Moving for summary judgment or summary adjudication is a complicated process. You start by considering whether it’s even appropriate to make the motion. Then you review the strict timing requirements. After that comes an evaluation of the pleadings and evidence to support the motion. And then you have to prepare the moving papers. Finally, you schedule a hearing date and serve and file the moving papers. Whew! But it’s not too hard when you follow this handy checklist.
__ 1. Decide whether to move for summary judgment or summary adjudication.
__ a. Check availability and requirements for each.
__ b. Consider risks and benefits for each.
__ c. Consider alternatives for terminating litigation or narrowing issues.
__ d. Assess case for likelihood of success of each.
__ 2. Review timing.
__ a. Check the statutory requirements.
__ b. Review strategic options and decide best time to move.
__ 3. Research and understand evidentiary burdens in the case-in-chief and in the motion.
__ a. Research the law in the case.
__ b. Evaluate the burdens to meet for the motion.
__ 4. Create a discovery plan.
__ a. Evaluate the pleadings to determine the scope of the motion.
__ b. Review discovery and other evidence already obtained, including
__ i. Evidence from client and affiliated witnesses;
__ ii. Evidence from opponent; and
__ iii. Judicially noticed matters.
__ c. Complete discovery (if necessary).
__ 5. Marshal the evidence required to carry burdens for the motion.
__ 6. Prepare the moving papers.
__ a. Review the procedural requirements of CCP §437c and the Rules of Court.
__ b. Draft the moving papers, including
__ i. Separate statement;
__ ii. Supporting memorandum;
__ iii. Supporting evidence;
__ iv. Notice of motion; and
__ 7. Schedule hearing date.
__ 8. Serve and file the motion.
You should begin thinking about summary judgment when you first get involved in the case. Preliminary analysis of the potential availability of a summary judgment or summary adjudication motion could affect the initial pleadings as well as the order and conduct of early discovery efforts.
It’s especially important to have the timing requirements in mind before the matter is set for trial, so that at the time of the Case Management Conference or Trial Setting Conference you know the earliest date on which trial can safely be set, taking into account not only the lengthy notice period, but also the amount of time still necessary to complete sufficient discovery before drafting the motion.
You’ll find discussion of the timing requirements as well as guidance on preparing your moving papers in CEB’s California Summary Judgment. And check out CEB’s program How to Write A Persuasive Summary Judgment Motion or Stellar Opposition to One, available On Demand.
Other CEBBlog™ posts on summary judgment:
- 5 Ways to Challenge a Grant of Summary Judgment
- Checklist for Summary Judgment Reply Brief
- How to Get the Depo Testimony You Need for Summary Judgment
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