The cost of moving, the odds of winning, and the risks of losing.
Summary judgment is a pre-trial, usually late-discovery or post-discovery motion in which the moving party or parties seek a ruling that the admissible evidence shows there is “no triable issue of material fact” in dispute, judgment, and therefore no reason for a trial. It is governed by the Federal Rule of Civil Procedure 56 and similar state statutes.
Summary judgment has been called a “powerful weapon for defendants.” Although plaintiffs may also bring these motions, as we will see later, this is much more difficult, and defendants bring more than two-thirds of motions under Rule 56.
Summary judgment is brought in 19% of cases. In just over a third of these, a second summary judgment motion is made.
Criticism of Summary Judgment
Although the summary judgment motion is an accepted part of daily motion practice in both state and federal courts, it does have its critics. Numerous commentators argue that it is an unconstitutional violation of the Seventh Amendment right to a jury trial. (Despite the academic arguments, this author has found no case so holding.)
Summary judgment is also blamed for over-investment in discovery, and it is claimed that the courts grant summary judgment too often. Proponents say that summary judgment clarifies the issues, eliminates non-meritorious cases, and allows judges to do more than referee motions.
The Difficulty of Obtaining Summary Judgment
Summary judgment is basically a trial on paper and must be based on admissible evidence. Such evidence must be viewed in the light most favorable to the non-moving party. Further, any doubts must be resolved in favor of the non-moving party.
This makes summary judgment difficult, not only because the supporting evidence is subject to any number of technical objections the movant must guard against and respond to, but because any conflict over a material fact (that is, a fact that could lead to liability) which is such that a reasonable factfinder could reach a verdict for the nonmoving party will defeat the motion because at least that fact must be resolved by trial.
It is easy to see that there will be a drive to find witnesses (expert, party-affiliated, or otherwise) who will contradict any truly damaging facts that emerge during discovery.
Even the existence of a single genuine material factual dispute will defeat a full summary judgment motion. The inadmissibility of a key piece of evidence is equally determinative, which explains the often burdensome and intense evidentiary attacks relating to these motions, in which every conceivable objection to the evidence is raised.
A moving party may bring either a full or partial summary judgment motion. A full-motion attacks each cause of action and disposes of the entire case if successful. A partial motion attacks only certain claims, defenses, or items of damages.
It streamlines the issues for trial but does not eliminate the need for one. Some state statutes refer to partial summary judgment as summary adjudication.
Often, parties will seek full or partial summary judgment in the alternative. That is, if they fail to get rid of the case, they will ask the court to pare it down.
The showing required for summary judgment differs depending on whether it is offensive or defensive. Most such motions are brought by defendants. In order to achieve full summary judgment, a defendant must show that it is impossible, given the state of the evidence, for the plaintiff to establish at least one element of each cause of action.
Alternatively, the existence of a dispositive affirmative defense, such as the statute of limitations, must be established.
About a third of summary judgment motions is offensive, that is, brought by the plaintiff to establish the existence of all facts needed to prove a cause of action. It is much more difficult for plaintiffs to win this type of summary judgment. Rather than knocking out a single element to doom a cause of action, like a defendant, every element of each claim as to which the plaintiff wishes to achieve summary judgment must be proven by admissible evidence.
Defensive motions seek to show the evidence cannot support a claim, whereas offensive motions bear the much heavier burden of showing that they must, as a matter of law. It is much easier to find one flaw than to build an unassailable case.
Building a Summary Judgment Motion
To fully understand the burden, expense, and difficulty summary judgment motions place on lawyers, clients, and the courts, it is necessary to briefly review what it takes to create or oppose one. The necessary analysis begins at the beginning, with the complaint. Since federal pleading standards do not generally require detailed factual information in the complaint, demanding only a “short, plain statement of the facts (FRCP 8), the causes of action need to be broken down into their elements, and discovery done to determine what facts existed to support (or disprove) each of them.
