10 Reasons Why You Should Appeal A Grant of Summary Judgment

Stop. Don’t let your case end this way. Summary judgment is a big hairy monster lurking in the dark ready to jump out and destroy your case. It doesn’t matter whether you’re a plaintiff or defendant. A grant of summary judgment against you means the other side wins. That’s it. That’s the end of your case – unless you do something about it. Below are ten reasons why you should appeal a grant of summary judgment.

10. If Support for Summary Judgment is Skimpy You Can Defeat It

“Based on Rule 56 of the Federal Rules of Civil Procedure, the widely accepted standard for granting summary judgment is twofold: (1) that no material facts are in dispute, and (2) that the moving party deserves judgment as a matter of law. To grant summary judgment, a court has to find that a trial would be useless because there are no facts for a judge or jury to weigh.”

Did the lawyer for the other side meet the standard above? Unlikely. Far too often, lawyers underestimate the skills of pro se litigants. So, when up against one, they fail to write a proper motion. Instead, they use boilerplate language from a summary judgment statute. They don’t state with particularity why their client is entitled to summary judgment. They don’t prove that there are undisputed material facts. This happens most with wholesale lawyers who go into court with a list of defendants to sue. If a defendant puts up a fight by responding to the complaint, the attorney moves for summary judgment. The short motion might lack any facts about the case. Such a “motion” is weak, skimpy, and very beatable on appeal.

9. Preservation of Error is Not as Much of a Thing

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In so many matters, pro se litigants lose on appeal because they have not preserved an issue. That is, they don’t make an objection at a hearing or at trial. They fail to bring a court reporter to record the judge’s findings, or they do not raise other issues during litigation. So, an issue is considered waived and often can’t be appealed. However, summary judgment is a final order. If you respond properly to the motion and /or show up for the hearing with a court reporter and a fairly decent argument, errors the judge made in granting summary judgment are preserved.

8. A Grant of Summary Judgment is (or Should be) Difficult to Get

Yes, you hear about it all the time. A judge granted summary judgment against someone you know. But if you have a legitimate claim or defense, a summary judgment should be difficult to get against you. Unfortunately, that doesn’t stop biased judges from granting them anyway in favor of a lawyer against a pro se litigant. In that case, do your homework and make a beeline to the appellate court. See reason number 5 below.

7. Lawyers Move for Summary Judgment as a Scare Tactic

One of the biggest bullying tactics lawyers employ against pro se litigants is the threat of summary judgment. If you’re a plaintiff, and the lawyer wasn’t able to have the case dismissed, that means you have a case, and summary judgment is not warranted. If you’re a defendant and the other side has not stricken all of your affirmative defenses or you’ve made it to discovery, chances are a summary judgment motion will be very weak. The problem is that pro se litigants are often so intimidated by the notion itself that they fold easily. Plaintiffs take settlements that do not adequately compensate them for harm done. Defendants pay or agree to pay more than is warranted just to avoid summary judgment. That’s why lawyers move for summary judgment. But you didn’t come to play, so don’t let this tactic work. Appeal an ill-advised grant of summary judgment.

6. Discovery Isn’t Over

Are you done with discovery? In an ideal world, the summary judgment motion is filed after discovery has ended or during a lull in discovery. However, where a pro se litigant is involved, a lawyer may take a gamble and move for summary judgment in the middle of discovery. By doing this, she can quickly end the case. But consider this? How can your opponent meet the requirements in point 10 above without discovery? Discovery could raise disputed facts that are material. Without “facts” and “evidence”, the lack of a genuine issue of material facts is difficult to prove. That’s a great argument to assert on appeal.

5. Grants of Summary Judgment are Often Overturned

Courts don’t like to grant summary judgment. Appellate courts consider summary judgments to be drastic. “This drastic remedy should not be granted where there is any doubt as to the existence of [triable] issues.” Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] This is not just true for this one court or opinion. It’s true across the country. Summary judgment against you means you have no case or no defense whatsoever. This is rarely the case. In an appeal, the judges must review all the evidence in the light most favorable to you, not the person that filed the motion. So, an appellate court will reverse a summary judgment if any kind of a case is shown. In fact, the court must “accept as true the facts” contained in your response and other filings and make all “the reasonable inferences that can be drawn” from them.

4. Your Opponent Has Not Struck Your Affirmative Defenses

If you’re a defendant and asserted affirmative defenses, the plaintiff must strike them all before properly moving for summary judgment. In his motion, he must show that he struck your affirmative defenses or that the affirmative defenses are not viable. If he has not done this, rely heavily on it in your appeal. Chances are, appellate judges will agree with you.

