Dear 1L: MSJ Primer

ByAmanda

Dear 1L,

Most of you are writing summary judgment briefs this spring.

You approach these briefs without the benefit of any prior, pre-trial litigation course. You also have never written a legal brief before. And in your fall Civ Pro class, you are lucky if Rule 56 even came up.

I thought a little primer on procedure, with some phrases to use, might help.

PRIMER
To begin, Plaintiff (P) files a Complaint in federal district court. She serves a summons on Defendant (D). There may be a motion to dismiss or other early things, but eventually, D Answers the Complaint. The next step is Discovery.

The parties exchange written questions that seek information, along with requests for production of documents, inspections and other things. The parties then exchange answers and responses, etc. Depositions and other things happen, and ultimately, Discovery closes.

There is now an evidentiary record.

At this point, either party may move for summary judgment under Rule 56.

The goal of a brief in support of a motion for summary judgment (MSJ) is to persuade the Court to rule on a claim as a matter of law. The theory is that no dispute of material fact exists. Therefore, there are only legal issues for the Court to decide, and no trial with a jury (or other fact-finder) is necessary.

PHRASES
For P’s MSJ (on P’s claim):
● “The undisputed facts establish P’s claim as a matter of law.”
● “On this record, no reasonable jury could find in D’s favor.”
———-
For D’s opposition to P’s MSJ:
● “P has failed to adduce sufficient evidence to prove her claim as a matter of law.”
● “There are disputes on several material facts that a jury must resolve, making summary judgment inappropriate.”
———-
For D’s MSJ (on P’s claim):
● “P has failed to adduce sufficient evidence on which a reasonable jury could find in her favor at trial.”
● “No material fact disputes exist, such that D is entitled to judgment as a matter of law.”
———-
For P’s opposition to D’s MSJ:
● “There are too many material factual disputes for judgment to be entered as a matter of law.”
● “P has adduced sufficient evidence on which a reasonable jury could find in her favor at trial.”

Let me know if any of you have other briefs not mentioned above, and I can address them in another post.

Fondly,

Amanda

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