To be fair, these things would have to be done no matter what form the litigation took. But breaking down the claims, defenses, and/or items of damages into their elements, then evaluating the evidence for and against the existence of those elements, is the essence of summary judgment just as it would be for trial preparation.
If undisputed evidence demonstrates either that an element of one or more claims, defenses, or items of damage cannot be established, or that all of the relevant elements have been shown as a matter of law, summary judgment is appropriate. The non-moving party must identify specific evidence sufficient to convince a reasonable jury that conflicts with the allegedly indisputable facts supporting the motion. This process requires all counsel to be intimately familiar with the pleadings and evidence on which each side’s case depends.
So that the court need not comb through the evidence, local rules require movants to provide statements of uncontroverted facts and conclusions of law, with citations to the evidence. Non-moving parties must provide statements of material facts in dispute, also with citations to the record. Since the court need only consider cited evidence, prudent parties are thorough in their review of discovery.
And since all evidence must be admissible, parties must support their submissions with declarations properly authenticating each piece of evidence carefully. Voluminous objections are common. But parties are advised to avoid objections that obviously have no merit, both because they lessen the impact of valid objections and because the courts may view them as a sanctionable waste of its limited resources.
All of the detailed review and analysis involved in building a summary judgment motion takes time, which predictably comes at a high cost for moving and non-moving parties alike.
How Much Does Summary Judgment Cost?
Despite the difficulty and expense associated with the use of summary judgment, and the arguments against it, Chief Justice William Rehnquist was convinced the procedure should be a routine part of federal practice:
Although some discoveries might be undertaken solely in support of or opposition to summary judgment, generally discovery will be done regardless of whether such a motion is brought. Therefore, the cost of pre-motion should not be included in the estimate of motion-related charges despite its critical role in the ultimate outcome.
Even so, there is no denying that motions for summary judgment represent a significant investment. The cost of motion will vary by the type of case, the complexity of the issues, the amount of discovery that must be reviewed and analyzed, the hourly legal fee being charged, and so on. But some estimates are available. One study by Duke University found that summary judgment increased costs by 27 percent for defendants and 24 percent for plaintiffs.
What this means in hours and/or dollars will vary from case to case and depend on other factors as well, but we can get a sense from available research.
For example, section 230 of the Telecommunications Act shields internet service providers from civil liability for the publication of content created by others. By one estimate, an early summary judgment motion will cost between $30,000 and $70,000 not including discovery, which was estimated at between $100,000 and $500,000.
In an examination of fee awards in Federal ERISA cases, it was found that courts awarded almost $30,000 when a summary has been brought, at a relatively low $350 per hour for attorneys’ fees.
Then there is the notoriously expensive example of patent litigation by so-called non-practicing entities, or “patent trolls,” which make money not by producing goods, but by aggregating patents and aggressively suing for infringement. A 2014 study found that the median cost of such a case where summary judgment was brought was $2.1 million. Adjusted for inflation, that is equal to $2.8 million today.
If the Duke study is correct, $700,000 or so is attributable to the summary judgment motion.
What about less costly cases? The median cost of legal fees for summary judgment in real property cases is $15,360, in Title VII discrimination cases, it is $17,300, for tort cases, it is $11,540, for contract disputes it is $13,440 and for professional malpractice claims, it is $25,540. (All figures have been adjusted for inflation.)
The cost increases in proportion to how much is at stake. For every 1%, the amount at stake rises, Litigation costs increase 1/4 of one percent. Delay is even more costly.
Every 1% increase in time leads to a 1/3% increase in costs.
This is especially significant in the time to make some rejected process. Depending on which study is consulted, it takes between four and six months for the parties to exchange motions, oppositions, and reply briefs, and between four and nine months for the court to decide the outcome.
