November 2013 Bar Bulletin
The Classic Way Out:
Drafting and Timing Summary Judgment Motions
By Jaime Drozd Allen
Summary judgment can be a quick, easy and relatively inexpensive way to resolve a case. But, summary judgment is not appropriate in every case and the pros and cons of bringing a motion should be considered, along with the timing of any motion.
Strategizing for when and how to move for summary judgment is critical. Summary judgment motions are useful and should at least be considered in every case because they can narrow issues or result in a complete resolution, at least at the trial court level.
Despite obvious advantages, there are downsides to consider before bringing a motion. Decisions on summary judgment are reviewed on appeal de novo, meaning a fresh review by the appellate court of the facts and issues raised in the motion. Summary judgment motions also can:
- develop bad law of the case;
- give a victory and create momentum for the opposing party;
- create impeachment evidence through declarations;
- invoke cross-motions for dismissal or summary judgment;
- highlight the weaknesses of a case; and
- reveal strategy before trial.
Yet, because summary judgment motions are dispositive, the benefit - potential dismissal - usually outweighs these risks. The risks also can be mitigated by the timing of the motion and how it is drafted. Below are some highlights, which by no means are all-inclusive, to think about when drafting a summary judgment motion and deciding when to bring the motion.
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