0:08

Welcome to the Civil Procedure Podcast.

0:10

I am your host Thomas Main and

0:13

this episode is about the summary

0:15

judgment motion In practice

0:18

that's Rule 56.

0:20

Summary judgment was once considered

0:23

to be an extraordinary remedy,

0:26

but in contemporary litigation

0:29

it is the focal

0:31

point. When we're tackling

0:34

a summary judgment on an exam,

0:36

we want to go on a cause

0:38

of action by cause

0:40

of action basis. So if

0:42

you have a couple of causes of action,

0:45

then you should tackle the summary judgment

0:48

question as to each of those causes

0:50

of action separately. Moreover,

0:53

because summary judgment is

0:55

all about the elements of the cause of

0:57

action, you would wanna break each

1:00

of those causes of action down

1:02

so that you're addressing each element

1:05

of those causes of action separately.

1:08

Here's what I would encourage you to do.

1:10

When you're tackling a summary judgment question,

1:13

create or imagine a

1:15

table or a matrix with

1:18

three columns in that table or

1:21

matrix and down the

1:23

middle column of that table give

1:25

each element of the

1:27

cause of action a separate row.

1:30

So each cause of action gets its own

1:32

table and each element

1:34

of the cause of action gets its own

1:36

row within each of

1:39

those tables. So

1:41

with the middle column of this

1:43

table populated with the

1:45

elements of whatever cause

1:47

of action, we're analyzing the

1:49

left and the right hand columns respectively

1:52

help us organize the plaintiffs

1:55

on the left and the defendant's evidence

1:57

on the right with regard to

2:00

each of those elements. So

2:02

imagine for example, that our cause of action

2:05

is negligent entrustment

2:08

of a vehicle. That's a cause of

2:10

action that exists in circumstances where

2:12

somebody's suing the owner of

2:14

a vehicle after an accident because they

2:17

were injured by a driver and

2:19

but they're suing the owner of

2:21

the vehicle for negligently

2:24

entrusting that vehicle to

2:27

somebody who caused the accident. That cause

2:29

of action has four elements, so

2:31

down the middle column of

2:34

our matrix would be the

2:36

four elements of that cause

2:38

of action. First row entrustment

2:41

by the owner of a vehicle.

2:43

You've gotta be suing the owner

2:45

of a vehicle and that owner has

2:48

to have entrusted the

2:50

driver with it. Open

2:52

boxes to the left and the right

2:54

would respect the plaintiff's and the

2:56

defendant's evidence on that

2:59

element second

3:01

row to a known unlicensed,

3:05

incompetent or reckless

3:08

driver and so forth. Whatever

3:10

the cause of action is, just put the elements,

3:13

each element gets its own row in

3:15

the table and we can start

3:17

thinking about the plaintiff's

3:20

evidence corresponding with the

3:22

element and the defendant's evidence

3:24

that correspond with that element on

3:27

the left and right hand sides of

3:29

our column. Now

3:31

for review or context or

3:34

contrast, think about this

3:36

table in the context not

3:38

of a summary judgment motion but

3:40

of a 12 [inaudible] [inaudible] motion

3:43

to dismiss for failure to

3:45

state a claim at the pleading

3:48

stage on a 12 [inaudible]

3:50

[inaudible] we populate that left

3:53

hand column with the allegations

3:57

in the complaint that correspond

4:00

to each of those elements at

4:02

the summary judgment stage. It's

4:04

not allegations that

4:07

belong in the boxes at the

4:09

summary judgment stage, it's

4:11

all about and only

4:14

about evidence. So

4:17

thinking about that matrix then

4:20

with respect to element number

4:22

one, the plaintiff needs

4:25

evidence that the defendant

4:28

is the owner of the vehicle and

4:30

needs evidence that

4:32

the defendant entrusted

4:35

the driver with that

4:37

vehicle and then is worth thinking

4:40

about the second row. In this second element,

4:42

the plaintiff needs evidence

4:45

that the defendant owner,

4:48

what did I say? The element was that

4:50

the defendant owner knew

4:53

that the driver was

4:55

an unlicensed, incompetent,

4:58

or reckless driver.

5:01

Summary judgment is about

5:04

evidence for these elements.

5:07

Of course you can imagine that while the

5:09

plaintiff is aggregating

5:12

evidence to support their

5:14

case with respect to

5:16

each of those elements, the

5:19

defendant is also aggregating

5:22

contrary evidence with

5:24

respect to one or more

5:27

of the elements. And

5:29

you can imagine that evidence is populating

5:31

the boxes in the right hand

5:34

column of our matrix. So

5:37

with respect to element one, the defendant

5:39

might have evidence that the driver

5:42

borrowed or maybe even stole

5:45

the owner defendant's

5:48

car without asking for

5:50

permission. And then on the second

5:52

row with respect to the second element,

5:55

we could imagine that the defendant might

5:57

be aggregating evidence that

6:00

the defendant owner had no

6:02

knowledge of the driver's

6:05

driving record. Now,

6:07

it's useful to imagine that this

6:09

process of putting evidence

6:12

in the corresponding boxes

6:14

is nothing more than preparation

6:18

for trial. Think of

6:20

it as trial preparation if

6:24

or when we go to

6:26

trial. Here is the evidence in

6:28

the left-hand column that the

6:30

plaintiff is likely to introduce with

6:33

respect to element number one, and

6:35

here's the evidence that the plaintiff

6:38

is gonna introduce with respect

6:40

to element two and so forth.

