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Summary Judgment -- the Intersection of Legal Writing and Trial Practice

by David L. Lee

Otto von Bismarck, the great Prussian and German Chancellor of the last half of the 19th Century, believed that the only people who learned from their own mistakes were fools. Smart people, he said, learned from the mistakes of others. So, smart reader, let me offer you a mistake of mine to learn from:

Many years ago, I attended an ABA National Institute on Appellate Practice. As part of the Institute, the attendees were given a canned appeal to argue orally before panels of real federal judges. The canned appeal I argued was the grant of a summary judgment on an alleged contract. The question was: did a written "agreement in principle", when combined with the subsequent actions of the parties, amount to a contract? The “record “ was about 25 or 30 pages long. I studied the record, mastered the facts, planned my argument to uphold the trial court’s grant of summary judgment, and went in the next morning to argue before a panel of federal appellate judges, whose sole purposes would be to show off, make my life miserable, and give me feedback.

I thought I did well and, when the argument ended, awaited the judges’ feedback, expecting to be praised. Instead, what a disaster! The judges didn’t like my strategy, they didn’t like my style, they didn’t like me, and I don’t think they were too crazy about my parents, either. But one series of comments really stood out: my frequent references to the record (in defense of summary judgment) had persuaded the judges that there must have an issue of fact there after all. Summary judgment reversed!

The moral of this story for purposes of this article is: a summary judgment motion is a paper trial, but one of a very special sort. My mistake was ignoring that the issue being tried is not what are the facts, but are there any material facts that are genuinely disputed. The basic (albeit unarticulated) principle is that the movant cannot be in a better position on summary judgment than he or she would be at trial. Thus, the opponent of summary judgment gets the benefit of all reasonable inferences and need only persuade the judge that some reasonable factfinder — who need not be the judge deciding the motion — could find in his or her favor, etc.1

As I discovered in my sad story, summary-judgment motions, by virtue of their location at the intersection of legal writing and trial practice, give rise to an unusual mix of litigation strategy and legal writing tactics. To discuss some of the strategic points first:

  • As the potential movant, consider the downsides of moving for summary judgment:

    A summary-judgment motion may seem riskless, but that is not so. Bringing a summary-judgment motion is a major strategic decision, with upsides and downsides. Thus, before bringing a summary-judgment motion, a lawyer ought to consider at least the following:

  • Putting your opponent in his or her best possible procedural posture:

    When Jon Tomes, former Professor of Legal Writing at IIT Chicago-Kent College of Law, was a military judge, there would from time-to-time be a court-martial in which the defense had a good motion for directed verdict at the close of the prosecution's case. When the defense attorney made the motion, Jon would roll his eyes and say, in a dubious voice, "Well, I guess drawing every reasonable inference on this motion in favor of the prosecution, some reasonable fact-finder could find that the prosecution established its case."

    According to Jon, this was his clue as a judge for the defense counsel to rest without putting on a case. When and if the defense did so, Jon was then able to say, "Fine. I find the prosecution's witnesses not credible and that the defendant has not been proven guilty beyond a reasonable doubt".

    The point is that, although winning is better than losing, and lawyers like to win as early as possible, of course, not all victories are created equal. A summary-judgment victory puts your opponent in the best possible procedural posture for an appeal, with the facts reviewed de novo, the opponent getting the benefit of all reasonable inferences, etc. If you have a really strong case, and trial will not be too long, too expensive, etc., consider whether a trial victory would not be preferable to a summary-judgment victory. Certainly, it would be more bullet-proof.

  • Creating bad law of the case:

    By the same token, you could lose summary judgment and create bad law of the case for yourself. For example, suppose the judge denied summary judgment because a reasonable jury could infer certain ultimate facts from certain evidence. Your opponent could use that finding in a jury-instruction conference ("As Your Honor ruled in denying summary judgment, the jury can infer this. All this instruction does is tell them that that inference is permissible"), in closing argument, in arguing against a motion for judgment as a matter or law, etc.

