The Analysis and Decision of Summary Judgment Motions· a Monograph on Rule 56 of the Federal Rules of Civil Procedure
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Examples of Meritorious Summary Judgment Motions
Examples of meritorious summary judgment motions By: Douglas H. Wilkins and Daniel I. Small February 13, 2020 Our last two columns addressed the real problem of overuse of summary judgment. Underuse is vanishingly rare. Even rarer (perhaps non-existent) is the case in which underuse ends up making a difference in the long run. But there are lessons to be learned by identifying cases in which you really should move for summary judgment. It is important to provide a reference point for evaluating the wisdom of filing a summary judgment motion. Here are some non-exclusive examples of good summary judgment candidates. Unambiguous written document: Perhaps the most common subject matter for a successful summary judgment motion is the contracts case or collections matter in which the whole dispute turns upon the unambiguous terms of a written note, contract, lease, insurance policy, trust or other document. See, e.g. United States Trust Co. of New York v. Herriott, 10 Mass. App. Ct. 131 (1980). The courts have said, quite generally, that “interpretation of the meaning of a term in a contract” is a question of law for the court. EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016). That doesn’t mean all questions of contract interpretation — just the unambiguous language. When the language of a contract is ambiguous, it is for the fact-finder to ascertain and give effect to the intention of the parties. See Acushnet Company v. Beam, Inc., 92 Mass. App. Ct. 687, 697 (2018). Ambiguous contracts are therefore not fodder for summary judgment. Ironically, there may be some confusion about what “unambiguous” means. -
Brief Amicus Curiae of the District Attorneys Association of the State of New York and the National District Attorneys Association in Support of Respondent
No. 20-637 IN THE Supreme Court of the United States DARRELL HEMPHILL, Petitioner, v. NEW YORK, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK BRIEF AMICUS CURIAE OF THE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK AND THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION IN SUPPORT OF RESPONDENT J. ANTHONY JORDAN CYRUS R. VANCE, JR. President District Attorney DISTRicT ATTORNEYS ASSOciATION New York County OF THE STATE OF NEW YORK HILARY HASSLER Three Columbia Place Chief of Appeals Albany, New York 12210 DAvid M. COHN* (518) 598-8968 DIANA WANG Counsel for Amicus Curiae Assistant District Attorneys District Attorneys One Hogan Place Association of the State New York, NY 10013 of New York (212) 335-4098 [email protected] Counsel for Amici Curiae (For Continuation of Appearances See Inside Cover) * Counsel of Record 306644 BILLY WEST President NATIONAL DISTRicT ATTORNEYS ASSOciATION 1400 Crystal Drive, Suite 330 Arlington, VA 22202 (703) 549-9222 Counsel for Amicus Curiae National District Attorneys Association TABLE OF CONTENTS Page TABLE OF CITED AUTHORITIES .......................... ii Interest of the Amici Curiae .......................................1 Summary of Argument ...............................................2 Argument .....................................................................3 A. As courts have long recognized, a party may, through its litigation strategy, lose the right to assert a legal claim .......................................3 B. New York’s “opening the door” rule promotes fair -
Trial Process in Virginia
te Trial Process In Virginia A Litigation Boutique THE TRIAL PROCESS IN VIRGINIA table of contents Overview . .3 Significant .MOtiOnS .in .virginia . .4 . Plea .in .Bar . .4 . DeMurrer. .5 . craving .Oyer . .5 Voir .Dire . anD .Jury .SelectiOn .in .virginia . .6 OPening .StateMent . .8 the .receiPt .Of .e viDence . .10 MOtiOnS .tO .Strike . the .eviDence . .12 crOSS-exaMinatiOn . .14 clOSing .arguMent. .15 Jury .inStructiOnS . .17 Making .a .recOrD .fOr .aPP eal . .17 tiMe .liMitS .fOr .nO ting .anD .Perfecting . an .aPPeal . .18 key .tiMe .liMit S .fOr . the .SuPreMe .cOurt .Of .virginia . .19 THE TRIAL PROCESS IN VIRGINIA overview The trial of a civil case in Virginia takes most of its central features from the English court system that was introduced into the “Virginia Colony” in the early 1600s. The core principles of confrontation, the right to a trial by one’s peers, hearsay principles and many other doctrines had already been originated, extensively debated and refined in English courts and Inns of Court long before the first gavel fell in a Virginia case. It is clearly a privilege to practice law in the historically important court system of the Commonwealth of Virginia, and everyone who “passes the bar” and earns the right to sit inside the well of the court literally follows in the footsteps of such groundbreaking pioneers as Thomas Jefferson, George Mason, George Wythe, John Marshall, Lewis Powell and Oliver Hill. However, this booklet is not designed to address either the history or the policy of the law, or to discuss the contributions of these and other legal giants whose legacy is the living system that we enjoy today as professional attorneys. -
