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What Are the Odds of Winning Summary Judgement?

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C.L. Mike Schmidt Published by C.L. Mike Schmidt

Schmidt & Clark, LLP is not currently accepting these types of cases and has posted this content for information purposes only. We encourage you to seek a qualified attorney, if you feel you might have a case.

A motion for summary judgment (MSJ) can be a very effective litigation tool. It can settle the matter before going to trial, get a more reasonable settlement discussion, and even limit how many issues are involved in a dispute. But what are the realistic odds of winning a summary judgment?

Schmidt & Clark lawyers have two decades of experience filing summary judgment motions. Our lawyers are familiar with the filing process and know how and when a judge will grant summary judgment. Today, we’ll explain the odds of winning a summary judgment and everything you should know about this motion.

Summary of the Key Findings

  • Summary judgment is considered difficult to get.
  • You need a lawyer to file and win a summary judgment successfully.
  • Summary judgment consists of a motion and a memorandum where both parties present their argument and undisputed facts.

Chances of Winning a Summary Judgment

Two coworkers discussing with each otherA summary judgment happens once all the facts are known to the parties but before the actual trial. The judge reviews all the facts and determines it’s impossible for one of the parties involved to win the case.

The judge has to view the facts favorably to the non-moving party. If the judge doesn’t see a way for that party to win the case, they grant them a summary judgment, and the case is thrown out.

That’s why lawyers avoid summary judgment. A lawyer has to do all the work and prepare for the trial, but the trial potentially never arrives.

“A motion asking the court to issue summary judgment on at least one claim. If the motion is granted, a decision is made on the claims involved without holding a trial. Typically, the motion must show that no genuine issue of material fact exists and that the opposing party loses on that claim even if all its allegations are accepted as true.” Legal Information Institute

However, there is evidence that shows judges don’t grant many summary judgment motions. One study showed that summary judgment motions are granted more often in civil rights cases. On the other hand, tort and contract law have low rates of successful summary judgments. The chance of success in these cases is less than 10% [1]. 

Another study found that summary judgment is mostly granted in Title VII cases, for example, cases involving equal pay or employment discrimination [2].

When it comes to federal cases, summary judgments are filed in 17% of total cases. Around 71% of summary judgment motions were filed by defendants and 26% by plaintiffs. Out of all of these, 36% were denied, and 64% were granted, either whole or in part [3].

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What to Consider Before Filing a Summary Judgement? 

Two persons discussing

There are several things you should consider before filing a summary judgment:

  • Early preparation — You should start preparing for a summary judgment early in the case and throughout the litigation. Focus on the issues that are most likely to be the focus of the motion, study the case law, and prepare the discovery requests and deposition strategy with these issues in mind. Use the discovery process to build the evidence that’ll support your motion.
  • Keep in mind the summary judgment motion throughout the case — Consider if you should file an MSJ throughout the litigation. Think about whether you would win with the evidence you have. If you think the chance of success is low, it’s better to hold off on filing the motion.
  • The client — Sit down with your client and go through all the pros and cons. Be honest about the chances of winning the MSJ and about the fees involved in preparing the motion.
  • The opponent — If you aren’t successful in getting a summary judgment motion, the opponent may gain confidence and not want to settle. 
  • The judge — Try to gauge the judge’s interest. Some judges will show they are in favor of granting summary judgment if they are given enough information about the case.

What Does Summary Judgment Include?

A summary judgment includes two parts: the motion and the memorandum.

The Motion

A lawyer looking at paperwork in front of a laptopThe motion is a written request for the court to rule in your favor. The heading of the motion has to specifically identify the party filing the motion. The body of the motion shouldn’t be longer than two pages. 

Once you file the summary judgment motion, the non-moving party is always given a chance to respond to the motion. This is called the opposition motion or response. 

The other party is given a certain time frame in which they can file a response. The time frame varies from state to state, but it’s usually around three weeks.

Their response contains two parts:

  • The motion — A written request to rule in their favor.
  • The memorandum — Explains why the court should rule in their favor.

The non-moving party has to:

  • Dispute the fact, usually by providing evidence.
  • Accept there aren’t any disputed facts and dispute the movant’s recitation of the law.

If the non-moving party says they don’t have enough time to gather the material facts, they can ask the court for a continuance. The court then decides whether to grant the request and give them more time.

Once the motion and the non-moving party’s response have been recorded, the judge goes over both and presides over a hearing. Both parties are given a specific amount of time to present their material facts to the judge.