  • Giving your opponent a psychological victory:

    Even if you don't create bad law of the case, a denial of summary judgment could give your opponent a much-needed psychological lift. Suppose, for example, the case is in settlement negotiations. An opponent facing the threat of a decent summary-judgment motion may be more willing to settle or may settle for less. Once you bring and lose the summary-judgment motion, however, the opposing attorney may see less reason to make settlement concessions -- and the opposing party (not understanding the legal niceties) may think that the judge has said that he or she will win. You lost all value of the potential motion for summary judgment hanging over the other side's case. As chess players say, the threat is stronger than the execution.

  • Creating impeachment against yourself:

    Whenever you submit new materials (such as affidavits ) in support of a summary-judgment motion, you are creating potential impeachment. Even if the statements in the affidavit are not a problem, there is always the possibility of impeachment by omission.

  • Boomerang summary judgment motions:

    A summary-judgment motion may move your opponent to file a cross-motion. Even worse, the judge may enter summary judgment or partial summary judgment against you. See, Federal Rule of Civil Procedure 56(d); Illinois Code of Civil Procedure 2-1005(d). Compare, Rivera-Flores v. Puerto Rico Telephone Co., 64 F.3d 742 at 747-48 (1st Cir. 1995) (discussing FRCP 56(d)).

  • Bad-faith or frivolous summary-judgment motions:

    There some areas of the law (like employment-discrimination) in which summary-judgment motions are almost always brought, but, even in those areas, not all summary-judgment motions are good. The rules have provisions for bad­faith affidavits [Federal Rule of Civil Procedure 56(g); Illinois Code of Civil Procedure §2-1005(f)]. In addition, representing that there are no undisputed issues of fact, when it is obvious that there are some, is sanctionable. Goka v. Bobbitt, 862 F.2d 646 at 650 (7th Cir. 1988).

  • As the opponent, consider bringing a cross-motion:

    As the opponent of summary judgment, always consider whether or not you have a good cross-motion. Breach of contract cases, for example, are fertile grounds for cross-motions for summary judgment. In addition, as noted above, boomerang rulings are possible. If one seems likely, ask the judge for a boomerang ruling.

  • In discovery, plan for potentially bringing or opposing a motion for summary judgment:

    There's a lot to say about discovery, of course, but here are two points that should be considered in all potential summary-judgment cases:

  • As a potential movant or opponent, consider the effect of Requests for Admissions:

    A recent Compleat Legal Writer column I wrote dealt with Requests for Admissions from the perspective of how to draft them. This, however, is how to use them. Matters admitted in response to a Request for Admission are conclusively admitted for purposes of the case, so Requests for Admissions can go a long way to show that there are no material, undisputed facts.

    It works the other way too, however. The potential opponent of summary judgment can send Request for Admissions. If the Requests are admitted, they can be agreed facts that oppose summary judgment. Even more diabolical, however, is the situation in which the potential movant on summary judgment denies the Requests for Admissions. There can be nothing quite as devastating to a Motion for Summary Judgment as page after page of the movant's denial of Requests for Admissions. All the opponent of summary judgment need do then is persuade the judge that some or all of the requested admissions were material, because they were obviously contested -- the movant said so when he or she denied the Requests!

  • As a potential opponent, consider whether to rehabilitate a deponent:

    This may seem somewhat afield from legal writing, but it comes up in drafting affidavits: there is a doctrine that an opponent of summary judgment cannot create a genuine issue of material fact by submitting an affidavit that contradicts his or her own deposition. (This doctrine seems contrary to the basic principle that the movant on a summary-judgment motion cannot be in as good a position as at trial, because at trial the deposition would just be impeachment, not conclusive, but the idea seems to be that it's just too easy and tempting to file a contradictory -- and probably false -- affidavit.) We'll discuss what to do from the legal-writing side when we discuss drafting affidavits, but from the strategic side, always consider whether your witness needs to be rehabilitated on a point that some judge somewhere sometime might consider to be "contradicted" by the witness's deposition if presented in an affidavit.

