a conflict between the
different districts of the California Courts of Appeal as
to the availability of summary adjudication; most
superior courts tend to side with the narrowest
interpretation of California Code of Civil Procedure
section 437c, under which a party may make such a motion
only with respect to an entire cause of action, an
affirmative defense, or a claim for punitive damages.
There is also language in section 437c about "issues
of duty," but some Courts of Appeal panels have
given that phrase an extremely narrow interpretation due
to evidence that the California State Legislature has
been trying to stop the state courts from engaging in the
piecemeal adjudication of individual issues.
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