When you’re new to representing yourself, it’s hard to know when to go for the jugular. Heck, you may not even know there’s a jugular to go for. So you miss opportunities to flatten your opponent. Attorneys, on the other hand, move for summary judgment against pro se litigants regularly, even when they don’t have support for it. It benefits them because it’s intimidating, and it often works.
To get a better grasp of the summary judgment motion, we’ll begin with a scenario.
Jake, who owns a Peterbilt, was injured when he drove his truck off the road to avoid hitting a Hummer. Jake told the officer at the scene that the accident occurred when the Hummer driver, Amanda, pulled into his lane while talking on her smartphone. In the incident report, however, the officer did not assign blame to Amanda, who claimed that Jake lacked control of his vehicle and overcompensated for a curve in the road. Jake’s wife drove him to a hospital where he was treated for his injuries and released. Since blame was not assigned to Amanda, her insurance company refused to pay for Jake’s personal injuries, which amounted to $6221 beyond what his insurance paid. He also paid $1100 out of pocket for the damage to his truck. Jake sued Amanda.
The Goal of a Summary Judgment Motion
Summary judgment is based on a judge’s decision about the merits of a case or claim. The goal of a motion for summary judgment is to prove that there is no dispute on material facts upon which relief may be granted. Material facts are those necessary to prove a claim or defense. Summary judgment reduces complexity of a case by affirming undisputed facts. For Jake to win, all the evidence and undisputed material facts must be on his side.
Do Your Background Work
Background work means determining the facts and collecting evidence to prove them. The judge won’t be swayed if Jake lacks evidence for accusations he makes. To understand the facts of his case, Jake must conduct discovery and investigate. Luckily, Jake has done his work.
Through interrogatories and subpoenaing Amanda’s smartphone records, Jake learned that at the exact time of the accident, Amanda was on her phone. He learned that the phone had no hands free capability, and Amanda was talking to her mother 15 minutes before the accident. She ended the call at the time of the accident. Amanda, he learned, had been ticketed before for driving distracted.
Jake didn’t stop there. He paid for an analysis of the accident and proved that his truck was well beyond the curve in the road when the accident occurred. The report concluded that he was not compensating for the curve when the accident occurred. Amanda didn’t present evidence to dispute these findings. Jake gathered additional supporting information through discovery and moved for summary judgment.
Knock Out Things That Might Weaken the Argument
If an opponent has outstanding discovery, respond and move on.
Jake did not allow documents and other things to be outstanding that could weaken his argument. He answered discovery requests thoroughly without creating a material dispute. When Amanda sent him discovery requests about his injuries, Jake responded with candor and left nothing for her to dispute.
Jake moved to strike each and every one of Amanda’s affirmative defenses. He had is Motion for Summary Judgment waiting to file the minute the hearing on his Motion to Strike was over. As a result, Amanda had less time to challenge the motion and start additional discovery.
List Undisputed Facts
Jake couldn’t simply say, “She did it, and here’s my proof.”
Once he knocked out all the things that might weaken the motion, Jake presented the facts in a way that could persuade the judge that he should win. He began with a list of undisputed material facts. He listed all material facts, even those that appeared to hurt his case, because leaving them out would’ve opened him up to sanctions.
Include an Argument/Memorandum of Law
In his motion, Jake showed with authority that Amanda did not or could not dispute the material facts. After the list of facts, Jake presented a memorandum of law or argument accompanied by supporting cases and statutes. By matching the material facts with case law, he showed in his motion that Amanda was negligent. She couldn’t prove otherwise. This took Jake a long way to getting summary judgment.
Why Jake’s Approach Might Give Him a Win
If Jake can also interweave law with facts to prove that he was not negligent, and Amanda can’t dispute it, he is likely to win. Summary judgment is not about whether someone disagrees with the movant. It’s primarily about whether the person defending themselves against the well-written motion has a genuine dispute on a material fact. If all the facts are in favor of Jake, he wins.
A Checklist for the Motion for Summary Judgment
While writing the motion for summary judgment, create a checklist of things you need to do to win. Below is a general summary judgment checklist for your information.
- Know. Understand the requirements for summary judgment in your jurisdiction, compare the requirements to your set of facts, and adhere to them.
- Gather. Collect evidence through discovery, investigation, and recording of the facts.
- Eliminate. Knock out or strike documents and other things that might weaken your argument.
- List. Make a list of all the facts that you and your opponent agree to, and a list of the assertions that are disputed.
- Cite. Point each material fact on your list to relevant statutes and cases.
- Pair. Match the facts or allegations in support of your motion to pleadings, answers to interrogatories, or other relevant documents. You can also pair the facts with an affidavit or witness testimony.
- Prove. Prove that disputed facts are not material or that your adversary’s statements that are purported to be material are not supported by facts.
- Acknowledge. Take seriously each fact presented by your adversary as fact no matter how frivolous.
- Present. Present precisely the information needed to prove your legal arguments. Keep it simple, concise, and efficient. Complexity increases the number of facts that your opponent can dispute.
- File. File the motion strategically. That is, file it when you’ve cleared up all disputes and no important matter is outstanding.
More brutal than the motion to dismiss, the motion for summary judgment can be the Grim Reaper for a case. While an order on the motion to dismiss might give a plaintiff a chance to “fix” problems, summary judgment does not provide a “do-over”. When it’s done, it’s done. You slay. They die. So, if you feel you have the grounds, go for the jugular. Move for summary judgment.
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