Once you’ve considered the pros and cons of moving for summary judgment generally, you’re ready to get down to the specifics of your case and whether a summary judgment motion is the right move for you.
The first step in deciding whether to move for summary judgment is to write up an outline of your separate statement. This will create a roadmap for the discovery and legal research needed to make the motion and help you evaluate the chances of success of the motion.
Once you’ve finished your separate statement outline, here are 8 questions to ask yourself:
1. (Defendant) With respect to each asserted cause of action, can any necessary element be shown to be missing or can an affirmative defense be established, or is a punitive damages claim without merit?
2. (Plaintiff) With respect to each cause of action, has any affirmative defense been asserted, and can denials be overcome by showing that there are no triable issues of fact on each element of the cause of action?
3. (Defendant) Can you meet the burden of persuasion/production to negate essential elements of the plaintiff’s prima facie case?
4. (Plaintiff and Defendant) Can the parties agree to have the court adjudicate specific legal issues that do not dispose of an entire cause of action or defense in order to streamline a trial or make settlement more likely?
5. Have you weighed the likelihood of success against the risk of “tipping your hand” before trial?
6. Would other pretrial motions be more appropriate than a motion for summary judgment?
7. Have you confirmed that summary judgment is available in your case?
8. Can you file your motion within applicable time constraints?
Each of these questions is explained fully in CEB’s California Civil Procedure Before Trial, chap 36. And for a complete overview of all the considerations involved in moving for summary judgment or summary adjudication, you need CEB’s California Summary Judgment at your side.
Related CEB blog posts:
- The Mighty Separate Statement
- 10 Tips for Optimizing Your Opposition to a Summary Judgment Motion
- One Prong or Two? What Is a Defendant’s Summary Judgment Burden?
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