Purpose of Summary Judgment

Summary Judgment Motions

Purpose of Summary Judgment

Summary judgment lets a court end a claim, a defense, or part of one before trial when the record leaves nothing for a jury to decide. Under Rule 56(a), a party may move for it by identifying each claim or defense, or the part of each, on which judgment is sought. The court shall grant the motion if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, and it should state on the record its reasons for granting or denying the motion.¹

The rule’s reference to “the part of each” means a movant can target a slice of the case. A party may seek and win summary judgment on an entire claim or defense or on any portion of one: a single claim, counterclaim, or defense, or a piece of a claim, such as the existence of liability or the amount of damages to be awarded if liability is established at trial.²

The need for the motion appears in the limits of Rule 12(b)(6). A plaintiff bears no heavy burden in avoiding dismissal under that rule. He need not prove any facts, or even allege them in detail, so long as the court can infer that he is alleging the elements of a proper claim. The motion therefore gives no help in weeding out a case in which a proper cause of action has been alleged but the plaintiff cannot prove his claim.³ Most jurisdictions now fill that gap with a formal procedure, the motion for summary judgment, which determines whether an issue set forth in the pleadings is in fact in dispute and, if not, eliminates any portion of the case for which trial is not required.⁴

The two motions differ in what they test, though they work alike in other respects. A motion to dismiss or a demurrer typically tests the legal sufficiency of allegations, while a motion for summary judgment tests the legal sufficiency of a party’s position based on undisputed, and therefore established, facts. Each takes certain facts as established and asserts that, on those facts, the movant is entitled to prevail as a matter of law without a decision by a jury.⁵

A suit on a promissory note shows the difference.

The two borrowers pleaded the same denial; they differed in what they put in the record. A party opposing a supported motion cannot avoid summary judgment merely by repeating the pleadings’ denial of the allegations in the movant’s affidavits.⁶ Rule 56 lets the opposition rely on any of the evidentiary materials listed in Rule 56(c) except the pleadings themselves, and it does not require the opponent to depose her own witnesses.⁷ The second borrower’s affidavit supplies the evidence the first borrower lacked.

That demand follows from how the motion works. Shifting the burden to the opposing party lets summary judgment pierce the pleadings and lets the court assess the sufficiency of the evidence. To ease that burden, another provision allows the opponent to respond by showing why it cannot yet present evidence.⁸

What the court reviews is, in effect, a preview of the trial. A motion for summary judgment previews, usually in documentary form that includes sworn witness statements called affidavits, the evidence the parties would put on at trial, to learn whether it would establish any dispute that requires a trial. Judge Posner described the test for jury cases this way: the court must decide “whether the state of the evidence is such that, if the case were tried tomorrow, the [non-moving party] would have a fair chance of obtaining a verdict.”⁹

Judgment as a matter of law under Rule 50 asks a related question at a later stage. Once the plaintiff has finished presenting evidence, a defendant may claim that there is “no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” In effect, it is a defense motion made halfway through trial, when the plaintiff has rested.¹⁰ The drafters of the original Federal Rules in 1938 envisioned summary judgment as a way to test the legal sufficiency of a factual claim before trial, much as a directed verdict does during it.¹¹

Timing marks the difference. Summary judgment asks for a factual accounting of a claim before trial, before any jury has been summoned to hear the matter. Avoiding trial yields much greater cost savings, and it also threatens a potentially much greater affront to the prerogatives of the jury.¹²

Federal judges have treated the motion warily since its inception. They saw in it a threat to such guarantees as the right to confront witnesses, the right of the jury to make inferences and determinations of credibility, and the right to have one’s cause advocated by counsel before a jury. In 1962 the Supreme Court discouraged its use in antitrust litigation, stating that “[t]rial by affidavit is no substitute for trial by jury which so long has been the hallmark of ‘even handed justice.’”¹³

The motion respects the jury’s role by dividing the work between judge and jury. Courts may use their supervisory powers over questions of law to decide whether certain facts could be established on the record, while leaving it to the jury to decide whether they have been established, a line the source calls necessarily precarious.¹⁴ A trial exists mainly to resolve factual disputes, which in an action at law a jury typically resolves. If the court determines that there is “no genuine dispute as to any material fact,” no factual dispute remains for a jury, and a trial would be pointless. What remains is applying the law to the facts, and the court may do that without a jury.¹⁵

The court therefore never weighs or assesses the actual credibility of any witness, because that is the jury’s role. It decides only whether there is reason to believe that credibility may be determinative, and if so, it denies the motion.¹⁶ In the first lender suit, nothing in the record disputes the witness, so the jury has nothing to decide. In the second, the court does not choose between the borrower and the eyewitness. Whether the borrower signed may turn on whom a jury believes, so credibility may be determinative, and the motion is denied.