6:42

Same with the defendant, they're

6:44

doing trial prep and here's

6:47

the evidence that they plan to introduce

6:49

with respect to element one

6:51

or element three, it's

6:53

useful to think of this as trial

6:56

prep because summary

6:59

judgment is all about whether

7:01

we need to have a trial and

7:04

if by looking at both parties

7:07

trial prep, if we

7:09

could see that plaintiff couldn't

7:11

possibly win because

7:14

let's say they have no evidence

7:16

of element number two, well

7:19

that's what summary judgment is ultimately

7:22

about the inefficiency

7:24

or pointlessness of

7:27

having a trial. If

7:29

we can already see who

7:32

must win the

7:34

official standard for granting a summary

7:37

judgment which is set out in federal

7:39

rule 56 A is

7:42

when the

7:45

movement shows that there is

7:47

no genuine dispute as

7:50

to any material fact and

7:52

the movement is entitled to judgment

7:54

as a matter of law close quote

7:56

, that's the standard that

7:59

we use when we're writing briefs

8:01

or when we are talking fancy, but

8:04

in the quiet thoughts of your head, here's

8:07

what that standard in

8:09

fact means. The formal

8:11

version has two parts to it.

8:13

The first formal part is when there

8:16

is no genuine dispute

8:18

as to any material fact, that

8:21

simply means that

8:23

the box that corresponds

8:26

to an element is

8:29

functionally empty and

8:31

I'll talk about what we mean by functionally

8:34

empty shortly, but

8:36

the idea of no genuine

8:39

dispute as to any material fact,

8:41

those fancy words you

8:44

can translate in your head as empty

8:47

box. Now the second

8:49

part of the test is according

8:51

to the fancy words and the movement

8:54

is entitled to judgment as

8:56

a matter of law. Well, that

8:58

just simply means that we need

9:00

to examine the consequences

9:03

of an empty box. If

9:06

we get to this second part of the test,

9:08

we have found in the first part an

9:11

empty box and in this second part

9:14

we're being asked to consider the consequence

9:17

of an empty box. When

9:19

the movement on the summary judgment

9:22

motion is a defendant, then

9:25

to show that the plaintiff has

9:27

an empty box means

9:29

that you win the cause

9:31

of action. It means that you

9:33

are entitled to judgment

9:36

as a matter of law and

9:39

that's because at trial the

9:42

plaintiff needs to prevail on

9:44

all of the elements of

9:46

the cause of action. They cannot survive

9:49

an empty box if

9:51

the negligent entrustment of a vehicle

9:54

cause of action is tried. And

9:57

if the plaintiff can't prove

9:59

element number two, then

10:01

plaintiff cannot win

10:04

full stop. But the

10:06

reverse isn't true when

10:08

the movement on a summary judgment

10:10

motion is a plaintiff to

10:13

show that the defendant has

10:16

an empty box isn't so

10:19

consequential, the defendant

10:21

on the negligent entrustment of

10:24

a vehicle count might even

10:26

concede element number

10:28

one. They might offer no contrary

10:32

evidence at all. The defendant

10:34

could say, yeah, just like plaintiff said,

10:36

I am the owner of the vehicle and

10:39

I did give permission to

10:41

the driver to use it. Well,

10:43

the defendant's box would then

10:46

be empty as to element number

10:48

one and the first part

10:51

of the two-part test of summary judgment,

10:53

the no genuine dispute

10:55

of material fact , the empty

10:57

box, yeah, that would be satisfied, but

11:00

the second part of the test wouldn't

11:02

be satisfied because

11:04

the plaintiff wouldn't also be

11:06

entitled to judgment as a matter of

11:08

law. Sure, the

11:11

defendant's box would be empty as to

11:13

element number one, but defendant

11:15

doesn't need to win

11:18

every element. They

11:20

only need to win one element at

11:23

trial so they can win at

11:25

trial by conceding all

11:27

of the elements except for let's

11:29

imagine say element number two.

11:32

Maybe they have really strong evidence

11:34

that the owner did not

11:37

know that the driver was unlicensed,

11:40

incompetent or reckless, or

11:43

maybe the driver wasn't unlicensed,

11:46

incompetent or reckless.

11:48

If they can prevail on that

11:50

second element at trial,

11:53

they're gonna win the case. So

11:55

what that means for us at the summary judgment

11:58

stage is that a plaintiff who

12:00

can point to an empty box

12:02

of the defendants would satisfy

12:05

the first part of the summary judgment standard.

12:07

There is no genuine issue of material

12:10

fact as to whether the

12:12

owner of this vehicle entrusted

12:14

the driver with it, but that empty

12:16

box wouldn't satisfy the

12:18

second part of the test because

12:21

an empty defendant box

12:23

does not entitle a plaintiff

12:26

to a judgment as a matter of law.

12:28

Indeed the only way a

12:31

plaintiff can satisfy the

12:33

second part of the summary judgment

12:35

test is to show that

12:38

all of the defendant's

12:40

boxes are functionally empty.

12:43

Now let's talk about exactly what

12:45

we mean by a box being empty

12:48

or at least functionally empty

12:51

because this is the

12:53

place where you earn all the points

12:55

on the exam or the

12:57

wins in practice. Well,

13:00

actually there are two places, this is the second. The

13:02

first is allocating

13:04

all of the evidence from the

13:07

fact pattern or the file and

13:09

putting it in the right box so

13:12

that we know what we have. That

13:15

means evidence that we've learned through

13:17

discovery, depositions,

13:19

interrogatories, documents, importantly,

13:23

it also means affidavits.

