Cost Effective and Speedy Litigation: Why I Love Summary Judgment Motions
October 26, 2022 - Miranda Desa
Like any professionals, lawyers have favourites too. For me, it’s summary judgment motions. They’re my favourite motion.
Summary judgment motions are special because they allow the court to decide a whole case on a motion, rather than at trial. They are not appropriate for all cases, but when there’s one or a few critical issues at play, they can be a powerful tool.
I love summary judgment motions because when bringing one, I have the opportunity to mould my client's case into a tidy package, wrapped up in an appealing bow. I do this by preparing clear and enticing motion materials, to get the judge on my client's side, as early as possible. I also enjoy the extended opportunity they provide to advocate before a judge. Arguing a summary judgment motion usually means a half to a full day of pure advocacy, in front of a well briefed judge, peppering you with thoughtful questions. They are challenging motions to prepare and litigate, but for a litigation enthusiast like myself there are few opportunities quite like them.
I also love summary judgment motions because of how I've been able to use them to push matters forward faster. Litigation is draining and our courts are unfortunately quite overwhelmed and slow. With summary judgment motions, I've been able to quickly shut down cases without merit and push companies that ought to pay into paying. I know this matters to my clients because having litigation over your head can be stressful. It still takes time to get a date for a summary judgement motion but one can be obtained much faster than a trial of 1-2 weeks plus.
The Rules of Civil Procedure were amended in 2010 to increase the power of judges hearing summary judgment motions. The amendments require that summary judgment be granted if there is no genuine issue requiring a trial and judges were granted extended powers to open up more cases to summary judgment. The amendments were intended to improve access to justice. Counsel were encouraged to utilize summary judgment motions as a tool to resolve more cases and lawyers were excited about the possibilities. Trial was no longer intended to be the default.
Since then, there have been developments in the caselaw that have chipped away when summary judgment motions are appropriate, and some of the shine has been worn off the 2010 rule amendments. Many of these developments have scared parties off utilizing summary judgment motions to their full potential, and to date, trial remains the default. In many cases, I view this as a missed opportunity.
Summary judgment motions aren’t always appropriate. Some of the biggest obstacles include: when there is a significant credibility issue; where you are seeking a determination of only part of an action; or where evidence you need to establish your case cannot be tendered in an affidavit (such as establishing damages for pain and suffering or the evidence of a non-party witness that is not cooperative ). But, it truthfully requires a case-by-case assessment to determine if summary judgment is right for a case. I have personally had success with summary judgment motions where credibility has been at issue with contested facts, in determining only part of a proceeding and in moving for a plaintiff to establish liability and the quantum of damages.
Summary judgment is a powerful tool for plaintiffs and defendants to short-circuit the civil litigation process: allowing them to obtain judgment or dismiss a case against them. In a case that ought to settle, they also allow the moving party significant leverage as parties are required to put their best foot forward or face the consequences.
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