    Once you have decided to bring a summary-judgment motion or have had one brought against you, then the legal-writing side becomes crucial. Among the legal-writing techniques are:

  • Read the Rules (and the local rules) on summary judgment:

    The rules on summary judgment date back to the adoption of civil procedure rules. Those rules, therefore, contain some provisions that may seem out of date or unnecessary today, but are still important. For example, some courts interpret the reference in the Rules to summary judgment being based on "pleadings, depositions, answers to interrogatories, and admissions on file" [see, Federal Rule of Civil Procedure 56(c) (emphasis added); Illinois Code of Civil Procedure § 2-1105(c) is the same, except it deletes the reference to "answers to interrogatories"] to mean that the depositions must have actually been filed with the clerk. See, Idea Tool and Manufacturing Co. v. One Three Six Inc., 682 N.E. 2d 437 (1st Dist. 1997). Similarly, Federal Rule of Civil Procedure 56(c) requires that the motion be served ten days before the date of the hearing (which is a longer notice period than the general one for motions). Some courts have held that the motion for summary judgment can be struck if this 10-day period is not strictly observed. In addition, there is the point discussed about "boomerang" summary-judgment motions.

    In addition, the local rules are becoming more and more important. The Northern District of Illinois's 12M/12N procedure should be well-known, except the Seventh Circuit keeps affirming summary judgments in which the opponent did not file a 12N statement, thereby admitting that all the facts against him were true. One such case that came out as I was writing this article is Dade v. Sherwin-Williams Co., 128 F.3d 1135 (7th Cir. 1997.)

  • Make the statement of facts primary:

    Summary judgment is a fact motion, and the statement of facts is therefore primary. Unless the facts are stipulated, persuading the judge that there is only one view of the facts that a reasonable fact-finder could reach or, conversely, that there is more than one view, is virtually the whole ballgame.

    There is, of course, the problem that many judges share the well-known human failing of confusing themselves with all reasonable factfinders. Therefore, persuading the judge that your view of the facts is right can be an important avenue to persuading the judge to make the leap from his or her own view to the view of the hypothetical reasonable factfinders.

    I've written many Compleat Legal Writer columns about making factual arguments. Everything said there applies to summary-judgment motions in spades.

  • As the movant, avoid credibility arguments; as the opponent, raise them:

    Almost any summary-judgment decision begins its legal analysis with the boilerplate that matters of credibility are not to be decided on summary judgment. (Sometimes, the decision says this and then goes and decides every credibility matter in the case!) The courts have done a poor job, however, of distinguishing among different types of credibility issues. The lawyers on a summary-judgment motion, however, can do better by identifying the various types of credibility issues and avoiding them (if the movant) or arguing them (if the opponent).

  • Credibility as conflicting facts:

    Sometimes, the courts use credibility to mean a conflict in facts. That is, one side has one story, and the other side has a different story. In this situation, the movant should simply try to demonstrate that no reasonable fact-finder could find the other version of the facts. The movant should definitely not refer to the (from its point of view) non-existent conflict as "credibility" and should obviously avoid traditional credibility arguments, such as that its witnesses were in a better position to hear or see, that the opponent's witness was impeached, that its witness was corroborated, etc.

    The opponent of summary judgment, on the other hand, can and should take every opportunity to demonstrate that the fact-finder will have to make just these sort of credibility determinations in order to find the facts.

  • Credibility as impeachment of an otherwise uncontradicted witness:

    This is the purest and toughest type of credibility. What if one of the movant's witnesses is uncontradicted, but could be impeached by materials that have nothing to do with the facts testified to (a recent perjury conviction, for example)? Surprisingly few cases analyze this situation, but some do. For example, one old (and almost forgotten) Seventh Circuit opinion reversed summary judgment when a deponent either forgot or did not know that he was an officer of a party-corporation, thus raising issues of credibility for the jury. American Securit Company v. Hamilton Glass Company, 254 F.2d 889 (7th Cir. 1958). As the Seventh Circuit explained:

    "[M]atters going to the weight to be given the testimony of the various witnesses are peculiarly germane to a trial. At least it could be argued that the testimony of a man, who is a vice-president of a corporation and either does not know it or forgot it, should be weighed in the scales and not perfunctorily given face value."

  • Id. at 894. See also, Eisbach v. Jo-Carroll Electric Cooperative, Inc., 440 F.2d 1171 (7th Cir. 1971), in which the Seventh Circuit reversed a grant of summary judgment because a counter-affidavit contained a prior inconsistent statement to that in a deposition relied on by the movant, thereby creating an issue of credibility for the jury. Id. at 1172-73.