13:25

You need affidavits because

13:28

remember that we don't take formal

13:30

discovery of our own witnesses.

13:34

Now if the other side has taken

13:36

our client's deposition or

13:39

has requested a document

13:41

or served an interrogatory, then

13:43

we will certainly be mining that

13:46

formal discovery to

13:49

put that evidence in

13:51

the corresponding box or

13:53

maybe we've even produced something as

13:55

part of our mandatory initial disclosure

13:57

obligation that belongs

14:00

in the box as evidence

14:02

of the element where it appears.

14:05

But often some of

14:07

your best evidence are

14:10

sentences that your client would

14:12

say at trial, but

14:15

they haven't yet had the opportunity

14:18

to say that sentence in

14:20

some formal discovery response.

14:23

They haven't been asked the right question

14:26

in an interrogatory or in

14:28

a deposition, and you

14:30

can put such sentences

14:33

in an affidavit, have

14:36

your client sign it under the

14:38

pains and penalties of perjury and

14:40

then use it as evidence to

14:43

put it in the right

14:46

box. If you've

14:48

got literally nothing in

14:51

the box, then there is no

14:54

disputed issue of material fact

14:57

on that element. Usually

14:59

it's not that there is absolutely nothing

15:02

in the box but rather that

15:04

from the perspective of the moving party,

15:07

you would argue it's functionally empty

15:10

or to put it back into the language of

15:12

the standard, there is no genuine issue

15:15

of material fact. Here's how

15:17

you analyze whether there is enough

15:19

in the box or to use the fancy

15:21

words enough to create a genuine

15:24

issue. What you

15:26

do is you have to imagine there

15:29

being a trial and

15:31

you need to visualize a jury

15:34

hearing all of

15:36

the evidence that you've put in

15:39

that plaintiff's box

15:42

and then you ask yourself or

15:45

on the exam you discuss whether

15:48

a reasonable jury

15:50

, a reasonable

15:52

jury could from

15:54

hearing that evidence and

15:57

drawing inferences from that

16:00

evidence could find that

16:03

element satisfied.

16:06

Would that be a reasonable

16:09

conclusion based

16:11

solely on that

16:14

evidence in the box? So

16:17

imagine, let's go back to that second

16:19

element of the negligent

16:22

entrustment of a vehicle cause

16:24

of action if the

16:26

only evidence in

16:29

the plaintiff's box with

16:32

respect to that element number

16:34

two, the element that

16:36

the defendant knew

16:39

that the driver was an

16:41

unlicensed, incompetent or

16:44

reckless driver, if the only evidence

16:46

in the box was, let's say these

16:48

three things. One, the

16:50

driver lost her

16:53

license because of

16:55

a D U I driving

16:57

under the influence A D U I

16:59

conviction three months

17:02

prior to this incident. Plus

17:05

item number two, the driver

17:08

was the defendant's sister

17:11

and item number three, that

17:14

one month prior to this incident,

17:16

the driver asked to

17:19

borrow her brother, the defendant

17:21

owner's car to take it on vacation

17:24

and he said no. Now

17:27

if it would be reasonable

17:30

for a jury that heard

17:32

only those three

17:35

inputs, if it would be

17:37

reasonable for them

17:40

to hear that and

17:42

to conclude as an output,

17:45

yeah, we think this defendant

17:47

knew that the driver

17:50

was unlicensed, incompetent

17:53

or reckless, if that would be

17:55

reasonable, then there is

17:58

a genuine issue of

18:01

material fact. If however,

18:04

that conclusion or output

18:06

would be unreasonable

18:09

based only on those

18:11

inputs, then that is

18:13

to say that the box is functionally

18:16

empty. No reasonable

18:18

jury could reach the

18:21

conclusion that the defendant

18:23

knew that the driver was

18:25

unlicensed, incompetent or

18:28

reckless solely because it

18:30

was his sister and the

18:32

fact that he wouldn't let her borrow the

18:35

car to take it on vacation. Well,

18:37

that really doesn't say much of anything about

18:39

what he knew. That

18:42

would be to conclude that there

18:44

was no genuine issue of

18:47

material fact on that element and

18:50

that the moving party would be entitled

18:52

to judgment as a matter of law. Now,

18:55

appreciate the importance then of

18:57

getting more evidence into

19:00

that box, doing better

19:02

trial prep as

19:04

it were if you were the plaintiff's

19:07

lawyer here, you need

19:09

evidence in that box about

19:12

how close the defendant

19:14

owner and his sister are.

