Yesterday I was in the Circuit Court for Baltimore City for a hearing on a motion for summary judgment filed by a defendant in a products liability case.
I think the way the hearing went down contains a lesson for defending against summary judgment motions.
My primary argument in opposition was a legal one. Without getting into the facts of the case, I thought I had a pretty strong legal argument that even if the facts were undisputed, the motion could not be granted because the defendant was not entitled to judgment as a matter of law. That was the primary argument I made in the motion papers and at the hearing.
The only problem was that it soon because apparent that the hearing judge hated this argument.
Luckily, I could shift to the backup argument- that the defendant had failed to show that the material facts of the case were undisputed. I could show the court inconsistencies between the defendant’s corporate representative’s deposition testimony and the facts he swore to in his affidavit in support of the defendant’s motion.
Ultimately, the hearing judge was persuaded that these inconsistencies were sufficient to preclude the entry of summary judgment.
I think the lesson here is that a defendant needs two things to get summary judgment- undisputed facts and a right to judgment as a matter of law. If you have arguments to make on both of these points, make them. The facts and the law work together, so you need to be prepared to use both in opposition.
I think it is generally best to lead with your strongest argument. But where you have more than one good-faith argument to make, do it.