    The opponent should argue such impeachment to a judge in the paper trial of summary judgment just as it would argue that impeachment to a jury in the real, live trial. Quote jury instructions, and emphasize that the fact-finder would be entitled to disbelieve the facts.

  • As the movant, beware of evidentiary objections; as the opponent, raise them:

    Again, summary judgment is a paper trial. Facts, therefore, must be such as would be admissible in evidence (except for being presented in a form permitted by the summary-judgment rules, such as by affidavit). See, Federal Rule of Civil Procedure 56(e), Illinois Supreme Court Rule 191(a). The movant, therefore, must give as much attention to the evidentiary basis of his or her facts as if on trial. By the same token, the opponent of summary judgment should make evidentiary objections and/or move to strike.2 Because there is no jury to prejudice, the objection can be more elaborate than at trial -- more like a sidebar than a bare objection.

  • As the opponent of summary judgment, invoke presumptions and argue them:

    The opponent of summary judgment receives the benefit of many presumptions, most notably the presumption that all reasonable inferences run in his or her favor.

    It is not very persuasive, however, and is often insufficient to simply invoke the presumption. Rather, just like at trial, the presumption should be argued. How does the inference arise? Why is it reasonable? How could a jury use it? To see how to and how not to argue presumptions, read these two recent Seventh Circuit employment­discrimination cases: Rand v. CF Industries, Inc., 42 F.3d 1139 at 1146 (7th Cir. 1994) (not enough to argue that jury may disbelieve summary-judgment witnesses as liars); Dey v. Colt Const. & Development Co., 28 F.3d 1446 at 1458-59 (7th Cir. 1994) (summary judgment reversed on chain of inferences linking persons with knowledge to decision maker through presence at same meetings, etc., along with conflict in testimony raising possibility that one witness was lying by his denial of plaintiff's allegation, which led to possibility that jury could disbelieve all of that witness's testimony).

    Because these presumptions go to what a jury could do, be sure that your legal research looks not only at cases on summary judgment but also at jury instructions and at cases upholding jury verdicts or overturning jnov's or judgments as a matter of law.

  • Make it easy for the judge

    This should go without saying, but all your summary-judgment materials should be neatly organized, with exhibits marked and easy to find (tabbed, etc.). Binding is always nice. Citations to your summary-judgment materials should be clear and obvious. Don't make the judge hunt through a six-inch thick stack of materials to find a quote. Having the judge throw your materials at the wall in frustration is not the reaction you want.

  • Consider the appellate record:

    You may want to put materials in the record just in case it becomes relevant on appeal. You may not want to put it in your statement of facts or in your brief, but just to be in your evidentiary materials in cases you need to pull out a cite later. For protective reasons, you can usually anticipate putting in your evidentiary materials (even if not cited to in the brief) evidence establishing jurisdiction, timeliness, citizenship (if important), etc. If you're familiar with the area of the law or the predilections of the appellate court, you may also put in materials on hot topics, pet peeves, etc.

  • Draft your affidavits and choose your affiants like you were preparing for trial:

    The most important document in bringing or opposing a summary judgment motion is usually the affidavit of your client (or your client's responsible agent or employee) or, should you be so lucky, a favorable, non-party witness on the crucial point. Drafting such affidavits are probably the clearest example of the intersection of legal writing and trial practice, because what you are really doing is presenting a series of short direct examinations on paper. With that in mind, remember the following points:

  • Think about to what extent you need and want this witness to testify

    Any time you call a witness at trial, you're putting your head on the block, and the same is true for filing an affidavit supporting or opposing a summary judgment motion. You may think that an affidavit would not blow up like a live witness, but that's not totally true. Your drafting the affidavit does, of course, give you some protection, but there are many ways for an affidavit to blow-up on the motion (e.g., the other side may persuade the judge to let them depose your client, who may then say something stupid) or at trial (e.g., you may have created impeachment against yourself). Before you decide to present a witness by affidavit, think carefully, just like at trial, if you really need and want this witness. There may be another, less risky method of presenting the same evidence, such as a document, an admission in a pleading or in response to a Request for Admission, etc.