Glossary of Legal Terms
GLOSSARY OF LEGAL TERMS This glossary defines a number of terms in common legal use. Many books on the law for non-lawyers contain glossaries. Check your library or bookstore. See especially, Lile Denniston’s The Reporter and the Law (New York: Hastings House, 1980), Barron’s Dictionary of Legal Terms (New York: Barron’s Educational Series, 1998) and Black’s Law Dictionary (West Publishing Company, Minneapolis). acquittal A finding of “not guilty,” certifying the innocence of a person charged with a crime. adversary system The trial methods used in the U.S. and some other countries, based on the belief that the trust can best be determined by giving opposing parties full opportunity to present and establish their evidence, and to test by cross-examination the evidence presented by their adversaries, under established rules of procedure before an impartial judge and/or jury. alternative dispute resolution Processes that people can use to help resolve conflicts rather than going to court. Common ADR methods include mediation, arbitration and negotiation. Amicus curiae A friend of the court; one not a party to the case who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. appeal A request by the losing party in a lawsuit that the judgment be reviewed by a higher court. appellant The party who initiates an appeal. Sometimes called a petitioner. appellate court A court having jurisdiction to hear appeals and review a trial court’s decision. appellee The party against whom an appeal is taken, sometimes called a respondent. -
All Mixed up About Mixed Questions
The Journal of Appellate Practice and Process Volume 7 Issue 1 Article 7 2005 All Mixed Up about Mixed Questions Randall H. Warner Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess Part of the Jurisprudence Commons, and the Rule of Law Commons Recommended Citation Randall H. Warner, All Mixed Up about Mixed Questions, 7 J. APP. PRAC. & PROCESS 101 (2005). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol7/iss1/7 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. THE JOURNAL OF APPELLATE PRACTICE AND PROCESS ARTICLES ALL MIXED UP ABOUT MIXED QUESTIONS* Randall H. Warner** I. INTRODUCTION "Elusive abominations."' Among the countless opinions that wrestle with so-called "mixed questions of law and fact," one from the Court of Claims best summed up the problem with these two words. The Ninth Circuit was more direct, if less poetic, when it said that mixed question jurisprudence "lacks clarity and coherence."2 And as if to punctuate the point, Black's Law Dictionary offers a definition that is perfectly clear and perfectly circular: "A question depending for solution on questions of both law and fact, but is really a question3 of either law or fact to be decided by either judge or jury." * © 2005 Randall H. Warner. All rights reserved. ** The author is an appellate lawyer with the Phoenix firm of Jones, Skelton & Hochuli, PLC. -
What Is a Summary Judgment Motion? Notice for Parties Who Do Not Have a Lawyer
What is a Summary Judgment Motion? Notice for Parties Who Do Not Have a Lawyer A summary judgment motion was filed in your case. A summary judgment motion asks the court to decide this case without having a trial. Here are some important things to know. What is summary judgment? Summary judgment is a way for one party to win their case without a trial. The party can ask for summary judgment for part of the case or for the whole case. What happens if I ignore the motion? If you do not respond to the summary judgment motion, you can lose your case without the judge hearing from you. If you are the plaintiff or petitioner in the case, that means that your case can be dismissed. If you are the defendant or respondent, that means the plaintiff or petitioner can get everything they asked for in the complaint. How do I respond to a summary judgment motion? You can file a brief and tell the judge about the law and the facts that support your side of the case. A brief is not evidence and the facts that you write about in your brief need to be supported by evidence. You can file sworn affidavits, declarations, and other paperwork to support your case. An affidavit or declaration is a sworn statement of fact that is based on personal knowledge and is admissible as evidence. If you are a plaintiff or petitioner, you cannot win a summary judgment motion just by saying what is in your complaint. Instead, you need to give evidence such as affidavits or declarations. -
Jury Misconduct in Texas: Trying the Trier of Fact