Cases Inappropriate for Summary Judgment
The summary judgment appears to be a normal part of almost every federal court civil case. Two-thirds of federal judges in a national survey call summary judgment a daily occurrence. In contrast, only one-third of state judges make the same statement
The apparently routine nature of Federal summary judgment motions is confusing. Such machines are only supposed to be graded when having a trial would be pointless, because there are no genuine issues of material fact to be tried. That is, as a matter of law, no reasonable jury could find for the non-moving party.
Traditionally, some types of cases are presumed to be inappropriate for summary judgment. Nevertheless, such motions are brought despite the difficulty, delay, and expense. As one recent article put it, “Summary judgment does not fit in all cases.
That may seem obvious, but many attorneys appear to start from the assumption that they will file a summary judgment motion the summary judgment in negligence cases is rarely appropriate because jurors have special expertise in the application of the reasonable person standard.
In cases involving fraud, malice, and other issues concerning the state of mind of a party, summary judgment is disfavored. The fact-finder needs to test the credibility of the witnesses whose state of mind is at issue through direct and cross-examination.
A good example of a case involving a state of mind is employment discrimination. The presence of discriminatory intent is a factual question that is difficult to establish with certainty, and therefore not appropriate for summary judgment
What Are The Odds of Winning Summary Judgment?
Despite having reached a “high water mark” of summary judgments, and the liberalization of some rules that give judges more discretion to grant summary judgment, by determining that no reasonable jury could find for the non-moving party, the overall proportion of cases resolved by summary judgment is only 4%, down from 7.8% half a century ago.
The odds of winning a summary judgment, known as the grant rate, vary widely by case type. The most common grant of summary judgment is in Title VII and employment cases. These are granted in whole in 49.2% of cases, in part in 23.3% of cases, and denied in 27.5% of cases.
The extremely high grant rate is peculiar because most discrimination cases turn on intent, which is usually inappropriate for resolution by summary judgment. Some commentary argues that discrimination and employment cases are unfairly disfavored. They point out that the Plaintiffs’ successful summary judgment motions are reversed on appeal 41% of the time.
Defendants’ motions are reversed only 9% of the time. This seems inequitable but given the vastly different burden plaintiffs bear on summary judgment, no conclusions can be drawn from the difference.
Torts also are theoretically inappropriate for summary judgment. Reasonableness is at their core and is traditionally a jury question. Nevertheless, personal injury summary judgment motions are granted in whole in 41.8% of cases, in part in 14.8% of cases, and denied in 43.4% of cases.
Summary judgment motions in personal property torts-related cases are granted in whole in 48.6% of cases, in part in 19% of cases, and denied in 32.4% of cases.
Cases concerning property rights are granted in whole in 33.7% of cases, in part in 24.5% of cases, and denied in 41.8% of cases.
Summary judgment in real property cases is granted in whole in 51.9% of cases, in part in 18.5% of cases, and denied in 29.6% of cases.
Summary judgment regarding miscellaneous statutory rights is granted in whole in 40.3% of cases, in part in 19.9% of cases, and denied in 39.8% of cases.
Summary judgment in labor law cases is granted in whole in 36.2% of cases, in part in 23.8% of cases, and denied in 40% of cases.
In contract cases, summary judgment is granted in whole in 35.1% of cases, in part in 22.6% of cases, and denied in 42.3% of cases.
An awareness of the odds of winning summary judgment will affect a party’s willingness to undertake the extra work and expense inherent in these motions. Given the extremely high chance of total or partial success, it is not surprising that summary judgment motions are most common in Title VII and employment cases. Although this author is not aware of such a study, it is likely that there is a strong correlation between the statistics set forth above regarding the odds of winning summary judgment and the frequency of filing such motions within the various case categories.
Settlement issues in summary judgment
It may not seem to make sense to talk about settlement and some engagement together. After all, so much work has been done .to get the case thrown out.
But it makes a lot of sense. Fifty-five percent of summary judgment motions are resolved by settlement before a hearing.
As with trial or arbitration, or even major discovery, the risk of loss or significant cost focuses the parties on the pros and cons of continuing litigation. As we have seen, the cost for such motions is anything but negligible. Even right before summary judgment may be a good time for settlement discussions or mediation.
