What Are the Odds of Winning Summary Judgement?

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

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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.

Quick Summary

  • 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.

Understanding the Odds: Success Rates of Summary Judgment Motions

Summary judgment motions are a critical phase in litigation, determining whether a case proceeds to trial or is resolved beforehand.

The likelihood of winning a motion varies significantly based on the type of case and jurisdiction. Below is a breakdown of success rates across different legal categories, illustrating the trends and challenges litigants face.

How Common Are Summary Judgment Motions?

Summary judgment motions are not filed in every case, but they are a frequent strategy in federal courts. In fact, 17% of federal cases involve summary judgment motions, with 64% of these motions being granted (either fully or partially), while 36% are denied.

“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

Success Rates by Case Type

Tort and Contract Law

Motions for summary judgment in tort and contract disputes have a success rate of less than 10% [1].  These cases often involve factual disputes, making it difficult for courts to grant judgment without a full trial.

Civil Rights Cases

Defendants seeking summary judgment in civil rights litigation have a much higher success rate, with approximately 60% of motions granted (including partial grants). This reflects the stringent legal standards plaintiffs must meet to establish constitutional violations or discrimination claims.

Employment Discrimination (Title VII)

Courts grant summary judgment fully in 49.2% of employment discrimination cases, partially in 23.3%, and deny it in 27.5% [2].

Employers often rely on summary judgment motions to dismiss claims before trial, but courts scrutinize these cases closely due to the fact-intensive nature of discrimination claims [3].

Personal Property Torts

Summary judgment motions succeed fully in 48.6% of cases, partially in 19%, and are denied in 32.4%.These cases typically revolve around property damage claims and disputes over liability.

Property Rights Cases

In property law disputes, summary judgments are granted in full 33.7% of the time, partially in 24.5%, and denied in 41.8%. Courts are often hesitant to rule summarily on property disputes, as they frequently involve nuanced legal interpretations and factual disputes.

The likelihood of success in summary judgment motions depends not only on the type of case but also on who is filing the motion—plaintiffs generally face a harder battle than defendants.

While some areas, like tort and contract law, see very low success rates, others, like employment and civil rights cases, show that defendants often have a better chance of prevailing.

Understanding these trends is crucial for attorneys and litigants when determining whether to pursue summary judgment or prepare for trial. If you are involved in litigation, analyzing these success rates can help shape your legal strategy and expectations moving forward.

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What to Consider Before Filing a Summary Judgement? 

Two persons discussingThere 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 somethingThe 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 paperworkThe 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.

Winning Summary Judgment: How Case Type Impacts Success Rates

Summary judgment plays a crucial role in litigation, determining whether a case moves forward to trial or is resolved early. The likelihood of winning depends largely on the practice area, as different cases involve varying burdens of proof, evidentiary standards, and legal complexities.

In the following section, we examine the success rates of summary judgment motions across key areas of law and what factors influence the outcomes.

Personal Injury: Why Summary Judgment Is Hard to Win

Personal injury cases often hinge on disputed facts, such as whether a defendant was negligent or if a plaintiff contributed to their own injuries.

Because these issues are typically decided by juries, courts are reluctant to grant summary judgment unless the evidence overwhelmingly supports one side.

Despite this, summary judgment is granted fully in 41.8% of personal injury cases, partially in 14.8%, and denied in 43.4%.

Key Factors That Influence Success

  • Reasonableness Standard: Courts assess whether a defendant’s actions were reasonable, a fact-intensive question that often requires a jury decision.
  • Causation and Damages: Plaintiffs must present clear evidence linking their injuries to the defendant’s actions.
  • Expert Testimony: In cases like medical malpractice, expert opinions are crucial in either supporting or defeating summary judgment.

Even though summary judgment is difficult to win in personal injury cases, strong evidentiary support can still lead to early case dismissal.

