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, review our sample opposition to summary judgment and download a template.
If you need to create a disputed fact, see our sample affidavit and template. Avoid hearsay and state only things you personally saw or heard or did to ensure your affidavit is admissible. 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. You deserve your day in court. Fight for it!