Hey, plaintiff’s bar! Wake up! Summary judgment isn’t just for defendants anymore!
Too many of us view the summary judgment process as an obstacle to be overcome, rather than as an effective offensive weapon. Almost since the beginning of time defendants in civil cases have used the summary judgment process as an attempt to weed out claims that have a weak factual or legal basis, or where an affirmative defense may apply. But to quote one of my favorite rap artists, Ice Cube: “The system is there to bury you. Why can’t it be there to save you?” Esquire, January 2003.
I like to file offensive summary judgment motions where appropriate. There is a host of factual situations where such a motion has merit. I have filed these directed at the issue of liability in cases involving rear-end collisions, uninsured/underinsured motorists, and the boulevard rule.
Often, the facts of the collision are not in dispute prior to trial, but at trial the defense may attempt to argue contributory negligence, or that under the circumstances that the defendant was not negligent. These claims may have a higher chance of success in front of a jury rather than the judge.
I like to take this option away from the defense whenever I can. Any experienced injury lawyer will tell you that it is in your best interest to narrow what you must prove at trial as much as possible. If summary judgment is granted, it is possible to position your case as a trial on damages only, and that is the name of the game. A ruling in your favor on liability lets you focus all of your efforts on proving damages. Remember, in drafting your proposed order, make sure it is tailored to exactly the relief you want. If you want a trial on damages only, put that in the order!
Plus, it’s always fun to put the shoe on the other foot for a change. I doubt defense counsel enjoy responding to summary judgment motions any more than we do.