Commercial Litigation: A Legal Battlefield for Summary Judgment

Contract disputes, business torts, and statutory claims often involve legal interpretations rather than factual disputes, making summary judgment a common strategy in commercial litigation.

Courts are more likely to grant these motions when contract language is unambiguous or when one party cannot establish a clear breach.

In contract cases, summary judgment is granted fully in 35.1% of cases, partially in 22.6%, and denied in 42.3%.

Key Factors That Influence Success

  • Contract Clarity: If a contract’s terms are straightforward, courts can decide the case without trial.
  • Breach and Damages Proof: Plaintiffs must provide solid evidence of breach and resulting financial losses.
  • Strong Documentary Evidence: Emails, invoices, and internal communications often determine whether a case is resolved at the summary judgment stage.

Because commercial cases frequently turn on legal arguments rather than factual disputes, summary judgment is a powerful tool for businesses looking to avoid lengthy litigation.

Employment Law: Why Employers Win More Often

Employment discrimination and wrongful termination cases see some of the highest success rates for defendants seeking summary judgment.

Courts often rule that plaintiffs fail to provide enough evidence of intentional discrimination, a key requirement in cases under Title VII and related laws. Summary judgment is fully granted in 49.2% of employment discrimination cases, partially in 23.3%, and denied in only 27.5%.

Key Factors That Influence Success

  • Burden of Proof on Employees: Plaintiffs must show strong evidence that their employer’s justification for an adverse employment action was a pretext for discrimination.
  • Statutory Interpretation: Wage disputes and employee misclassification cases are often resolved based on legal definitions, making them suitable for summary judgment.
  • Employer Defense Strategies: Defendants frequently undermine one key element of the claim, making it easier for courts to rule in their favor.

Since courts require substantial proof of discriminatory intent, summary judgment often favors employers in these cases.

Insurance Defense: When Policy Language Controls the Outcome

In insurance litigation, summary judgment is often used to resolve coverage disputes and policy exclusions. These motions are typically granted when policy language is clear and an insurer can show that a claim falls outside the policy’s terms.

Summary judgment is granted fully in 33.7% of insurance-related cases, partially in 24.5%, and denied in 41.8%.

Key Factors That Influence Success

  • Unambiguous Policy Terms: If an insurance policy clearly excludes a claim, summary judgment is likely.
  • Bad Faith Allegations: Courts scrutinize whether an insurer handled a claim fairly before granting summary judgment.
  • Factual Disputes Over Coverage: If there is uncertainty about the cause of loss, courts may require a full trial.

Insurance companies rely on summary judgment to avoid unnecessary trials, especially when they can demonstrate that policy terms exclude coverage.

The likelihood of winning summary judgment depends on whether a case is driven by factual disputes or legal interpretations.

  • Hardest Cases to Win Summary Judgment: Personal injury and employment cases, where credibility and intent are often disputed.
  • Easiest Cases to Win Summary Judgment: Contract and insurance disputes, where the outcome depends more on written agreements and policy terms.

Understanding these trends helps litigants and attorneys decide whether to pursue summary judgment or prepare for trial.

Whether you are defending against a claim or seeking early case resolution, knowing how courts approach summary judgment in different areas of law is critical for legal strategy.

Tips for Winning a Summary Judgment

a person looking at a paper he is holdingHere are some tips on how to win a summary judgment:

1. Prepare Early and Stay Disciplined

Winning a summary judgment motion starts long before it is filed. Proper preparation ensures that all critical evidence is gathered, and the legal arguments are solid.

  • Plan depositions, discovery, and expert witness testimony well in advance.
  • Keep summary judgment rules and deadlines in mind from the start of the case.
  • Focus on the key legal issues that are most likely to sway the judge.

2. Take the Lead—Do Not Wait for the Opponent to Build Their Case

Summary judgment is all about convincing the judge that no trial is necessary because the facts overwhelmingly support your position.

To do this:

  • Take key depositions early before the opposing party is fully prepared.
  • Catch witnesses or opposing counsel off-guard to obtain strong admissions.
  • Build a record of clear, uncontested facts that support your motion.