19:17

The fact of their sibling relationship

19:20

alone may not be enough, but

19:23

what if we add all sorts of details

19:25

about how close the two

19:27

siblings are, how their lives

19:30

are intertwined and

19:32

their neighbors and their kids

19:34

play together and because

19:36

their lives are so intertwined,

19:39

the subtext is it's

19:41

inconceivable that with kid drop-offs

19:44

and pickups from school that

19:47

her driving history wouldn't

19:49

have been an issue in

19:51

his life and imagine more evidence

19:54

that could go into the box about

19:56

how they shared intimate details of

19:59

their lives with each other about

20:01

illnesses and misdeeds

20:03

and and so of course he

20:05

had to know about his

20:08

sister's D U I or

20:11

maybe there's evidence that the defendant

20:13

owner brother loaned

20:16

his sister $2,500

20:19

the day before she

20:21

made a $2,500

20:24

payment to the lawyer who

20:26

represented her in the D

20:28

U I case. Our job

20:31

as plaintiff's lawyers is

20:34

to make sure the judge

20:37

sees enough evidence in

20:39

the box. Our

20:41

job as exam test takers

20:44

is to discuss the reasonableness

20:47

of reaching the conclusion that

20:50

the element is satisfied based

20:53

solely on what's

20:56

in the box. Now

20:59

let's go over four common

21:01

mistakes. Common

21:04

mistake number one , using

21:07

allegations from the

21:10

complaint to populate the

21:12

box. Lots of exams

21:14

will discuss in certain paragraphs

21:17

the complaint that was filed and then in

21:19

other paragraphs of the exam there

21:21

will be compilations of the evidence,

21:24

but an allegation is

21:26

not evidence, so

21:29

do not make the mistake of using allegations

21:32

from the complaint to populate

21:34

the box, but this gets

21:37

a little tricky, which is why it's on the common

21:39

mistake list because an

21:41

admission in an answer

21:45

can be used

21:48

to populate the box. One

21:51

way to remember this is that the complaint

21:54

can't give you evidence to defeat

21:56

a summary judgment, but an answer

21:58

could an admission

22:01

in an answer that

22:04

the defendant is the owner of

22:06

the vehicle in our hypothetical

22:08

negligent entrustment suit. That

22:11

admission can populate

22:13

the box for that first

22:16

element which requires the plaintiff

22:18

to prove entrustment

22:20

by the owner of

22:23

the vehicle. Second common

22:25

mistake. Looking at

22:27

contrary evidence, it's

22:30

easy to get distracted or

22:32

even seduced by evidence

22:35

in the defendant's box

22:38

evidence that the defendant is

22:40

assembling as part of their trial

22:43

prep. It's easy to get distracted

22:45

by that when you're analyzing the

22:49

sufficiency of the evidence in

22:51

the plaintiff's box On

22:54

a summary judgment motion, we

22:56

do not weigh evidence

22:59

at the summary judgment stage. W

23:01

E I G H. We do not weigh

23:04

evidence. That's what the fact

23:07

finder will do at trial. Yes,

23:10

but at trial the

23:13

fact finder will also be making credibility

23:17

determinations about whom

23:19

to believe, and at the summary

23:21

judgment stage, we are going to

23:24

assume that the jury

23:26

won't believe the

23:29

defendant's witnesses. None

23:31

of the defendant's evidence really

23:34

matters at the summary judgment

23:36

stage. We do

23:38

this because we are looking at the

23:40

case in the light most

23:43

favorable to the plaintiff

23:45

because if we grant this summary

23:48

judgment, we are throwing the

23:50

plaintiff's cause of action out

23:52

and we shouldn't do this

23:55

lightly. So if with

23:57

respect to element number two

24:00

of our hypothetical case here, imagine

24:02

that there is an affidavit or

24:04

an interrogatory answer or

24:06

a deposition transcription

24:09

recording the defendant saying

24:11

something like, I

24:13

did not know that

24:16

my sister was an unlicensed driver.

24:19

I allowed her to drive my own

24:21

kids in her car

24:23

and I would never

24:25

have allowed that if I had any

24:27

reason to believe that she

24:29

was unlicensed or incompetent

24:33

or reckless. That's

24:36

the kind of evidence that can be

24:38

distracting, can be seductive.

24:41

When you're trying to analyze

24:44

a defendant's summary judgment

24:46

motion and looking at the

24:48

sufficiency of the plaintiff's

24:51

evidence, do not weigh

24:55

that evidence. Instead,

24:58

consider the plaintiff's evidence in

25:01

isolation from whatever the

25:03

defendant might also

25:05

be saying because the jury

25:08

might disbelieve everything

25:10

that the defendant says. The

25:12

issue here is not what defendant

25:15

says, rather the

25:18

question is whether the plaintiff's

25:21

evidence could lead a reasonable

25:23

jury to find

25:26

that element satisfied.

25:30

And of course we do this analysis

25:32

for each element of each

25:34

cause of action. Third

25:36

common mistake confusing

25:39

the respective roles of

25:41

plaintiffs and defendants.

25:45

As we've already said, when

25:47

defendants move

25:49

for a summary judgment pointing

25:52

to one functionally

25:55

empty box means

25:58

that defendant wins

26:00

the summary judgment motion. That's

26:03

because the empty box satisfies

26:06

the first part of our test, no

26:08

genuine issue of material fact and

26:12

when the moving party is

26:14

a defendant identifying

26:16

one empty plaintiff box that

26:19

satisfies the second part of the

26:21

test for summary judgment, also the

26:24

moving party is entitled

26:27

to judgment as a matter of

26:29

law under those circumstances.

26:32

Now the common mistake is confusing

26:35

the roles of plaintiffs and defendants when

26:37

plaintiffs move for

26:40

summary judgment pointing

26:42

to a functionally empty

26:44

box satisfies

26:47

the first part of the test. Empty

26:49

box equals no genuine issue

26:52

of material fact on that element. However,

26:55

second part of the test isn't satisfied

26:58

when one box is empty.

27:00

Plaintiffs are not entitled

27:02

to judgment as a matter of

27:05

law unless all

27:08

of the defendant's boxes are

27:10

empty and that can be the

27:12

case. For example, when a lender sues

27:15

a debtor for an unpaid debt.