SMU Law Review Volume 34 Issue 5 Article 3 1980 Jury Misconduct in Texas: Trying the Trier of Fact David E. Keltner Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation David E. Keltner, Jury Misconduct in Texas: Trying the Trier of Fact, 34 SW L.J. 1131 (1980) https://scholar.smu.edu/smulr/vol34/iss5/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. JURY MISCONDUCT IN TEXAS: TRYING THE TRIER OF FACT by David E.Kellner* T HE problem of jury misconduct has plagued attorneys since the adoption of the Magna Carta. Since that time practitioners, concerned that verdicts be reached fairly, have attacked the outcomes of jury trials on the grounds that the jurors violated their oaths and instructions. In ad- dressing jury misconduct, courts have been caught between two conflicting policies. First, courts recognize that every litigant is entitled to a fair trial, free from preconceived prejudices and outside influence. A juror's mis- conduct can and often does deny this right. On the other hand, the jury's verdict should be certain and final. A subsequent review of the jury's de- liberations results in a trial on a trial. In their struggle to choose between these two policies, Texas courts have created a body of law with peculiar rules, practices, and presumptions governing jury misconduct cases that affect every attorney engaged in litigation. -
Civil Dispositive Motions: a Basic Breakdown
Civil Dispositive Motions: A Basic Breakdown 1) Simplified Timeline: Motion for 12(b)(6) Motions JNOV** Summary Judgment Motions* Motion for New Trial Motion Motion for D.V. for D.V. (Rul 10 days Discovery and Mediation Plaintiff‟s Defendant‟s Evidence Evidence Process Complaint Trial Jury‟s Entry of Judgment Filed Begins Verdict * Defendant may move at any time. Plaintiff must wait until 30 days after commencement of action. **Movant must have moved for d.v. after close of evidence. 2) Pre-Trial Motions: Rule 12(b)(6) and Summary Judgment A. Rule 12(b)(6) Motions to Dismiss 1. Challenge the sufficiency of the complaint on its face. Movant asks the court to dismiss the complaint for “failure to state a claim upon which relief may be granted.” 2. Standard: The court may grant the motion if the allegations in the complaint are insufficient or defective as a matter of law in properly stating a claim for relief. For example: a) The complaint is for fraud, which requires specific pleading, but a required element of fraud is not alleged. 1 b) The complaint alleges breach of contract, but incorporates by reference (and attaches) a contract that is unenforceable as a matter of law. c) The complaint alleges a claim against a public official in a context in which that official has immunity as a matter of law. 3. The court only looks at the complaint (and documents incorporated by reference). a) If the court looks outside the complaint, the motion is effectively converted to a summary judgment and should be treated under the provisions of Rule 56. -
The Court System
The Court System he United States has many court systems. Each state has its own T court system, and there is also a system of federal courts. Each of these systems has trial and appeals courts. There are also a number of tribal justice systems. The highest court in the land "Three features mark is the Supreme Court of the United States. The Supreme the Anglo-American Court hears appeals from the other court systems. system as different from all others. One is the extent to which our law is formed in Trial Courts litigation. Another feature is the Trial courts listen to testimony, consider evidence, way we conduct these cases: we and decide the facts in disputed situations. Evidence is pit antagonists against each other, provided by witnesses who are called to testify in the to cast up from their struggles the case. In a trial there are two parties, or sides, to each material of decisions. A third- and case. In a civil trial, the party bringing the legal action is largest in the public conscious called the plaintiff. In a criminal trial, the government ness-is the trial by jury." (state or federal) initiates the case and serves as the prosecutor. In both civil and criminal trials, the party - Charles Rembar, responding to the plaintiff (civil) or prosecution (criminal) is The Law ofthe Land called the defendant. Once a trial court has made a decision, the losing party may be able to appeal the decision to an appel late, or appeals, court. Street Law The use of juries builds on line the values of democracy Visit the Street Law Web into the court system. -
Summary Judgment Or Settlement In
