A summary judgment motion is usually the last thing a plaintiff and their legal team ever want to see. In effect, a summary judgment is an attempt to stop a claim or case before it goes to trial, generally by supposing that the plaintiff has no legal groundwork or real “cause of action” under their argument.

As a plaintiff’s attorney, summary judgment motions are a real pain in the neck due to the unbalanced risk-reward they represent.

If you win the summary judgment, then you get to do exactly what you were trying to do before the motion was ever filed, which is progress your client’s case towards litigation with a chance of settlement. If you lose, then you can either file for an appeal or tell your client to give up – but who would do that?

With plenty on the line each time a summary judgment motion is filed, what can be done to better your chances?

As Attorney Gordon Levinson discussed in a Trial Bar News article (June/July 2006 edition), fighting and defeating summary judgment motions as a plaintiff’s attorney can become all the easier if you attack the evidence the opposition is bringing to the case.

Is This Summary Judgement Even Allowed?

Each summary judgment motion filed to the court should contain declarations why the case or claim is legally unsustainable. Each of those declarations should be backed by admissible evidence. Only, if you were to review a random selection of summary judgment motion filings throughout the years, odds are high that you would find most of them use broad declarations with no evidential backing.

This is the weak spot in a summary judgment that plaintiff attorneys need to go after with tenacity. If you can show that the evidence behind a declaration should be considered inadmissible, then you can dismantle the inner workings of that motion. In a way, you are telling the motion petitioner, who is arguing that your client’s case is not backed by facts, to back their very own motion with facts. A direct legal counterargument if there ever was one.

KELLEY V. TRUNK & Factual Basis

In the Trial Bar News article, Attorney Levinson cites Kelley v. Trunk to underline the importance of evidential proof behind declarations in summary judgments. In that case, it was held that an expert’s opinion must be considered when determining if a doctor failed to perform his or her duties to acceptable standards of care and that such expert opinions have to be grounded on a specific factual basis.

Dr. Trunk was sued for medical malpractice after a patient’s conditions worsened, despite being evaluated by Trunk. He tried to use a summary judgment to put down the claim, and in so showed that a separate medical expert found no issue with Trunk’s diagnosis and procedures.

But the court found that that expert opinion did not rely on facts. A nonfactual expert opinion is not admissible evidence. Without admissible evidence behind it, the summary judgment was denied.

Opposition To Motion For Summary Judgement

Challenging a summary judgment that does not contain any declarations based on factual evidence should really be a two-pronged attack for you, the plaintiff attorney.

First, as discussed, show that the declarations indeed do not have any admissible evidence behind them.

Second, in accordance to the defendant’s lack of admissible evidence, you can reaffirm that you do not need to submit any evidence to contest the summary judgment. This is the legal professional way of asking, “They didn’t do this, so why should I,” which was backed in Sheiding v. Dinwiddle Const. Co. If you want to be thorough with your counterargument, then you can point to admissible evidence that further proves the summary judgment should be denied.

Keep in mind, however, to not dilute the court’s attention with too many objections. Only object when you know you have a good chance of succeeding, or else it can create the idea that you are just objecting for objection’s sake. Make certain your objections are brought up at all initial hearings, though, so that they can be considered during any subsequent appeals.

You can learn more about summary judgment motions and how to combat them by clicking here and reading the full Trial Bar News article written by Attorney Levinson. It begins on page 7 and is titled “When Opposing a Summary Judgment Motion, Don’t Forget to Object to your Opponent’s Evidence”. Do you require a Carlsbad personal injury attorney for a case or claim of your own? You can contact Levinson Law Group at 760-642-5475 at any time to request a free case evaluation.