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.” See an explanation of this rule.
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
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  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.