By Thomas M. O'Toole
Many legal scholars have argued that litigation in the United States has undergone a "shift from trial-centered to motion-centered adjudication."1 Yet, the termination rate of litigation by summary judgment hovers around only 4–5 percent according to data from some federal districts. This low success rate is a common source of frustration since parties frequently devote significant time and resources to summary judgment.
This article focuses on the role of the attorney and how the attorney's case presentation through briefing and oral argument influences the likelihood of whole or partial success at summary judgment. Even when termination of the litigation through summary judgment is not achieved, partial summary judgment can still significantly change the value of the case, thereby increasing the likelihood of a favorable settlement.
A key issue that can undermine effective preparation for summary judgment is attorneys' beliefs about the difference between judges and jurors. No matter how often some notable judge lectures attorneys on the fundamentals of human persuasion and basic writing, there continues to be a belief among many attorneys that judges hold some special power for logic and reasoning that excels well beyond that of the ordinary person.
The shortsightedness of this belief cannot be overstated. The famous study by Kalven and Ziesel that examined judges' and jurors' case leanings showed alignment between the two in approximately 86 percent of cases. Those are remarkably similar leanings for groups of folks believed to be so fundamentally different in their decision-making processes.
The reality is that judges are people, too. They get bored, confused, frustrated, angry, distracted, excited and interested like any other decision maker. To presume their decision-making processes are not constrained by fundamentally human characteristics is misguided. Consequently, the focus on capturing interest, providing psychological satisfaction through thematic frameworks and language, and simple organizational patterns in briefing and oral argument is as crucial as in a jury trial.
Strategies for Effective Summary Judgment Motions
Persuasive strategy development begins with an audience-centered approach to communication and presentation. The following 12 tips emphasize the above focal points as well as establishing and maintaining credibility and motivating the judge to want to find in your favor, combined with a theme that persuasively sets forth the tools to justify a ruling in favor of your client.
1. Recognize your audience. Judges are incredibly busy with overwhelming caseloads. This has important implications for the judge who is reading your brief.
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