Getting Out Before Trial
One of the questions I am often asked is whether there is any way to avoid trial, in a case that cannot be settled, or which for some reason you don’t want to settle. “This is a dumb case – can’t the judge just throw it out?” Like any answer in law, the answer is maybe. No, the court cannot just dismiss a case because it’s dumb. But there is a procedure which can be used to cut it short – a Motion for Summary Judgment.
Any motion asks the court to make a decision on something, but a summary judgment motion asks the judge to decide that the other side has no claims or defenses which require a trial. Traditionally, a summary judgment requires that the court find that there are “no genuine issues as to any material fact,” and therefore one party is entitled to a judgment as a matter of law. Although this is not an easy standard to meet, it’s not impossible, either.
Since the purpose of a trial is to allow the judge or jury to hear conflicting evidence, if there is no real conflict in the evidence, a summary judgment is proper. What it requires is that you demonstrate to the court that the important facts are not disputed; you’ll basically be telling the court, “Here are the facts that everyone agrees to, and under these facts, I win.” For instance, the plaintiff has filed suit to collect money on a contract, but waited more than 4 years to do so. The plaintiff has waited too long to file suit, since the statute of limitations on a contract is 4 years. If there is no dispute about when payment was due, a summary judgment motion would point this out to the court, along with the date the suit was filed, and cite the statute limiting the plaintiff to only 4 years. In this situation, the fact that there is a dispute between the parties as to whether the debt should have been paid doesn’t matter – those aren’t material facts in applying the statute of limitations. A complicated dispute has just been simplified.
A motion for summary judgment may be used by either a plaintiff or a defendant, since sometimes defendants raise disputes which don’t matter. For instance, in the same contract case, if the defendant admitted the amount was due and unpaid, but claimed he should have been given more time to pay because of an employee stole from him, those facts are not relevant to whether the debt is due. The plaintiff could obtain a summary judgment against the defendant, awarding the amount due and avoiding trial.
Due to a recent change in the rules, there is also a new type of summary judgment which can be granted, called a “no evidence” summary judgment. In this type, the moving party does not have to show that the facts are undisputed, but only that the other party has no evidence with which to back up their claims or defenses. Although the rule allows this type of motion to be filed by either party, as a practical matter it was created primarily for, and used primarily by, defendants in personal injury actions to require the plaintiff to present at least part of their proof before trial or be dismissed.
Before filing a summary judgment, it is usually advisable to do at least some written discovery -ask questions to the other side to determine what they claim the facts to be. You don’t want to file the motion thinking you know what the allegations are, only to be surprised when the other side “shifts” on you. I always prefer nailing them down to one version first, making it more likely that the court will grant the motion, and avoiding wasting time and credibility in a motion that can be avoided.
When a summary judgment motion is filed, all of the evidence on which the party wants the court to rely must be attached to the motion. This usually includes affidavits, answers to written discovery, documents produced by the parties, and excerpts from deposition testimony. The responding party must be given 21 days notice before the motion can be considered by the court, and their response must be filed at least 7 days before the hearing date. The response, likewise will have attached to it all of the evidence the party wants the court to consider. At the hearing, the court can listen to the arguments of the lawyers, but cannot receive any evidence that has not been timely submitted.
Properly prepared, summary judgment can be a formidable weapon against a dumb lawsuit, or a frivolous defense. If you think it may apply to your case, call your favorite lawyer.
