Ten commandments of summary judgment practice

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The document outlines 10 fundamental principles or "commandments" for effective summary judgment practice. It recommends (1) considering summary judgment from the outset of a case, (2) properly timing motions, and (3) having a clear theme and focus. It also stresses (4) knowing applicable rules, (5) the presiding judge's preferences, (6) keeping arguments simple, (7) considering partial summary judgment, and (8) brevity. Finally, it advises (9) using a persuasive rather than argumentative tone and (10) considering a cross-motion for summary judgment in response.

Business

THE TEN
COMMANDMENTS OF
SUMMARY JUDGMENT
PRACTICE

J. Bradford McCullough

Lerch, Early & Brewer, Chtd.
www.lerchearly.com November 12, 2012

Summary judgment is a powerful
weapon
It can end a case in its entirety
It can strip away portions of the case
It can alter the course and contours of the
case
It is a frequently used tool
There are certain fundamental principles
that apply – “Ten Commandments”
2
© Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

1. Have summary judgment in mind
from outset of case and throughout
case.
 The possibility of summary judgment
should be considered at the outset.
 Some types of cases are very well suited
for summary disposition.
 Know the issues that are likely to be the
focus.
 Know the applicable substantive legal
standards.
 Tailor written discovery and depositions
3 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

2. Keep in mind proper timing
of motion for summary judgment.
 Traditionally, most motions are filed after
discovery is complete.
 In some cases, an earlier motion might be
appropriate.
 For example, statute of limitations may
apply.
 Or some other affirmative defense may be
established.

4 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

3. Have a theme and a focus.

 Just as you should have a theme for trial,
you should have a theme for summary
judgment.
 The facts and the law should be
presented in the context of a story or
narrative.
 Give the judge a basis for ruling for you.
 But also make the judge want to rule for
you.
 Avoid the “shotgun” approach.
5 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

4. Know the rules.

 Different jurisdictions have different rules.
 Federal district courts have local rules.
 For example, does the moving party have
to submit a statement of material facts
that are not in dispute?

6 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

5. Know the judge.

 Does the judge have his or her own
“rules?”
 Standing Orders
 Informal preferences
 What has the judge previously said?

7 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

6. Keep it simple.

 As the moving party, avoid the temptation to
look too creative or innovative.
 As the moving party, there is nothing novel
about your case.
 Courts grant summary judgment in “straight
forward” cases, but not in “complicated” ones.
 As the opposing party, your case is complicated.
 As the opposing party, do you need discovery?

8 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

7. Consider partial summary
judgment.
 Fed. R. Civ. P. 56 (a) and Md. Rule 2-501
(a)
 The judge might be more receptive to a
motion for partial summary judgment.
 Remember, be focused – no shotguns.
 “Pigs get fed, hogs get slaughtered.”

9 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

8. Remember the beauty of brevity.

 Less is generally more.
 Judges are busy – get to the point.
 Enough said.

10 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

9. Tone it down: Persuasive is not
the same as argumentative.
 Do not overdo the rhetoric and do not
overplay your hand.
 Avoid personal attacks, invective, and ad
hominem arguments.
 Avoid adjectives and adverbs.

11 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

10. Responding? Consider a
cross-motion for summary judgment.
 Sometimes the appropriate response
includes a cross-motion for summary
judgment.
 Sometimes the best defense is a good
offense.
 Is a formal cross-motion needed? See
Md. Rule 2-501 (f); compare Fed. R. Civ.
P. 56 (a).

12 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

Conclusion

 Motions for summary judgment are
powerful weapons that are frequently
used in contemporary civil litigation.
 Careful attention to the applicable rules,
together with knowledge of the
substantive law, provides the foundation
for analyzing the availability of summary
judgment.

13 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

Speaker

J. Bradford McCullough is a
commercial and business litigator,
appellate attorney, and chair of Lerch,
Early & Brewer’s appellate practice.
Brad is listed in Best Lawyers in
America and Super Lawyers in the
field of commercial litigation.
(301) 657-0734
jbmccullough@ lerchearly.com
14 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

For more information

Lerch, Early & Brewer, Chtd.
3 Bethesda Metro Center, Suite 460
Bethesda, MD 20814
(301) 986-1300
www.lerchearly.com
Thank you for your participation

15 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

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