The judge can ask questions and then grant or deny the motion. In some cases, the judge needs more time to make the decision, so you may find out the result of the motion days or weeks after the hearing.

Note: The hearing for the summary judgment motion doesn’t include oral testimony, so some lawyers and opposing counsel don’t take their clients to the hearing. This depends on the lawyer and the nature of the case.

The Memorandum

A lawyer and another person discussing something

The memorandum is a memo that explains why the court should rule in your favor.

It consists of a:

  • Heading — Has to specifically identify the party filing the motion.
  • Introduction — One paragraph that lists the argument.
  • Facts section — Lists all the relevant facts regarding the case. If the facts are disputed, list the opposing version of them. 
  • Argument section — State the standards for MSJ. Then make the argument. If you’re seeking a whole summary judgment, your argument should explain why each state should be dismissed. If you’re citing a summary judgment statute, don’t forget to include the source citation.
  • Conclusion — One paragraph. Repeat the legal argument and explain why the summary judgment should be granted for each count. 

The Evidence

A lawyer holding paperwork

The evidence is the most important part of the MSJ. The legal professional you hire to file your motion needs to have an excellent grasp of the rules of evidence to make sure the evidence for your case is admissible. 

The admissible evidence that a legal professional can use in MSJ includes:

  • Client’s declaration
  • Witness declaration
  • Expert declaration
  • Defendant declaration
  • Defendant’s employees’ declaration

Note: Declarations recorded as discovery responses aren’t usually admissible because they are considered hearsay. However, the summary judgment statute allows declarations to be submitted if they support or oppose the motion.

Also, be very careful when including facts. Even if one single fact isn’t properly supported by the submitted evidence or the other party successfully challenges it, your motion can be denied.

Make sure to check all the admissible evidence carefully, and if you’re the non-moving party, object to everything that’s not admissible in the Superior Court.

Finally, if your motion is dismissed, you can file an appeal with the Appellate Court. But keep in mind the Appellate Court will review the exact same evidence as the judge. You can’t add any additional evidence, so getting a reversal on the summary judgment isn’t easy.

Tips for Winning a Summary Judgment

a person looking at a paper he is holding

Here are some tips on how to win a summary judgment:

  • Prepare on time — Expert lawyers know that good case preparation requires a lot of prep and discipline, especially at the summary judgment stage. Plan the depositions, discovery, and expert witnesses, and keep the summary judgment rules in mind. Always focus on the issues that are most likely to win your case.
  • Don’t wait for the opponent to build the case — Winning a summary judgment is about convincing the judge to forego a trial. This requires having overwhelming evidence that’s in your favor. Take all the key depositions early in the case, so you can catch a witness or counsel in a position where they aren’t focused, so you can get key admissions early on. 
  • Think about the jury — A great way to build a winning summary judgment strategy is to anticipate the jury’s questions in your case. The jury usually focuses on important unresolved matters. Getting evidence or building arguments to resolve these matters can help you make a persuasive summary judgment memorandum. If you think about jury instructions, you’ll know your target and how to build a record.
  • Don’t overcomplicate — Your oral arguments and written briefs should be effective, to the point, and based on a factual basis. Narrow down the issues to focus on the most important elements of motion for summary judgment. The motion for summary judgment shouldn’t resemble a story, but it should be focused on the essential elements of the claim. Or, if you’re on the opposing side, focus on the weak elements where you think you can win. This is especially useful if you have a skeptical judge. Tailor your statement to facts, and make them persuasive. 
  • If you’re the defendant — In case you’re the defendant in the case, look for documents or facts that can provide you with a complete or partial defense. If any of these are disclosable at the trial stage, the claimant can’t make a summary judgment application.


How to fight a summary judgment?

You should hire a lawyer to fight a summary judgment. A lawyer will point out undisputed facts and file admissible evidence in your favor. Overall, they can find a drastic remedy that helps you win.

What happens if you lose a summary judgment?

If you lose a summary judgment, you can appeal for a grant of summary judgment.

Should You File a Motion for Summary Judgment?

A summary judgment is considered very difficult to win, and lawyers mostly use it as a scare tactic. However, it can be extremely beneficial. If the party moving the summary judgment wins, the case is thrown out.

The most important thing in winning summary judgments is hiring competent lawyers. Schmidt & Clark lawyers are familiar with the statute and know how to file a motion for summary judgment. We can gather all admissible evidence and material facts and help you build affirmative defenses.

Contact us today for a free case evaluation, and let’s develop a good attorney-client relationship.