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Ten commandments of summary judgment practice
1.
THE TEN
COMMANDMENTS OF SUMMARY JUDGMENT PRACTICE J. Bradford McCullough Lerch, Early & Brewer, Chtd. www.lerchearly.com November 12, 2012
2.
Summary judgment is
a powerful weapon It can end a case in its entirety It can strip away portions of the case It can alter the course and contours of the case It is a frequently used tool There are certain fundamental principles that apply – “Ten Commandments” 2 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
3.
1. Have summary
judgment in mind from outset of case and throughout case. The possibility of summary judgment should be considered at the outset. Some types of cases are very well suited for summary disposition. Know the issues that are likely to be the focus. Know the applicable substantive legal standards. Tailor written discovery and depositions 3 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
4.
2. Keep in
mind proper timing of motion for summary judgment. Traditionally, most motions are filed after discovery is complete. In some cases, an earlier motion might be appropriate. For example, statute of limitations may apply. Or some other affirmative defense may be established. 4 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
5.
3. Have a
theme and a focus. Just as you should have a theme for trial, you should have a theme for summary judgment. The facts and the law should be presented in the context of a story or narrative. Give the judge a basis for ruling for you. But also make the judge want to rule for you. Avoid the “shotgun” approach. 5 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
6.
4. Know the
rules. Different jurisdictions have different rules. Federal district courts have local rules. For example, does the moving party have to submit a statement of material facts that are not in dispute? 6 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
7.
5. Know the
judge. Does the judge have his or her own “rules?” Standing Orders Informal preferences What has the judge previously said? 7 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
8.
6. Keep it
simple. As the moving party, avoid the temptation to look too creative or innovative. As the moving party, there is nothing novel about your case. Courts grant summary judgment in “straight forward” cases, but not in “complicated” ones. As the opposing party, your case is complicated. As the opposing party, do you need discovery? 8 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
9.
7. Consider partial
summary judgment. Fed. R. Civ. P. 56 (a) and Md. Rule 2-501 (a) The judge might be more receptive to a motion for partial summary judgment. Remember, be focused – no shotguns. “Pigs get fed, hogs get slaughtered.” 9 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
10.
8. Remember the
beauty of brevity. Less is generally more. Judges are busy – get to the point. Enough said. 10 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
11.
9. Tone it
down: Persuasive is not the same as argumentative. Do not overdo the rhetoric and do not overplay your hand. Avoid personal attacks, invective, and ad hominem arguments. Avoid adjectives and adverbs. 11 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
12.
10. Responding? Consider
a cross-motion for summary judgment. Sometimes the appropriate response includes a cross-motion for summary judgment. Sometimes the best defense is a good offense. Is a formal cross-motion needed? See Md. Rule 2-501 (f); compare Fed. R. Civ. P. 56 (a). 12 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
13.
Conclusion Motions for
summary judgment are powerful weapons that are frequently used in contemporary civil litigation. Careful attention to the applicable rules, together with knowledge of the substantive law, provides the foundation for analyzing the availability of summary judgment. 13 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
14.
Speaker
J. Bradford McCullough is a commercial and business litigator, appellate attorney, and chair of Lerch, Early & Brewer’s appellate practice. Brad is listed in Best Lawyers in America and Super Lawyers in the field of commercial litigation. (301) 657-0734 jbmccullough@ lerchearly.com 14 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
15.
For more information
Lerch, Early & Brewer, Chtd. 3 Bethesda Metro Center, Suite 460 Bethesda, MD 20814 (301) 986-1300 www.lerchearly.com Thank you for your participation 15 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
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