In this latest 5 Minute Legal Master video, Board Certified Creditors’ Rights attorney, Nicholas D. Krawec, talks about motions for summary judgment.
Motion for Summary Judgment Transcript
Motion for summary judgment are probably not very well understood by a lot of plaintiff’s in litigation. Obviously a suit has been filed and defendant filed and answer raising some factual issues. I have many clients come to me and tell me what the all these allegations there they’re simply false. That’s not what happened we have a number of witnesses that can refute everything this defendant and sayings answer. Can’t we move for summary judgment on this because simply just wrong.
The short answer that question is no. False statements, perhaps more accurately inaccurate statements, or the ability of the plaintiff to produce witnesses to rebut those statements, do not give rise to a basis for an immediate motion for summary judgment. You gotta think about the standard for summary judgment. A Motion for summary judgment is a legal “so what?” Meaning even if everything that the opposing party claims is true so what?
Even admitting the facts stated by the opposing party, we are still entitled to summary judgment as a matter of law for the relief we have requested because there are no real genuine issues as to any material fact and we are in title to judgment as a matter of law.
Now the example I gave to be at the outset of this discussion, inaccurate allegations made by the defendant, witnesses being available to refute, that same determination as a matter of fact which requires a trial. Hopefully in the trial the trier of fact one of that fact is that judge alone or jury believes your witnesses and disbelieves the defendant or defendant’s witnesses. But a motion for summary judgment is determination by the judge as a matter of law that you are entitled to the relief you requested without the need of going through the time expense or the trial.
Now how is the basis for summary judgment determined? The first thing your attorney should look at when you should look at when the attorney reports to you about the answer that it’s filed the lawsuit is what admissions have been made by the defendant in the answer of those files.
Now these admissions where the fan of responses to respond to your claims they established facts that are not in dispute. Secondly, if we take a look at the defendant’s affirmative defenses that are being alleged and is there a need to refute them as a matter of law. Third, and probably most important from a summary judgment standpoint, is you are going to have to engage in pretrial discovery which is another topic that some one of our legal master presentations. You can make it effective use of written discovery is such as request for admissions to have the defendant admit to the truth of certain facts. If the defendant denies certain fact you can follow that with the interrogatories and see if you deny that request for admission tell us what you claim the facts to be.
Perhaps most effective in trying to set up matter for motion for summary judgment is to take the deposition of the defendant and grill the defendant question defendant intensely about the defenses that he’s asserting or the allegation that he’s made in the counter claim and hopefully through that testimony established the really is no factual dispute. Once you establish there’s no factual disputes based on the written discovery and the admissions you’ve been able to obtain, only then can a motion for summary judgment be sought.
That you can move for summary judgment obviously for the claim that is set forth in your complaint. You can move for summary judgment as to the defendants counterclaim. If the defendant has determined that things didn’t try to file a counterclaim to try to get some leverage against you. File a motion for summary judgment as to both but keep in mind the key thing that is the defendant filed a counterclaim as means of trying to intimidate you or leverage of mutual dismissal out of you and you’re able to get summary judgment dismissing counterclaim, he lost a lot of leverage.
The other thing that you can use the summary judgment process for is to limit the issues for trial. Sometimes summary judgment may not be rendered for all the relief that you have requested. That’s often referred to as a partial summary judgment perhaps you may be able to obtain summary judgment as the liability and the trial is limited only to the amount of damages or the judge can enter an order setting for the facts which are no longer genuinely disputed as a result of the admissions in the answer and the information developed through discovery.
Summary judgment as you can see is not an easy process. All the opposing party has to do is show that there’s a genuine issue of fact for trial and you can try to overcome that through appropriate use of discovery whether it’s written depositions. Thank you very much.