Appealing from a summary judgment

Finding a motion for summary judgment in your mailbox usually produces a certain amount of stress.  It may mean that you will be interrupting your well-planned (and tight) schedule by putting aside a large block of time devoted to opposing the motion.  Or it could mean that now you have to scramble to find an expert who will review your case and submit a declaration opposing the motion.  Or it reminds you of the discovery you put aside and now must tackle.

I am always surprised that attorneys are surprised (and unprepared) when they are served with motions for summary judgment.  From the date you are first retained, you should anticipate a motion for summary judgment as part of the litigation process and plan on  how you will oppose it.  While once carefully scrutinized and disfavored by trial courts, motions for summary judgment are increasingly being granted as a means of ridding busy courtrooms of cases that don’t require a trial to determine the winner.  We see them in cases that were on track for trial, such as medical malpractice or wrongful termination cases. A plaintiff’s attorney should not ignore the possibility of receiving a motion for summary judgment and should not be placed in the position of hunting down declarations, especially expert declarations that require a review of documents, while the clock is ticking.

As an appellate attorney, I have observed many errors committed both by the moving and opposing party.  Unfortunately, the parties often delay in seeking appellate consultation until after all the papers are filed and the hearing is concluded.  By then, it is often too late.  Some lawyers are now taking a more thorough approach by consulting with an appellate attorney before any papers are filed.  That is wise planning on their part because summary judgments make up a large percentage of appeals.

In this post and future posts, let’s consider the mistakes that are made by the moving party in preparing and filing a motion for summary judgment:

1. Don’t forget to tell a story with a beginning, middle and end. Some attorneys suffer from tunnel vision when it comes to their cases.  They have lived with their cases for months, even years, and may be thoroughly familiar with the facts.  But now you are dealing with someone – a judge with an enormous caseload – who doesn’t know your case.  Don’t focus on a breach without describing the contract, and don’t focus on the injuries a plaintiff sustained without first setting the scene, including the cause of the accident.  The motion, from the Introduction to the Statement of Facts to the Conclusion, must present a story that answers the questions and leads the reader to the inescapable conclusion that the opposing party can’t point to the existence of one triable issue of material fact, can't prove one element of a cause of action or can't defeat an affirmative defense.  When you are on appeal, you want your motion to present the story – the entire story – and not leave anything out.  The court of appeal has less familiarity with the case and the parties, and no judge or justice likes to feel that they are only seeing one piece of a big puzzle.