A Motion For Summary Judgment - 12 Tips For Showing Factual Disputes

A Motion for Summary Judgment is designed to help the court determine whether the plaintiff and defendant in a lawsuit are arguing over the facts (what happened) or the law (what should legally happen once the facts are clear). If the court decides that the facts are clear, it is supposed to decide what the law requires. In debt cases, particularly where a party is representing himself or herself, motions for summary judgment can unnecessarily deprive the defendant of the right to defense. Following the tips below will help prevent this from happening to you.

1. Motions for Summary Judgment are controlled by specific rules, called Rules of Civil Procedure. All the state jurisdictions have their own rules regarding summary judgment, and you can find yours simply by Googling "your state's name, Rules of Civil Procedure, and Summary Judgment." If your trial is in a state court, your state's rules of civil procedure will apply. If the court is a federal court, you will be using the Federal Rules of Civil Procedure, and the rule regarding summary judgment is Rule 56. The state rules are all similar to this. You should read the rule applying to your case.

2. The Rules require that a party seeking summary judgment demonstrate to the court that there is no dispute of "material" fact. A material fact is a fact that could matter to (have legal impact on) the outcome of the case. If there is a dispute, the court should not decide who is "right" about a certain fact, it should deny the motion. That means you should concentrate on proving the existence of disputes rather than that you are right (although as a practical matter this often will be the same).

3. The Court is not allowed to make up facts to support your case. It can and should, however, consider whether any argument would support your claims-whether you mention it or not. Knowing the law will help you show the court the important disputes of fact, but motions for summary judgment are fact-intensive. Make sure you establish the facts you need to prove.

4. Your testimony is evidence, but it must be sworn under oath. At trial you will take the oath on the stand. In a motion for summary judgment, however, you will create an "affidavit." An affidavit is a sworn statement, based on your knowledge and observation, that is notarized. Your bank will almost certainly have a notary public you can use for this purpose. If not, consult the yellow pages.

5. The testimony of other people is also evidence, and it must also be sworn under oath. If the witness is friendly to you, this can be done by affidavit. If the witness is not friendly, you can take his or her deposition. If the witness is a party to the lawsuit, you can use interrogatories.

6. Interrogatory answers are evidence. Because the answers to interrogatories are sworn to, they can be used in motions for summary judgment. This makes good interrogatories, and forcing the other side to give good answers and not just a bunch of objections, all the more important.

7. (The other side's) Responses to Requests for Admission are evidence. They are not sworn to, but they constitute admissions that are to be taken as true.

8. For all testimony, you must include proof that it is "admissible." That means that for interrogatories, for example, you should put the entire question and answer, and the affidavit page, as part of your exhibit attached to your response to the motion.

9. Documents can be evidence, but they must be "authenticated." This is accomplished by testimony (affidavit or otherwise) or admission, which establishes that the document is what it is. For example, if you want to introduce a letter you received from the collection company, you will testify (by affidavit) that the attached document is a true and correct copy of a letter you received on a certain date, that you called the collection company, and they verified sending it. For more here, you'll need to consider the rules of evidence of your state.

10. Opinions are not facts. Testifying that a debt collector was "mean," for example, will probably not establish any fact. Testifying that the debt collector raised his voice and called you specific names or made certain threats will state the facts.

11. It is not enough simply to "dispute" the other side's "undisputed facts." You must attach evidence to your response and direct the court's attention to the specific evidence which supports your dispute. Or you must show that the other side's "undisputed fact" is not properly before the court (it's not supported by any evidence at all, or the evidence is not "admissible" under the rules of evidence).

12. Remember to follow the court's rules on responding to motions. If that means (as it often does) responding in numbered paragraphs that correspond to the numbers used by the movant (person filing the motion for summary judgment), you must do this or risk losing the case on a "technicality".

For much more information on summary judgments (including video), both defending and bringing them, please go to: Summary Judgment Resources. If you're defending yourself from a debt lawsuit, you need to go to my site at http://yourlegallegup.com. It's a serious resource for you, including a great deal of free information as well as all the tools you need to defend yourself.
Kenneth H. Gibert.

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