3. You Can Throw Out a Net and See What You Get

You can defeat the grant of summary judgment by presenting a multi-pronged attack. Don’t rely on just lack of discovery (evidence), lack of particularity, or failure to strike affirmative defenses. If you can, point to other weaknesses in your opponent’s motion. Do statutes and cases support their argument? Look it up. There are hundreds, maybe even thousands of appellate cases in every jurisdiction. Are there important motions yet to be heard, like the motion to compel or the motion to strike the affidavit in support of the summary judgment? If so, argue this in your brief. Throw out a net and see what you get.

2. Pro Se Litigants Give Up When They Should Fight

A summary judgment motion should be a gamble, but it’s not. When used against an unprepared pro se litigant, it’s often a winner for the opponent. It’s one of those legal filings that strikes terror in the hearts of pro se litigants–at least those who know what it means. Too many either don’t know what to do to defeat it or simply give up because the task of defeating it seems too daunting. That’s why lawyers threaten pro se litigants with it and file it regularly. Summary judgment is hard to get. Don’t let your opponent frighten you into giving up on your case.

1. You Don’t Want to Always Ask “What if?”

What if I’d appealed that motion for summary judgment? You don’t want to forever ask yourself this question. If you’re a plaintiff, and you feel you have a viable claim, or if as a defendant you have at least one supportable affirmative defense, you might be able to win on appeal. To give yourself the best chance, learn about the requirements for summary judgment in your jurisdiction. When you see it filed against you, work through the fear. Read the statutes, find supporting cases, and make short work of that case killing summary judgment motion. It’s easier than you think to defeat.

Good luck.

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Jennifer Marie
March 30, 2023 6:24 pm

my former lawyer dismissed my landlord and her company case on my behalf by conflicts of interest with prejudice. the landlord BEARS responsible of my safety. how can I reopen the case. It’s been since August 2021.

Reply to  Jennifer Marie
May 5, 2023 7:57 pm

When was the case dismissed? Appeal windows are very short, its 20 days where I am. Unless the issue is waived by the opposing party.

August 1, 2023 5:56 pm

my case was dismissed for improperly noting a wrong defendant. how can i appeal and add a new defendant ?

August 19, 2023 5:35 am

I could really use some legal advice on an eviction. I’m a single mother of 2 and can’t afford a lawyer. I have paid my rent on time every month for the 7years we have lived here. I’m being evicted for not signing my lease and giving it to the landord 1 month after I received it. She has always given it to me months late and I’ve always handed it to her whenever I saw her bc that’s what the note she puts on the lease says. I had not physically seen her to give it to her bc she is never at the office anymore since Covid. I have proof of the dates being all over the place from my 6 previous lease papers. Court is Monday for Motion Summary Judgement. I am waiting to be approved at another apartment and we have nowhere to go in the meantime. My kids start back to school on 8-28 and I don’t know what’s going to happen. Do I have a good argument? What can I do to prove how crazy this all is?

September 9, 2023 12:33 pm

I am a pro se litigant who is NOT one of those easily scared. When the def in my case threatened to file a MSJ, I didn’t panic in the least. I knew she was in a corner after I discovered smoking gun evidence following an affidavit she served that negated my initial argument, an argument predicated on misinformation provided by one of the 2 defs. The catch here is that she served the affidavit within the discovery period BUT 2 years into litigation. So, here I am with this affidavit, I go hunting around to verify it, and boom! I stumble upon the evidence that seals the deal. When I presented it to her under “Continuing Obligation”, and made sure to get it to her prior to mandatory arbitration (a scam), her reaction was the she would fight to keep it out of trial. Obviously, even SHE didn’t think her MSJ would be granted…BUT IT WAS. Also, I had to make 2 motions to compel discovery. The first one was granted. The second one was inexplicably denied. Hence, they got away with meaningfully answering my interrogatories. I was left in the lurch.

So, in sum, the def provides misinformation that becomes the premise upon which I filed my complaint. An affidavit sprung 2 years in changes everything. MSJ filed & granted. Of course, there’s more nuance here like the issue of doctors being given the right by the AMA to opt out of patient advocacy in legal matters (See Medical Code of Ethics sneakily revised in 2004 allowing doctors to decide whether to advocate by changing “should” to some other iffy language.) But overall, this was, as you aptly noted, a case of a biased judge tossing a pro se to the curb. I will be appealing. If that fails? Off to the NJ Supreme. If that fails? I get to live with a permanent injury caused by a faulty product with zero compensation after 5 years of sparring.

Our system is badly broken. My hopes are not high even though I know this should be reversed.

November 8, 2023 7:40 pm

If you lose an Employment lawsuit do you have to pay the devense lawyer

Alonzie Wiggins
December 22, 2023 4:23 pm


Alonzie Wiggins
December 22, 2023 4:25 pm