For the defense bar, a motion for summary judgment can be an incredibly effective litigation tool. The successful motion puts an immediate end to a matter before trial, can limit the issues in dispute, or can provoke more reasonable settlement discussions. The MSJ unclogs dockets and saves litigants and courts time, effort, and money. But statistics suggest that MSJ’s are rarely granted and are often expensive to prepare. So defense practitioners should be asking themselves: is this the appropriate case to file an MSJ? The following tips may help in your analysis.
The client should be involved in the process of considering whether to file an MSJ. While there is no explicit ethical duty to obtain client consent before pursuing a dispositive motion, there is a duty to keep the client informed and to allow the client to make informed decisions. With these duties in mind, it is important to recognize that filing a MSJ may not always make sense.
There is some evidence to suggest that judges are generally reluctant to grant summary judgment motions. Indeed, summary judgment is a drastic remedy, as it precludes litigants from the presenting claims to a fact-finder. One of the more recent studies on the subject found that MSJs were granted more often in civil rights cases, and concluded that contract and tort cases had uniformly low summary judgment rates, with a likelihood of success of less than 10%. By contrast, at least one study found that summary judgment is granted in the majority of Title VII actions, such as those involving equal pay and employment discrimination.
Further, if utilized carelessly, summary judgment, as a “trial on paper”, can give your opponent an early view of your case, theories, and strategy. Also, if the motion is unsuccessful, your adversary may become emboldened by the court’s “quasi approval” of the case, thus increasing her settlement demands.
Because each case – the facts, parties, budget, counsel, forum, and judge – is unique, you cannot predict whether you will prevail on summary judgment. Nevertheless, planning and careful thought about a MSJ even in the nascent stages of a case will increase your chances of success and an informed client. Below are some tips to consider before filing a MSJ:
- Think early. Have summary judgment in mind early and throughout the litigation. Identify those issues that are likely to be the focus of the motion for summary judgment, become familiar with the case law and statutory provisions that will govern those issues, and then frame discovery requests and deposition strategy with those standards in mind. Use such discovery to build the record needed to support the motion.
- Think often. Deciding whether to file a MSJ is a process that you should re-visit throughout the litigation. Ask yourself: “Should we win?’ and “Can we win?” If there is a slim chance of success, you may want to hold off on filing to avoid “tipping your hand” to your opponent.
- Consider the client. Review all of the pros and cons with the client. Be honest about your chances of success. Remember, the preparation of a MSJ often involves a great deal of time and fees. However, if you believe you have a reasonable chance of success, explain that the expense of a trial may dwarf the cost of preparing the motion. Your client may view this as worth the time and effort.
- Consider the judge. Look for ways to gauge the judge’s interest. If you are lucky, the judge will indicate her views regarding the prospects for summary judgment if she has enough information about the case.
- Consider your opponent. An unsuccessful summary judgment bid may increase your adversary’s confidence and have an undesirable effect on her settlement position. Further, deciding not to file the motion may deprive opposing counsel of the ability to use the pending motion as leverage with an unrealistic client, needlessly protracting the litigation.