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Subscribe by EmailDiscourse on summary judgment motions, spilling out after I spent most of the week preparing four of them
It’s finally done. Thursday evening my motions went out fedex for filing on the East Coast Friday.
The four motions were related, for different defendants in one case, but it was still a hairy experience. Each one required a motion, memorandum, and fact statement, so there were 12 separate documents to write, rewrite, edit, proof, etc. Plus a lengthy affidavit, exhibits, and deposition pages.
But I love doing summary judgment motions. Always have, going back to when, as a summer associate in law school, I spent what seemed like half the summer on one.
For the uninitiated, a quick explanation: a summary judgment motion, if successful, wins the case without trial. The judge decides the case based only on the paper record, including depositions, exhibits, affidavits, and the all-important legal brief or memorandum (despite the sound of these words, this document is often not brief or sketchy, but long and meticulously detailed — the main one I did this week almost used up the alloted forty pages).
In employment cases, plaintiffs almost never seek summary judgment; defendants almost always do. Why?
Defendants (employers) have reason to fear going to trial before a jury; they avoid this with summary judgment. Employment law is often quite favorable to employers, but juries often decide cases not by strict application of legal doctrine, but based on whether they think the employee got treated poorly or unfairly. At least that’s what defense lawyers fear. Judges are often quite motivated to avoid having cases go to trial, and we hope they are willing to focus on applying the law when reviewing these motions, even if it means leaving a sympathetic plaintiff out in the cold.
This is particularly important because in my experience the great majority of employment discrimination cases really are just wrongful discharge claims that would fail due to the employment-at-will doctrine, but that happen to involve persons in protected classifications who hope to get their day in court by claiming discrimination. Under the employment-at-will doctrine, most employees not covered by union contracts — which is most about 85% of the workforce — can be fired for a good reason, bad reason, or no reason at all, without legal recourse. This is not understood by, or popular with, many people, so a jury is likely to want to find for a “wrongfully discharged” plaintiff, regardless of whether the evidence establishes discrimination.
So employers want to avoid juries, as a rule. And plaintiffs want to avoid summary judgment. If they have a strong case, they’d rather not seek summary judgment in their favor, but prefer to go to a jury, hoping for the “lawsuit lottery” big punitive damages award.
The standard for summary judgment is deceptively simple: the motion should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment under the law. Put differently, there’s nothing important for a jury to decide and thus no need for trial.
Employment cases always involve issues of fact. People always disagree about various details of pertinent events, sometimes testifying under oath in deposition to radically different versions of events. Aren’t these genuine issues of material fact? How then do employers ever win? (And we do win quite often; the case reporters are full of employment cases with contentious facts in which summary judgment was nevertheless granted for the employer.)
The standard for granting summary judgment, expressed in a brief sentence above, discloses the way to handle the contentious facts: they either don’t involve a “genuine issue” or they are not “material.”
An issue is not genuine if no reasonable jury could buy the plaintiff’s story on it. While credibility determinations are supposed to be for juries, I believe there’s room in the summary judgment for process for showing that a plaintiff’s story is so implausible, inconsistent, and contradicted by others that a reasonable jury would never buy it. So I sometimes confront the uncomfortable facts head on. Even if a judge isn’t comfortable saying the plaintiff’s not believable, if I can show that to be the case, I then need only show the judge a way out — another way to avoid the factual issue. And if I lose the motion, I’ve hopefully warmed the judge up enough to my side of the case to be on the right side of the vast discretion trial judges wield on evidentiary rulings and the like.
One way to help the judge avoid finding a credibility issue that requires trial is to show that the apparently direct conflict between the plaintiff and the management witnesses really isn’t so direct; that the testimony can somehow be reconciled or that there are important areas of agreement. If both witnesses are right and can be viewed as truthful, there’s not a genuine issue. This may require very close reading and rereading of all the evidence.
It may sound implausible to be able to pull this off, but I think most people actually try to be fairly truthful in depositions (if self-serving, nonresponsive and unusually “forgetfull”). As a result, they often avoid direct conflict with the testimony of others, instead hedging, bobbing, weaving, spinning, and nuancing (think Bill Clinton — no, he didn’t have sex with Monica, well not exactly “sex”).
And “I don’t remember” is not the same as “no.” (Actually, they always say “I don’t recall” — who uses that phrase anywhere but in a deposition?) If I say I told you something, and you say you don’t recall if I told you, there’s no genuine issue — the evidence is undisputed that I told you.
The other main trick of the summary judgment trade is arguing that the uncomfortable facts are not “material,” meaning that even if the plaintiff’s version of the disputed fact is true, it doesn’t make any difference. This is where thorough research and knowledge of the law, and careful writing that finesses the discussion of legal principles is so important.
The law books (now virtual books on the Westlaw and Lexis servers, for most lawyers) are full of cases in which judges have ruled particular facts immaterial so they could grant summary judgment. Find them. Study them. Cite them. (Never a naked cite, always use at least a “sound bite” quote or quick “parenthetical” spinning the case your way — but don’t spin too hard or you’ll lose valuable credibility with the judge and his/her clerks.)
Now to the practical task of putting a summary judgment motion together. It can be hard to control and coordinate the evolution of the documents, particularly in jurisdictions requiring a separate fact statement in numbered paragraphs. Yesterday, I was scrambling to update my fact statements to reflect changes in an affidavit, and then put all the paragraph number references from the fact statement in the briefs. Meticulous citation to the record is key to victory, but it takes time.
I recommend involving a paralegal early and intensively in the writing process so he/she can be of maximum assistance with the meticulous documentation. Also, get an early jump on affidavits (however, you still may want last-minute changes as the brief evolves and additional facts become important).
I suggest getting much research done early in the case, despite the expense, rather than doing it only when preparing the motion. This work — and the summary judgment strategy it suggest — is vital to planning discovery, deposition questions, etc. Discovery should be designed not just to generally discover facts and evaluate witnesses, but also to position the case for summary judgment.
Finally, the fact statement deserves at least as much attention as the brief. The judge doesn’t want to just read a buch of legal argument. He/she must evaluate the factual record. You must be the guide. It’s an art to spin the facts (and law) to one’s best advantage without misrepresenting them. “Tell the story” in the fact statement (i.e., keep it flowing naturally). Keep the paragraphs brief (one or two sentences). Chronological order is not always the best organizing principle for a fact statement — but there must be some organizing principle.
Use lots of headings and carefully think out the document’s organization — for both the fact statement and the brief.
Last, but perhaps most importantly: don’t make the mistake of spending many hours of high-priced partner time on depos, and then handing off the summary judgment motion at the last minute to an inexperienced associate unfamiliar with the case — or throwing it together quickly at the last minute. That’s no way to win.
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