A lawyer competing with a pro se litigant expects to win in one of two ways: by your default or failure to prosecute, or through a motion for summary judgment.
Summary judgment means you’ve been beaten without ever having your day in court.
The order essentially says you should never have tried to litigate the case in the first place.
It’s one of our most frequent requests for help at Courtroom5. People want instructions for responding to a motion for summary judgment.
Often a hearing is imminent and our pro se litigant is just beginning to recognize their predicament and the urgent need for help.
Panic is setting in, but there’s often no need to panic. It’s not that hard to defeat the typical motion for summary judgment.
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.
In other words, a robot programmed with the statutes and appellate cases governing that jurisdiction could easily decide the case.
But if you take the standard for summary judgment apart, several ways to defeat it arise.
Consider the following five approaches:
- Show that the motion fails to list the specific facts and law supporting summary judgment. A lazy or sleazy lawyer will submit a motion consisting of boilerplate language from Rule 56, or the state equivalent, with little or no reference to the facts of the case. You can challenge that lack of specifics using your state’s rules of civil procedure on summary judgments.
- Show that a dispute exists on a material fact. A material fact is one that matters to the outcome of a case, like the speed of a car preceding a traffic accident. The disagreement must appear in the record of the case, either in the pleadings or in filed discovery responses. If it’s not, you could file an affidavit to put your facts into the record.
- Show that the law does not support judgment on the undisputed facts. Your legal research may reveal case law that shows judgment isn’t warranted in your case, even when no facts are in dispute.
- Show that discovery is incomplete and could raise a disputed material fact when completed. In many jurisdictions, an unanswered discovery request is grounds for delaying a summary judgment hearing. If necessary, issue a discovery request or move to compel responses to your previous requests. Be sure you can tie your request to material facts in the case.
- If you’re a defendant, show that an affirmative defense remains viable and has not been struck. In many jurisdictions, summary judgment cannot be granted until all affirmative defenses have been decided. If necessary, ask the court for leave to amend your answer to plead an affirmative defense.
As you see, there’s no need to panic when you’re served with a motion for summary judgment. Try to find appellate cases in your state to support one or more of these approaches, and write your opposition to summary judgment on that basis.
It’s possible that none of these approaches will succeed in getting you to trial, but you should consider them all as grounds for opposing the motion.
If you’ve been served with a motion for summary judgment, get a Courtroom5 membership and our summary judgment response journey to respond appropriately. If you need to create a disputed fact, avoid hearsay and state only things you personally saw or heard or did to ensure your affidavit is respected by the court. Be careful not to misstate facts because a judge can sanction you for delaying the case if you do.
Don’t let summary judgment end your case. With a Personal Practice of Law, you’re able to interpret, apply and argue the law every step of the way. You deserve your day in court. Fight for it!
I am the plaintiff in an Alabama civil circuit court suing my county commission.
Facts:
1. Case file in Oct 2018 using an attorney, a writ of mandamus.
2. In Apr. 2023 the attorney filed leave of court, granted, and court labeled me as Pro se on summons to appear. During that May hearing I was granted a continuance to Aug 29, 2023
3. Retained another attorney, subsequently fired him after consuming 6 weeks while doing little. I was subsequently forced to file motion to leave of court to amend my writ because lack of time before the trial.
4. I completed and filed the defense’s years-old interrogatory after the firing.
5.:Since my leave motion and filing the interrogatory, my Aug 29 trial has been converted to a “status” on existing motions.
6. My amended writ and my defense interrogatories will be available to the court and filing during the Aug 29 status hearing.
7. My amended writ contains my affidavit to about 30 exhibits.
8. Relief contains a Declaratory Judgement and about $17k in harm, attorney fees.
9. I plan to file a summary judgement, however timing and strategy is involved.
A. I prefer to file the summary incorporated into my amended writ because the facts, case law, AG opinion, Et. al are already presented – yet to be disputed by defense as he will attempt. Filing the summary now seems as my best option.
B. Or, I will file a separate summary motion after the “”status” hearing and acceptance of the amended writ and exhibits. This option will provide the defense another opportunity to muddy my case. Reading on Summary Judgement here and elsewhere, one of it’s benefits is saving court time.
10. Factoring your courtroom experiences, which option would you consider using under these circumstances.
Thanks for your response.
I was never given counsel blood drawn from unconscious person for charge of APC on private yard of employer completely surrounded by fence with a gate 110 yards off the road with instruction to leave keys in ignition of all trucks and equipment. Filed twice for paupers affidavit, bailiff verbally denied the first the second never addressed but attached documents supporting request on record. Requested verbal twice for counsel during trial on the record. Requested Discovery twice at DA’s office denied. Objected to location of charge as being a public parking lot like Walmart, I was overruled. My Boss owns adjacent RV Park commercial open to the public, that’s the description they claimed. Daley Asphalt is zoned differently and stored only my bosses Asphalt business trucks and equipment. Convicted on the merits, much wrong with case how do I implement new evidence challenging judges error in material fact.
I’m plaintiff in Dodge County Nebraska. Needing to find proper form to file a motion in opposing the summary of judgement statement given to me today. Please help
the sheriffs Dept muredered my 27 yr old son they shot him multiple times in the back while he was running away they lied said he had a gun just like they lied said there was no body cam footage .i did a records request and foia and i recieved worst body cam footage you can possilbly imagine .in footage you hear them say hes running toward the road then few seconds later you hear 10 straight shots and one extra you hear my child yell help me then a deputy yells hot camera and another tells him to walk away then you see my son being dragged through the woods then you see them throw his lifeless body on gurney like trash and if thats not enough they handcuffed my sons dead body on gurney i just recieved a motion for summary judgement i need to know how to present the evidence and to oppose there summary judgement if they see body cam footage it says it all ….please someone help me