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Civil procedure in the United States
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In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case.

In Common Law systems, issues of law, that is to say, what the law actually is in a particular case, are decided by the judge, except when jury nullification of the law acts to contravene or complement the instructions or orders of the judge, or other officers of the court. A factfinder has to decide what the facts are and apply the law. In traditional Common Law the factfinder was a jury, but in many jurisdictions the judge now acts as the factfinder as well. It is the factfinder who decides "what really happened," and it is the judge who applies the law to the facts as determined by the factfinder, whether directly or by giving instructions to the jury.

Absent an award of summary judgment (or some other type of pretrial dismissal), a lawsuit will ordinarily proceed to trial, which is an opportunity for each party to present evidence in an attempt to persuade the factfinder that such party is saying "what really happened," and that, under the judge's view of applicable law, such party should prevail.

The necessary steps before a case can get to trial include disclosing documents to the opponent by discovery, showing the other side the evidence, often in the form of witness statements. This process is lengthy, and can be difficult and costly.

A party moving (applying) for summary judgment is attempting to eliminate its risk of losing at trial, and possibly avoid having to go through discovery, by demonstrating to the judge, by sworn statements and documentary evidence, that there are no material issues of fact remaining to be tried. If there's nothing for the jury to decide, then, the moving party asks rhetorically, why have a trial? The moving party will also attempt to persuade the court that the undisputed material facts require judgment to be entered in favor of the moving party. In many jurisdictions, a party moving for summary judgment takes the risk that, although the judge may agree there are no material issues of fact remaining for trial, the judge may also find that it is the non-moving party who is entitled to judgment as a matter of law.


Motions for summary judgment

A motion for summary judgment must be filed with supporting evidence. Thus, the party bringing the motion must have conducted discovery and/or submitted evidence to the court, following the applicable rules of evidence. Typically, the party bringing the motion will have filed a Request for Admissions, asking the opposing party to admit or deny certain facts. Witness testimony or documents received from expert witnesses must be accompanied by an affidavit from the witness, otherwise it will be treated as hearsay. The moving party must also cite the specific rules of law being argued. For example, if the moving party claims breach of contract, then the section(s) of the Business Code that define breach must be cited; this assumes, of course, that the opposing party has admitted a contract did exist. If not, then the moving party must also provide evidence and cite the appropriate law to prove a contract did exist.

Also keep in mind that the Rules of Evidence and Rules of Civil Procedure are very particular about how documents are formed. For example, some states require each claim to be in a separate paragraph and that all paragraphs be numbered.

Specific jurisdictions

United States

In American legal practice summary judgment can be awarded by the court prior to trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that:

  1. there are no issues of "material" fact requiring a trial for their resolution, and
  2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.

A party making a motion for summary judgment (or making any other motion) is called a "moving party." A "material fact" is one which, depending upon what the factfinder believes "really happened," could lead to judgment in favor of one party, rather than the other. A simple example of summary judgment is provided below.

A plaintiff may move for summary judgment in its favor on any cause of action, and similarly, a defendant may move for summary judgment in its favor on any affirmative defense, but in either case, must produce evidence in support of each and every essential element of the claim or defense (as it would have to do at trial). To be successful, such motions must be drafted as written previews of a party's entire case-in-chief (that it would put before the finder of fact at trial) because all parts of an entire claim or defense are at issue.

A different and very common tactic is where a defendant moves for summary judgment in its favor on a plaintiff's cause of action. The key difference is that in this latter situation, the defendant need only attack one essential element of the plaintiff's claim. A finding that the plaintiff cannot prove one essential element of its claim necessarily renders all other elements immaterial and results in an immediate grant of summary judgment to the defendant. Therefore, these motions tend to be precisely targeted to the weakest points of the plaintiff's case. It is also possible for a plaintiff to move for summary judgment in its favor on a defendant's affirmative defense, but those motions are very rare.

A party moving for summary judgment may refer to any evidence that would be admissible if there were to be a trial, such as, depositions, party admissions, documents received during discovery (such as contracts, emails, letters, and certified government documents). Each party may present to the court its view of applicable law by submitting a legal memorandum in support of, or in opposition to, the motion. The court may allow for oral argument of the lawyers, generally where the judge wishes to question the lawyers on issues in the case.

Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for one party to prevail if the matter were to proceed to trial. The court must consider all materials in the light most favorable to the party opposing the motion for summary judgment.

If a trial could result in the jury (or judge in a bench trial) deciding in favor of the party opposing the motion, then summary judgment is inappropriate. A decision granting summary judgment can be appealed without delay. A decision denying summary judgment ordinarily cannot be immediately appealed; instead, the case continues on its normal course. In United States federal courts, a denial of summary judgment cannot be appealed until final resolution of the whole case, because of the requirements of 28 U.S.C. § 1291 and 28 U.S.C. § 1292 (the final judgment rule).

In order to defeat a motion for summary judgment, the non-moving party only has to show substantial evidence that a dispute of material facts exists, regardless of the strength of that evidence. For example, if one side on a summary judgment motion can produce the evidence of "a dozen bishops", and the other side only has the testimony of a known liar, then summary judgment is not appropriate. Deciding on the relative credibility of witnesses is a question for trial.

Where appropriate, a court may award summary judgment upon less than all claims, known as "partial summary judgment."

It is not uncommon for summary judgments of lower U.S. courts in complex cases to be overturned on appeal. A grant of summary judgment is reviewed "de novo" (meaning, without deference to the views of the trial judge) both as to the determination that there is no remaining genuine issue of material fact and that the prevailing party was entitled to judgment as a matter of law.

A motion for summary judgment in United States District Court is governed by Rule 56 of the Federal Rules of Civil Procedure. Other pretrial motions, such as a "motion for judgment on the pleadings" or a "motion to dismiss for failure to state a claim upon which relief may be granted," can be converted by the judge to motions for summary judgment, if matters outside the pleadings are presented to – and not excluded by – the trial-court judge.

State court practice

Summary judgment practice in most states is similar to federal practice, though with minor differences. For example, the U.S. state of California requires the moving party to actually present evidence rather than merely refer to evidence. See Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826 (2001). This is done by attaching relevant documents and by summarizing all relevant factual points within those documents in a separate statement of facts. In turn, the record to be reviewed by the judge can be very large; for example, the Aguilar case involved a record of about 18,400 pages. Also, California uses the term "summary adjudication" instead of "partial summary judgment." There is currently a conflict between the different districts of the California Courts of Appeal as to the availability of summary adjudication; most superior courts tend to side with the narrowest interpretation of California Code of Civil Procedure section 437c, under which a party may make such a motion only with respect to an entire cause of action, an affirmative defense, or a claim for punitive damages. There is also language in section 437c about "issues of duty," but some Courts of Appeal panels have given that phrase an extremely narrow interpretation due to evidence that the California State Legislature has been trying to stop the state courts from engaging in the piecemeal adjudication of individual issues.

England and Wales

In England and Wales, Part 24 of the Civil Procedure Rules 1998 governs the award of Summary Judgment.

Summary judgment is available in all claims against both the defendant and claimant except:

  • There may be no summary judgment in possession proceedings against a mortgagor or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988.
  • There may be no summary judgment against a defendant in admiralty proceedings in rem.

See also

1. Los Angeles County Bar Association article comparing Federal Law and California summary judgment burden shifting differences:

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