One of the most terrifying challenges for a pro se litigant comes in defeating summary judgment. One minute you’re cruising along, handling discovery or pre-trial motions. In the next, you’re preparing to survive the upcoming hearing, one that could end the case with a judgment against you.
When you find yourself in court without a lawyer, it’s easy to believe you can tough it out on your own. There’s lots of legal info online. It’s just a matter of choosing the right procedures and using the right legalese in your motions.
How hard can it be, right? With all due respect to lawyers, they don’t always appear to be the smartest lightbulbs in the knife drawer.
And so we muddle through motion after response after hearing, and so on. That is until we’re served the dreaded motion for summary judgment.
A quick Google search tells us that our opponent believes she can win the case without going to trial. Her motion lists a number of facts she claims are undisputed, and she cites case law that purports to support a judgment on those facts.
Another Google search returns 12,721 articles with advice on defeating summary judgment. Every lawyer has a different strategy. But who has time to review them all and choose the best one?
But this advice is not from me. You see, the best part of my job at Courtroom5 is learning from our members. I don’t know everything about litigation, but collectively, our members come pretty close. When Courtroom5 members get the tools needed to handle their cases — and share what they’ve learned with others — we go much farther together than we ever could alone.
In that vein, our member Lezlie dug up a great resource on defeating summary judgment. We felt this 5-step guide from attorney Gordon Ralph Levinson was worth sharing widely, so here goes:
- Attack the Legal Argument. The summary judgment motion must argue that the law requires judgment for the moving party, assuming the undisputed facts are true. So the opposition to summary judgment should start by attacking that argument. Review the cases and other legal authorities cited by the moving party, and show with your own legal research that the law requires no such thing.
- Attack the Evidence. The summary judgment motion must cite to evidence in the record that proves the essential facts necessary to a judgment. Your opposition should attack the admissibility of that evidence. Some evidence may be irrelevant, or privileged, or unauthenticated. If the court would sustain your objection at trial, then it would likewise sustain your objection at a summary judgment hearing. There are many objections available, but you must state your objections on the record, in your response.
- Attack the Facts. The summary judgment motion must contain a statement of the undisputed facts the court would rely upon in granting judgment. Your opposition should point to at least one factual dispute, something a judge or jury would weigh evidence to determine in deciding the case. It’s not enough to simply say in your response that you disagree with a fact; you must dispute it with evidence, even if that evidence is your own affidavit.
- Argue an Unmet Legal Burden. The moving party on a summary judgment motion has the burden of proving (a) that no genuine dispute exists on the material facts in the case, and (b) that the law demands judgment on those undisputed facts. Every opposition to summary judgment should state plainly that the burden has not been met, and therefore no response is necessary. While this argument is rarely sufficient on its own, it frames and strengthens the arguments above.
- Request Time for More Discovery. The summary judgment motion is often filed when discovery is either paused or concluded. But with the court’s permission, discovery may continue until each side has all the evidence needed for a full airing of the facts. Even if you feel one of the arguments above is a winner, your response should nevertheless request a continuance to collect more evidence. Outline the additional answers or documents you plan to seek. Better yet, attach your discovery request as an exhibit to your response.
You want to throw everything you have into defeating summary judgment. Any of the first four arguments, if successful, would defeat the motion. However, it’s important that your response use all of them.
That’s because any doubt about the facts or law supporting summary judgment will likely persuade your judge to err on the side of caution and deny the motion. But doubt is often cumulative, gathered piecemeal. Paraphrasing the Buddha,
Drop by drop is the water pot filled. Likewise, the wise man, gathering it little by little, fills his judge with doubt.
Thanks, Lezlie, for digging up this fabulous short guide. It’s sure to give more pro se litigants a fair shot at getting their cases to trial.