27:18

Well, if the debtor isn't

27:20

challenging that that's their signature,

27:23

they aren't challenging the the

27:25

fact that they've failed to repay the

27:27

debt. We could imagine that their boxes

27:29

are empty on the defendant's

27:32

side and when all of the

27:34

defendant's boxes are empty, well

27:36

then summary judgment for the

27:38

plaintiff would be appropriate.

27:41

After all, what's the point

27:43

of going to trial if

27:46

the defendant is not making an

27:48

argument that a reasonable

27:50

jury could honor? But

27:52

here's where mistakes tend to

27:55

come in. First of all, when

27:57

we're talking about plaintiffs and

27:59

defendants moving for summary judgment,

28:02

we're keeping things simple, but

28:05

remember that it's not always so simple.

28:07

Sometimes a defendant on

28:10

one claim is a plaintiff

28:13

on a counterclaim or

28:16

a cross claim . So

28:19

a plaintiff on a main claim can

28:21

be a defendant on

28:24

a counterclaim and whenever

28:26

in the context of summary judgment, we're

28:29

talking about plaintiffs moving for summary

28:31

judgment or defendants moving for

28:34

summary judgment. When we use

28:36

those terms, plaintiff means

28:38

the one who is asserting the

28:40

claim and the defendant means

28:43

the person who is defending against

28:46

that claim. But

28:48

that can get confusing when the party

28:50

asserting a claim is

28:52

asserting a counterclaim

28:55

because in that sense the

28:57

plaintiff for our purposes of summary

28:59

judgment is somebody that in other contexts

29:02

in this same fact pattern,

29:05

we're referring to them as defendants.

29:08

So when we're talking about plaintiffs

29:10

or defendants moving for

29:12

summary judgment, you need to orient

29:14

them. The plaintiff is whoever

29:17

it is that is asserting the

29:19

cause of action and the defendant is

29:22

resisting d defending against

29:25

that particular cause

29:28

of action. But it gets still

29:30

worse when we're talking about this

29:32

particular common mistake

29:35

because another complicator

29:37

involves affirmative

29:40

defenses. You

29:42

might remember from the episode on

29:44

answers that I said it can be

29:47

useful to think of affirmative

29:49

defenses as having elements.

29:53

The reason that that's useful

29:56

is because we can have summary judgments

30:00

on causes of action because

30:02

of affirmative defenses.

30:06

Just like we can have summary judgments

30:09

on causes of action because

30:11

of defects with respect

30:13

to some element of

30:15

the cause of action, but

30:18

because affirmative defenses

30:21

are theories of non

30:23

liability asserted

30:26

by defendants, the

30:29

roles of plaintiffs and defendants

30:31

get flipped when we are talking

30:33

about summary judgment because

30:36

of an affirmative defense.

30:39

For example, imagine

30:42

a negligence case where

30:45

the defendant asserts

30:47

an affirmative defense for

30:50

assumption of the risk. Let's

30:54

imagine that the plaintiff who

30:56

was injured while base jumping

30:59

sues the base jumping company

31:02

for negligence. And

31:05

let's imagine that in the relevant jurisdiction

31:08

assumption of the risk is

31:11

available as an affirmative

31:13

defense. The defendant

31:15

base jumping company moving

31:18

for summary judgment on that

31:21

negligence claim could

31:23

be moving for summary judgment

31:26

because the plaintiff doesn't

31:28

have evidence to support

31:31

one of the elements of

31:34

their negligence cause of action. That's

31:36

what we've been talking about from the outset

31:38

of this episode, but now

31:40

I'm flagging a second possibility

31:43

because they could also or

31:45

they could instead be

31:48

moving for summary judgment on

31:51

their affirmative defense

31:54

of assumption of the risk. Now

31:57

in both of those instances, the

31:59

base jumping company will

32:02

be pointing to empty

32:04

boxes, but

32:06

in the latter instance when

32:09

they're moving for summary judgment because

32:12

of the empty box on

32:15

the affirmative defense, they're

32:18

more like a plaintiff. And

32:21

if that affirmative defense,

32:24

if their affirmative theory

32:26

of non liability had

32:29

a couple of elements to it, then

32:32

the base jumping company

32:35

would be entitled to summary

32:37

judgment on that affirmative defense.

32:40

Only if they

32:42

could prove that they will necessarily

32:45

win on all of

32:48

the elements of their affirmative

32:50

defense, which is to say that the

32:52

plaintiff's boxes on

32:54

all of the elements of the affirmative

32:57

defense must be functionally

33:00

empty. That leaves

33:02

common mistake number four, and

33:05

that involves issues on summary

33:07

judgment where there are pure

33:10

questions of law. All of

33:13

the fun summary judgment stuff that we've

33:15

been talking about involve questions

33:17

of fact or mixed questions

33:20

of law. In fact, pure

33:23

questions of law can be resolved

33:25

by the judge full stop. It

33:27

doesn't matter how disputed they

33:29

are. Questions of law

33:32

would be resolved by a judge at

33:34

trial and so they can be resolved

33:36

by a judge at a summary judgment. Stage

33:40

two , with respect to pure questions

33:42

of law, there is no prediction of

33:45

how some reasonable fact

33:47

finder might handle it because

33:50

they aren't gonna be handling it. Judges

33:53

resolve questions of law, juries

33:56

only resolve questions of fact.