After initial filings, these strengths and weaknesses of the case are laid bare, making that another excellent chance for resolution of the dispute. If summary judgment is denied, a court has necessarily found a reasonable jury could hold for a non-movant. Research demonstrates that this creates a significant settlement premium, usually two to four times the prior demand, but potentially much more.
Suppose summary judgment of the right to punitive damages is denied and left to the jury. Constitutionally, up to nine times, a verdict may be imposed. This changes the settlement calculations considerably. Of course, many parties will refuse to consider their behavior worthy of such damages as a matter of principle.
While no one wants to negotiate from a position of weakness, a grant of the motion is not necessarily the end. Motions for reconsideration and a new trial are available, and summary judgment is often reversed on appeal. These options carry serious costs and risks.
They present another opportunity for settlement. However, the offer may be limited to nuisance value without some respected neutral weighing in on the merits of the case and the odds of winning a reversal on appeal. Even with such assistance, overcoming a recently victorious client’s new aggressive attitude will be difficult with all but the most sophisticated and pragmatic parties.
Risks and drawbacks of summary judgment motions
Some significant drawbacks and risks exist in every summary judgment motion. Settlement premiums and hard-fought appeals represent serious financial burdens. One-third of federal summary judgment motions are brought before the discovery cutoff date.
New discoveries may make the motion impossible to win. Since it will be directed to the specific points of the motion, it may well require new analysis and complete redrafting of the motion. Even if discovery is closed, a motion to reopen it may be successful, especially if the moving party has been delaying or refusing responses and there have been successful motions to compel in the past.
This will add noticeably to cost and probably moot a pending summary judgment motion.
Since summary judgment is a bench trial on paper in all but name, the moving party cannot help but expose a detailed trial strategy, evidentiary objections, and the court’s reaction to certain arguments. At the very least, a successful non-movant has a roadmap to strengthen their case before the trial.
Some summary judgment motions may point out defects in the pleadings. This should not be done unless the defects absolutely cannot be remedied. Federal Rule 15 requires the court to freely allow amendments to pleadings before, during, and even after trial when justice so requires.
Late amendments usually require continuances, responsive pleadings, and new discoveries. Attack defects in the pleadings early.
It has been argued that summary judgment motions are sometimes used as a scare tactic or economic weapon against less well-funded parties. Beware this approach. It may draw a sanctions motion under Rule 11 rather than the hoped-for dismissal or cheap settlement. Courts are jealous of their own limited time and resources, as well as protective of the integrity of the legal system.
Courts have imposed hundreds of thousands of dollars in sanctions for poorly supported summary judgment motions. If a full motion cannot be supported, counsel should consider a partial one, if the remaining claims, defenses, or damages to be attacked are important enough given the cost and the lower odds of winning.
Should you file a summary judgment motion?
Whether you should file a summary judgment motion is a case-by-case decision that will change over time. Some factors to consider are:
- The stage of the proceedings. Early motions motivate discovery. This will likely moot the motion.
- The state of the pleadings and their role in the motion. Unless any highlighted defects are irreparable. Otherwise, your opponent will simply take advantage of the liberal standards of Rule 15 and amend his or her way out of the mess.
- The state of your own case. Opposing counsel may decide to fight fire with fire and file a cross-motion of his or her own.
- The amount of discovery. More discovery — especially electronic discovery—drives up the burden and costs of preparation.
- The likely cost of preparation given the research above and the specific facts of your case.
- The odds of winning, as shown by research and realistically adjusted for the particular circumstances of the case.
- Whether a full motion is supported, or a partial motion is preferable given the risk of sanctions.
- The cost of failure in light of the settlement premium.
- Whether mediation should be attempted before the high cost of summary judgment is incurred.
Given that most summary judgment motions are resolved by settlement and the extremely high cost of the settlement premium, the answer should almost always be yes.
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