  • Think about what witnesses you want to use

    Another area in which drafting affidavits on summary judgment presents a question of trial-tactics is in the choice of witnesses. Just as it is at trial, on summary judgment, the choice of witnesses can be crucial. One witness may be impeachable, another witness may be good on one point but poor on another. As noted above, choosing one witness may open that witness to a deposition, while another witness may have already been deposed and, therefore, the judge may be less inclined to permit a further deposition of that witness. In short, the choice of witnesses in moving for or opposing summary judgment contains many of the same points as the choice of witnesses at trial, and the decision should be analyzed similarly.

  • Draft like you were drafting the essence of a direct exam in a bench trial

    Because your affidavit is really a short direct examination, it should be drafted as one. All the skills that make a direct examination interesting and pointed should be used in the affidavit.

  • Use witnesses, not lawyers, as your affiants

    Believe it or not, in some areas of the country, the custom is for lawyers to draft long affidavits for themselves, rather than using witnesses. Although to lawyers in those areas, this is normal procedure, it is also wrong. Whenever possible, use real witnesses, not lawyers.

  • Try to make your affiants sound like themselves

    We all know that the affidavits are drafted by lawyers, but, too often, that fact is simply thrown in our faces. Affidavits from ten witnesses, all in the same words, and affidavits that sound like lawyers, not witnesses, are all too common.

    The older practitioners did not do it this way. In many autobiographies, collections of war stories, and histories, the practitioners of last century and the first half of this century made clear that they tried to capture the witnesses voices in the affidavits, often drafting and redrafting "because it doesn't sound like Joe".

    Emulate this approach. Especially if you have a series of affiants, having them all sound exactly the same -- and exactly like a lawyer -- sends the message that the affiants cannot speak for themselves. Like using all leading questions on a direct examination, this creates the subliminal impression that the witness is untrustworthy and, if not closely confined by the lawyer, may say something stupid. In addition, at a later jury trial, you don't want your affiant to admit that he testified in the case not using his or her own words, but "something my lawyer wrote".

    Finally, remember the saying about "a foolish consistency". Your affiants do not have to all use the same words. They wouldn't do so at trial, and they shouldn't do so in affidavits moving for or opposing summary judgment. Make the affidavits consistent, but do not make them slavish imitations of each other.

  • Take care not to create impeachment or impeachment by omission

    Here's where an affidavit can really come back to bite you. There's nothing like drafting a great affidavit for (or in opposition to) summary judgment, only to have that affidavit used as impeachment against your witness at trial. When that happens, you'll find out that "well, my lawyer wrote that and told me to sign it" is not much of an answer.

    Creating direct impeachment against yourself is embarassing, of course, but can usually be avoided with some thought. Perhaps the more dangerous situation is creating impeachment by omission. Who knows whether some judge or jury sometime in the future may think that your affiant should have also sworn to the truth of something that was not in the affidavit and that the affiant is therefore impeached by omission? Guard against an impeachment by omission by drafting the affidavit to state that there are other examples that are being omitted for the sake of brevity, that the examples are not all-inclusive, that looking at records may show additional instances, etc.

Remember -- summary judgment is a paper trial, and a good lawyer must use not only legal-writing skills, but also trial skills.

1For purposes of this discussion, we’ll put to one side those motions for summary judgment that are pure law motions, that is, motions for summary judgment in which the parties agree on the facts and the inferences to be drawn from the facts, probably by means of a comprehensive stipulation, and disagree only on the legal conclusions to be drawn from those facts and inferences. This type of summary judgment motion is virtually a bench trial on stipulated facts and is not what I want to discuss in this article.

2To any judges or members of rules committees who may be reading: As it stands now, the procedure for making evidentiary objections to an opponent's submission is totally unclear. Is an objection sufficient? Is a motion to strike required and, if it is, does the motion to strike need to be motioned up separately, etc. A suggestion: set forth in the summary-judgment rules a clear and simple procedure for making evidentiary objections. The rules could state, for example, that an objection stating the grounds is sufficient (as at trial) and will be taken under advisement with the motion and ruled upon with the motion, if ruling is relevant or required.

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