33:58

Questions of law are always for

34:01

the judge. Now let's

34:03

cover a few doctrinal points as

34:06

we start wrapping up our coverage

34:08

of the summary judgment motion. There

34:11

are three doctrinal issues that we

34:13

need to cover. First, admissibility

34:16

of evidence. Evidence

34:19

does not need to

34:21

be in an admissible

34:25

form at the summary judgment stage

34:28

provided. There is good

34:30

reason to believe that it

34:32

will be in an

34:36

admissible form at

34:38

trial as a matter

34:40

of the law of evidence. An

34:43

affidavit for example, is

34:45

very seldom admissible

34:47

at a trial. Yet

34:50

at the summary judgment stage, an

34:52

affidavit from your plaintiff client

34:55

might stave off a summary judgment

34:58

provided your client

35:01

can be expected to

35:04

testify at trial.

35:07

Again, it doesn't need to be

35:09

admissible now, but

35:11

the court needs to know that it will be

35:13

in an admissible form

35:16

at trial. Well then

35:18

it's a different situation if someone

35:20

at the summary judgment stage

35:23

is invoking evidence that

35:25

will not be admissible

35:28

at trial because a summary

35:31

judgment is essentially a

35:33

prediction of what would

35:35

happen at trial and

35:37

so therefore only evidence that

35:39

will be in an admissible

35:42

form at trial should

35:45

be considered at the summary judgment

35:47

stage. Second doctrinal

35:49

issue timing. The

35:52

typical timing for

35:54

a summary judgment motion is

35:57

at the end of discovery. The

36:00

purpose of a summary judgment

36:02

motion is to resolve summarily

36:07

cases where the result

36:09

of a trial is a foregone

36:11

conclusion. Why have a

36:13

trial if we know what the

36:16

result's gonna be? And in the ordinary

36:19

situation, we don't know

36:21

what the result of a trial is

36:23

likely to be or must be until

36:26

both sides have

36:28

had a full and fair opportunity to

36:30

gather all of the relevant

36:33

evidence. But rule 56 says

36:35

that the motion can be brought

36:37

much sooner than that and therefore you

36:40

need to be ready to use it earlier or

36:43

to expect the other side to

36:46

bring it earlier. Whenever

36:49

you are bringing or resisting

36:52

a summary judgment motion that

36:54

is filed before discovery

36:59

is complete, you

37:01

need to reconcile or to

37:03

discuss two competing

37:06

narratives. One

37:09

of the narratives is that

37:11

the party bringing the motion will

37:13

no doubt be saying summary

37:16

judgment is here to

37:18

unmask litigants who

37:20

don't have evidence for

37:23

their claims or defenses

37:25

and the moving party. We shouldn't

37:28

have to endure months of

37:30

discovery on this meritless

37:32

case. That's one narrative summary

37:36

judgment is here to unmask litigants

37:38

who don't have evidence, but

37:41

there's a competing narrative. Number two,

37:43

and that is the party resisting

37:46

the motion will no doubt be

37:48

saying we haven't had the full opportunity

37:50

to develop our case. Look

37:52

at rule 56

37:55

D Judge and

37:57

please give me more

37:59

time to make my case.

38:03

Deciding the summary judgment

38:05

would be premature

38:07

at this stage. Reconciling

38:11

those two competing

38:13

narratives is about whether

38:16

additional time, additional

38:18

discovery makes

38:21

sense, whether it

38:23

will really make a

38:25

difference. The way to appreciate

38:28

what's going on here is to remember

38:30

that a plaintiff can

38:32

survive a 12 [inaudible]

38:35

six . Let's do a little review. A

38:37

plaintiff can survive a

38:39

12 [inaudible] [inaudible] motion

38:42

to dismiss with

38:44

just allegations. A

38:46

plaintiff can survive a 12

38:49

[inaudible] [inaudible] even when the complaint is

38:52

a complete fantasy

38:55

of untruths. And

38:58

that's because the 12 [inaudible] [inaudible]

39:00

isn't evaluating

39:03

the truthfulness of

39:05

the allegations but rather

39:07

the sufficiency of

39:10

the allegations. And

39:12

so as long as the fantasy

39:15

in the complaint invokes

39:18

a cognizable claim, and

39:21

as long as the fantasy in

39:23

the complaint contains sufficiently

39:26

detailed factual allegations,

39:29

and so long as the details in

39:31

the fantasy of a complaint don't

39:33

negate an essential element

39:35

of the cause of action, that

39:38

complaint, fantasy or

39:40

not will survive A

39:43

12 [inaudible] [inaudible] The 12

39:45

[inaudible] [inaudible] only evaluates the

39:48

face of the complaint. By

39:52

contrast, the summary judgment demands

39:56

evidence. So a judge

39:58

who is suspicious or skeptical

40:01

about whether a party actually

40:04

has or will ever have

40:07

evidence will

40:10

entertain a summary judgment motion

40:12

before discovery is

40:15

complete. Why have

40:18

this poor defendant dragged

40:20

through months of discovery giving

40:24

the plaintiff leverage in a settlement

40:26

negotiation? Why tolerate such

40:28

a thing when summary judgment can put

40:31

the plaintiff's evidence or

40:33

lack thereof to the test? So

40:36

net net , whenever a

40:38

summary judgment is filed before

40:42

discovery is complete,

40:44

the party opposing that

40:46

motion should file a 56

40:50

D seeking additional time

40:53

and the judge will be using her

40:55

discretion to figure out

40:57

whether or how much

41:00

additional time should

41:02

be allowed before the summary judgment

41:05

is considered. Third

41:08

doctrinal point. Any

41:10

discussion of summary judgment

41:12

doctrine invariably

41:15

will invoke the famous

41:18

trilogy of cases about

41:20

summary judgment that were decided

41:22

by the Supreme Court in 1986.

