Tuesday, January 23, 2007

Summary Judgment Motion as a Discovery Tool

Let me give credit where credit is due. Back in 1982 I started my own practice right out of school, essentially following the plan outlined in the book "How To Go Directly Into Solo Law Practice Without Missing A Meal", by Gerald Singer. I will talk about this in another blog entry, but besides all the practical business and marketing advice in that book, he also gave the practical tip of using summary judgment motions as a discovery tool.

Summary judgment motions are useful for a few reasons:

1. Sometimes you win them.

2. Sometimes you get hit with a cross-motion and you lose, but better now than later. Incidentally, if the case is such that bringing a motion might end up with a cross-motion and a loss, don't make the motion.

3. You force your opponent to "lay his cards on the table". When you are on the receiving end of a summary judgment motion, do you take it lightly and put in a minimal response? Of course not, you want to make sure you defeat it, usually by raising "questions of fact". This is done by coming forth with Affidavits from persons with knowledge of the case, and documentary evidence. These are the exact things you get at a deposition or through written discovery demands. A sworn Affidavit from your adversary "locks him in" to a position, and can be used at trial for impeachment. Your opponent is no different than you....he will come forward with as detailed a response as he can. By making the motion, you bring forth his proof.

4. If you make the summary judgment and are not successful, because there are "questions of fact requiring a trial", your case is still alive and you are way ahead of the game. You have gotten "free" discovery and flushed out their position. You didn't have to pay a court reporter either.

5. Sometimes summary judgment motions get settlement discussions going. It forces the other side to address some serious attorneys fees, and it forces them to look at their evidence more carefully. Most Civil lawsuits are not actually that complicated, factually, its often a matter of the facts not really being exposed for both attorneys to look at. Once this happens, the case can often get into settlement mode.

6. Summary judgment motions force you to look at the legal bases for your claim. Of course you should have done this at the beginning, and your instincts at the beginning were probably right, but the research you do for your summary judgment motion also get you ready for the legal issues at trial, and for the proof you will need later.

I welcome comments from attorneys about this approach.

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