EDITOR-IN-CHIEF: ELIOT N. KOLERS STIKEMAN ELLIOTT LLP Volume 9 Number 3 March 2015 IN THIS ISSUE FIGHT OR FLIGHT: SUMMARY JUDGMENT Most class actions result in settlements. OR SETTLEMENT IN CLASS ACTIONS However, with the Supreme Court of Canada’s recent ruling in Hryniak breathing new life nationally into summary judgment, class action counsel now have another tool at their disposal that may provide an effective means to bringing class actions to a cost-effective and timely resolution on the merits. Monique Jilesen and Julia Brown of Lenczner Slaght Royce Smith Griffin LLP consider the possible advantages of summary judgment and the risk of the settlement approval process in class actions………………....29 Monique Jilesen Julia Brown PARTNER ASSOCIATE Despite an unusual decrease in class LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP action activity in Alberta this past year, a significant ruling emanating from the interplay between class actions and With a low threshold for certification, a defendant facing a class action third-party claims (and the tension has a number of tactical decisions to make from a cost, legal, and reputa- between them) was released. Michael Mestinsek, Brandon Mewhort and David tional perspective. In order to manage the cost and reputational issues, Price of Stikeman Elliott LLP analyze defendants have arguably too often been choosing to settle class actions the decision in Harrison v. XL Foods and that could have been successfully defended on the merits. The Supreme its possible impact, all within the context of the recent class action landscape in Court has recently breathed new life into another tool for defendants in Alberta…………………………………..35 class actions to consider—summary judgment.1 Rather than focusing one’s efforts on defending certification or achieving an early settlement, defendants can consider dealing with the action on its merits in a sum- mary judgment motion. -
Michigan-Tort.Pdf
Michigan Prepared by Cardelli Lanfear P.C. 322 West Lincoln Royal Oak, MI 48067 Tel: 248.850.2179 Fax: 248.544.1191 1. Introduction – History of Tort Reform in Michigan Michigan was one of the first states in the country to pass tort reform legislation when it passed the Medical Malpractice Arbitration Act in 1975. While this Act was repealed by subsequent tort reform legislation, Michigan continues to be in the forefront of the tort reform movement. The Michigan Legislature has enacted three sets of Tort Reform legislation. The first reform took effect in 1986. These reforms modified venue, imposed stringent criteria for medical expert witnesses in medical malpractice actions, and addressed joint and several liability concerns. These reforms did not address all of the concerns of the Michigan Legislature and, as a result, two more tort reform legislations were passed. The 1993 tort reform legislation applied only to the area of medical malpractice and affected cases filed after April 1, 1994. The 1993 legislation placed a limit on non-economic damages, reduced the applicable statute of limitations for minors, stiffened the requirements of the affidavit of merit, and required all plaintiffs to file notice of their intent to file a lawsuit not less than 182 days before a complaint is filed. The 1995 tort reform package overhauled Michigan’s tort system. As discussed more thoroughly below, the Legislature enacted laws that abolished joint and several liability, imposed caps on non-economic damages, changed the standard for product liability cases, modified venue provisions, heightened the standard for expert witnesses and altered Michigan’s No Fault Act. -
ISBA Advisory Opinion on Professional Conduct
ISBA Advisory Opinion on Professional Conduct ISBA Advisory Opinions on Professional Conduct are prepared as an educational service to members of the ISBA. While the Opinions express the ISBA interpretation of the Illinois Rules of Professional Conduct and other relevant materials in response to a specific hypothesized fact situation, they do not have the weight of law and should not be relied upon as a substitute for individual legal advice. Opinion No. 11-06 March, 2011 Subject: Lawyer as Witness Digest: A lawyer who is disqualified by reason of his or her likely being called as a necessary witness may continue the representation until commencement of trial. References: Illinois Rule of Professional Conduct 3.7 Weil, Freiburg and Thomas, P.C. v. Sara Lee Corp., 218 Ill.App.3d 383, 160 Ill.Dec. 773 (1st Dist. 1991) Jones v. City of Chicago, 610 F.Supp. 350 (N.D. Ill. 1984) Culebras Enterprises Corporation v. Rivera-Rios, 846 F.2d 94 (1st Cir. 1988) Mercury Vapor Processing Techs., Inc. v. Village of Riverdale, 545 F.Supp.2d 783 (N.D. Ill. 2008) The Law Governing Lawyers, Restatement of the Law Third, Sec. 108, comment (c) FACTS Litigation has been initiated to contest a will and an associated trust. The attorney representing the trustee under the will is likely to be called as a witness by the adverse party. The trustee’s attorney intends on turning the case over to trial counsel at the time the case proceeds to trial. QUESTIONS 1. Can the trustee’s attorney serve as trial counsel until the commencement of trial? 2.