41:26

Here is the upshot of each

41:28

of those three cases in

41:30

the trilogy and how they affect our

41:33

contemporary application on

41:36

an exam or in practice.

41:39

First celotex

41:43

celotex reduced, arguably,

41:46

even eliminated as a

41:48

practical matter the moving

41:51

party's burden. That's what

41:54

cellex is about. The moving party's

41:57

burden. You wanna bring a summary judgment

42:00

motion. Well, what do you

42:02

have to do on the

42:05

movements side? And according

42:07

to Cellex , the moving party need

42:09

only point to the empty

42:12

box on the plaintiff's side. If

42:15

a defendant on the negligent

42:18

entrustment of a vehicle claim is moving

42:20

for summary judgment, they

42:22

can merely say, look, with respect

42:25

to element two , the plaintiff

42:27

has no evidence that

42:30

the defendant knew that the driver was

42:33

an unlicensed, incompetent,

42:36

or reckless driver. Point

42:38

to the empty box. The defendant's

42:41

merely pointing at that empty box

42:43

is in contrast to

42:46

say, requiring the

42:48

defendant to prove or

42:51

to demonstrate something

42:53

themselves prior to

42:55

celotex. For example, many judges

42:57

would've said Pointing is not enough.

43:00

You need to prove the

43:02

negative. You need to offer evidence

43:04

of your own defendant

43:08

that shows that you did

43:10

not know that the driver

43:12

was unlicensed, incompetent,

43:15

or reckless. Cellex

43:18

relieved defendants

43:21

of proving the negative as

43:23

it were. Instead, you

43:25

just point at what you

43:27

think is a deficient element

43:30

of the plaintiff's case and

43:32

it's up to plaintiff to scurry

43:35

about to show the evidence

43:37

that is in that identified box.

43:40

The second case in the trilogy,

43:43

mat Sushi cite and

43:46

use this case when the evidence

43:49

in the box is

43:51

not credible or of course if it's

43:53

arguably not, not

43:55

credible. Now in the mat sushi case

43:58

itself, it was expert

44:01

testimony that if a jury

44:03

believed that expert testimony, it

44:05

could have satisfied an element

44:07

of the plaintiff's case and prevented

44:10

a summary judgment. But the court

44:12

said you can't defeat a

44:14

summary judgment if the only evidence

44:17

in the box is something

44:19

that no reasonable fact

44:22

finder would find credible. So

44:25

if it's an expert with cockamamie

44:27

theories or if it's an eyewitness whose

44:30

testimony is absurd, Matt

44:33

Sushi is your case to

44:36

disregard that evidence. Now

44:39

of course the fight here is who

44:41

gets to decide whether a

44:43

theory is cockamamie or whether

44:46

testimony is truly absurd because

44:49

remember that on the summary judgment

44:51

motion, we're not supposed

44:53

to be weighing evidence

44:56

that would be a mistake. But

44:59

that's tricky here because determining

45:01

credibility is a species

45:04

of weighing evidence. Yet

45:06

Matt Sushi sits here

45:08

as part of our doctrine. Mat

45:12

Suda can be easily misused or

45:14

abused by a judge or

45:16

an exam taker who uses

45:18

it to weigh evidence

45:21

and to convert summary judgment into

45:23

something that it is not supposed to be.

45:26

There are fact patterns where

45:28

you could see why we need

45:30

something like the

45:32

Matt Sushi case to erase evidence

45:36

from a box, the Matt Sushi eraser.

45:39

Sometimes the evidence in the box could

45:41

be truly preposterous.

45:44

Imagine for example that that

45:46

one of the elements of the plaintiff's case is

45:48

to prove that the defendant was

45:51

speeding. And imagine that the

45:53

only evidence that the

45:55

defendant was speeding is

45:57

an eyewitness who was half

45:59

a mile away from the scene and

46:02

is blind and is

46:04

elderly and was distracted

46:07

because they were also tending to

46:09

their granddaughter. Well, if

46:11

that's the only evidence in

46:14

the box, well that's surely the

46:16

equivalent of having no evidence

46:20

at all. But once we open

46:22

up the possibility for judges to

46:24

start erasing evidence they

46:26

find not credible using that

46:29

mat sushi eraser, well now

46:31

the camel's nose is under the tent

46:33

and we end up with fights at

46:36

the margins. And when you are engaged

46:39

in those fights about

46:41

whether certain evidence can be discarded

46:44

because it is so lacking in credibility

46:46

in those circumstances, you want

46:49

to cite Matt Shida because

46:51

that's the case that gave you license

46:53

to do that. The third case

46:55

in the summary judgment trilogy is

46:58

Liberty Lobby. You

47:00

should only mention this case

47:03

on an exam or in practice

47:05

if you're dealing with a cause

47:08

of action where the standard

47:10

or burden of proof at

47:12

trial is something

47:14

out of the ordinary, that's

47:17

the only time Liberty Lobby should

47:20

be invoked. The ordinary

47:23

standard or burden of proof for civil

47:25

actions at trial is preponderance

47:28

of the the evidence that's our default.