3. Anticipate the Jury’s Questions

Even though summary judgment is decided by a judge, thinking like a jury helps craft a stronger argument.

  • Identify which unresolved issues would matter most to a jury at trial.
  • Use evidence and arguments to eliminate those uncertainties in your motion.
  • Look at jury instructions to understand what elements need to be proven and how to structure your case.

4. Keep It Clear and Concise—Do Not Overcomplicate

A strong summary judgment motion should be direct, persuasive, and fact-focused. Judges prefer well-organized arguments that get to the point.

  • Focus on essential elements of the claim or defense, rather than telling a story.
  • Use simple, clear language to make legal points easy to understand.
  • If opposing summary judgment, highlight the weakest points in the motion and argue why the case requires a trial.

5. If You Are the Defendant—Find Documents That Can Block the Motion

Defendants have a strong opportunity to defeat summary judgment by identifying key documents or factual disputes that prevent an early ruling.

  • Locate evidence that creates a genuine dispute of material fact.
  • If certain documents or facts are disclosable only at trial, the plaintiff cannot win summary judgment.
  • Show that the opposing party’s case is incomplete or lacks essential elements.

By following these strategies, you can strengthen your motion for summary judgment or effectively oppose one when necessary.

The key is to stay prepared, focus on the most important issues, and present clear, persuasive arguments tailored to the judge’s expectations.

Why Choose Our Firm for Summary Judgment Success?

Securing summary judgment requires a deep understanding of legal strategy, procedural rules, and judicial tendencies.

Whether you're looking to dismiss a case before trial or challenge an opponent's motion, our attorneys bring precision, experience, and results-driven advocacy to every case.

Specialized Knowledge and Strategic Advantage

  • Our attorneys have published legal articles and conducted training sessions on summary judgment strategies, educating other legal professionals on best practices.
  • We tailor arguments to individual judges, leveraging insights into their past rulings and preferences when drafting motions and responses.
  • We stay ahead of case law developments that influence summary judgment rulings, ensuring our legal arguments align with the latest judicial trends.

A Results-Driven Approach to Every Motion

We do not take a one-size-fits-all approach. Instead, we craft customized, evidence-backed arguments that maximize your chances of winning.

Whether you need to file a motion or oppose one, our team works aggressively to protect your interests and achieve the best possible outcome.

If you're facing a summary judgment motion or considering filing one, contact us today for a consultation. Our strategic legal team is ready to fight for you.

FAQ

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.

What happens at a summary judgment hearing?

At a summary judgment hearing, both sides present legal arguments to the judge, who reviews evidence and determines whether any material facts are in dispute. If no genuine disputes exist, the judge may grant summary judgment, resolving the case without a trial. If disputes remain, the case proceeds to trial.

How much does a summary judgment motion typically cost?

The cost of a summary judgment motion varies based on case complexity and attorney fees, typically ranging from $5,000 to $20,000. Cases involving extensive discovery or expert witnesses may incur higher costs. Clients should discuss estimated fees with their attorneys.

What’s the difference between full and partial summary judgment?

The difference between full and partial summary judgment is that a full summary judgment resolves the entire case, eliminating the need for a trial. A partial summary judgment decides specific legal issues but allows the rest of the case to proceed, narrowing the focus for trial.

Can I appeal if my summary judgment is denied?

You cannot appeal if your summary judgemnt is denied, you must wait until the final case ruling. In rare cases, an interlocutory appeal may be allowed if the issue significantly impacts the trial’s outcome.

How long does the summary judgment process take?

The process typically takes three to six months, depending on court schedules, case complexity, and legal arguments. Delays may occur in federal courts or jurisdictions with heavy caseloads.

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.


References:1.https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1107&context=lsrp_papers 2.https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2267&context3.https://www.uscourts.gov/sites/default/files/sujulrs2.pdf