47:31

And if nobody mentions burden of

47:33

proof, that's the presumptive burden

47:35

of proof at trial, preponderance

47:38

of the evidence. But occasionally

47:41

there is a higher standard, something

47:44

like clear and convincing

47:47

evidence on this particular

47:49

element, the plaintiff must offer clear

47:51

and convincing evidence of such

47:54

and such. That was

47:56

the situation in Liberty Lobby

47:58

where the cause of action was

48:01

liable and the plaintiff's

48:03

burden at trial was

48:05

to prove something not

48:08

merely by a preponderance

48:10

of the evidence but rather

48:12

with clear and convincing

48:16

evidence. That's unusual. And

48:19

so the issue in Liberty Lobby and

48:21

the only reason we cited on our exam

48:24

is how to deal at

48:26

the summary judgment stage

48:29

with the fact that there will be a higher

48:31

standard of proof at trial.

48:35

Now, many of us thought that the

48:37

standard of proof at trial would be

48:39

irrelevant at the

48:42

summary judgment stage because the

48:44

plaintiff isn't proving anything at

48:46

the summary judgment stage. Other

48:49

than that they have enough evidence

48:51

such that a reasonable jury

48:54

could find for them. But

48:57

we were wrong in making that assumption

48:59

because Liberty Lobby says

49:01

that in evaluating whether

49:04

a reasonable jury could

49:06

find for the plaintiffs, the

49:10

standard of proof at trial is

49:13

something that can be taken into account.

49:16

In other words, you

49:18

could have a fact pattern where

49:20

summary judgment for the defendant

49:23

would be inappropriate if

49:25

the standard of proof required plaintiff to

49:28

prove an element by a

49:30

preponderance of the evidence, but

49:32

appropriate if the standard

49:34

of proof required plaintiff to prove

49:36

an element by clear and convincing

49:39

evidence. Some of us get some

49:41

indigestion trying to reconcile

49:44

Liberty lobby with the

49:47

Orthodox view that summary judgment

49:49

is not supposed to be

49:51

about weighing evidence,

49:55

but Liberty Lobby tells

49:57

judges in circumstances

49:59

where there is a higher burden

50:02

of proof at trial, that

50:04

higher standard can affect the

50:06

evidence that needs to be in the box in order to

50:08

survive the summary judgment

50:11

review. Finally,

50:13

three quick tips when

50:15

addressing summary judgment questions.

50:18

Number one, be obsessive

50:21

about the precise scope

50:23

of each element. The virtue

50:25

of isolating these elements

50:28

into these matrices or tables

50:30

is that it forces you to get precise

50:32

about what the element is.

50:36

If the element requires written

50:39

notice of something or

50:42

if the element requires physical

50:44

injury, or

50:47

imagine that the element requires extreme

50:50

and outrageous behavior

50:53

or if the element requires unauthorized

50:57

use, or if the

50:59

element requires that the defendant knew

51:02

that the driver was unlicensed,

51:04

negligent, or reckless.

51:07

The point of these is

51:09

that whatever the element is, the

51:13

boundaries of that element are

51:15

going to be important and

51:17

it's gonna be in one party's interest to expand

51:20

those boundaries or distort them

51:22

or to reframe them, and it's

51:24

gonna be in another party's interest to

51:27

police those boundaries

51:30

vigilantly. And even when we're the

51:32

party subtly expanding or distorting

51:35

or reframing those priorities, we

51:38

want to know that we're doing something that

51:40

we may not be able to get away with when

51:42

the other party or the judge is

51:45

more precise than we

51:47

about policing exactly

51:51

what the boundary of that element

51:53

is. Tip

51:55

number two, when you are the

51:58

movement for summary judgment, one

52:00

trick is to identify

52:03

conspicuously absent evidence.

52:07

I like to do this because even

52:09

when the plaintiff has a bunch of evidence in

52:11

the box and it looks like

52:13

a summary judgment is a little hopeless,

52:15

you can oftentimes argue

52:17

something like no reasonable

52:20

jury could find that element satisfied

52:23

without evidence of X.

52:26

So the trick is to identify

52:29

conspicuously absent evidence and

52:32

leverage that into a broader conclusion

52:34

about the deficiency

52:36

of the plaintiff's evidence with

52:38

respect to that element. Finally,

52:41

tip number three, this one's for non

52:44

nts . The tip here is simply to

52:46

encourage a very sober

52:49

assessment by the

52:52

court. A summary judgment should

52:55

be an extraordinary remedy.

52:58

You are being denied the

53:00

right to present this

53:03

case to a jury based

53:05

upon some tentative summary

53:08

assessment of the evidence

53:11

that would be presented at trial. This

53:13

is a prediction. The judge

53:15

should enter a judgment on

53:18

a prediction only if

53:20

it's absolutely certain

53:23

that the plaintiff will lose. And

53:25

how often can we be sure

53:28

that that's the case given

53:30

the vagaries of

53:33

witnesses and what they will say

53:35

at trial and who would sit on

53:37

a jury and how the case

53:39

would actually unfold given surprising

53:42

admissions and uncertain

53:45

details? Surely we

53:48

should err on the side of

53:50

denying summary judgments in

53:53

all close cases. That's

53:56

tip number three. And that

53:59

concludes this episode of

54:01

the Civil Procedure Podcast. Thank

54:04

you for your attention on this topic, summary

54:06

judgment in practice, and

54:09

have a good day .