A Cynic’s Guide to Civil Litigation – Chapter 10 – The Motion for Summary Judgement

The thrilling odyssey of filing a motion for summary judgment in Massachusetts invariably summons up a groan or two. As riveting as the Dead Sea Scrolls and as lighthearted as the Inferno, this procedural dance (apologies, dance is the wrong word... this isn't ballet, it's more like assembling IKEA furniture while blindfolded) is a delightful labyrinth.

So, a motion for summary judgment: it's the legal version of a shrug, a yawn, a too-long lecture on the mating habits of the three-toed sloth. It’s a statement that says, “Do we really need to do this whole trial thing? The facts are clear. The outcome’s a foregone conclusion. Let’s wrap this up and call it a day.” It is what it describes…your insistence that a judgment should be entered in your favor. You claim it should be “summarily” entered (without the fanfare of a trial because it is not needed).

Summary judgment can be proposed on the whole case, or on part of a case. If it is only part of the case, (or parts) the rest of the case goes forward to trial, unless you have effectively cut the legs out of the opposing party by winning summary judgement on some key issues. If so, the case might settle.

Remember…there is a difference between “serving” a motion and “filing” a motion. The Rules require that you “serve” a motion on opposing counsel, wait for the opposition and then “file” the motion and opposition with the Court. If you don’t get an opposition in the time allowed under the rule, you “file” it unopposed.

Let's get to the heart of the matter, the 'how to.' Under Rule 9A of the Superior Court Rules, you've got your work cut out for you. Prepare to juggle the following documents like a street performer at a Renaissance Faire:

· Motion for Summary Judgment (Rule 9A(b)(1))

· Memorandum of Law supporting your motion (Rule 9A(b)(1))

· Statement of Material Facts Not in Dispute (Rule 9A(b)(5))

· Opposing party’s responses to your Statement of Material Facts Not in Dispute, if

you have them (Rule 9A(b)(5)(ii))

· Any affidavits and supporting materials (Rule 9A(b)(5))

· Rule 9A package cover sheet, to ensure everything's in the correct order (Rule

9A(b)(2))

· Proof that you've served all this on the other side (the Affidavit of Service, Rule

9A(b)(3))

Each of these items is its own unique snowflake of joy and heartache. Let's consider the Motion for Summary Judgment. As an old warhorse, my advice? Keep it brief.

Remember, this is the document where you're arguing that there are no genuine issues of material fact and that you're entitled to judgment as a matter of law. (This is the standard the Judge will employ) The Motion does not have to state law or rules or anything other than what you are requesting. Think of the Motion as a notepad. If the Judge doesn’t issue a full opinion, he or she may just make a written ruling on the side of the Motion and enter it as an order.

The Memorandum of Law is where you let your inner nerd shine. Show off your legal acumen. Court decisions, statutes, regulations - these are your weapons. Wield them with a steady hand.

The Statement of Material Facts is where you lay out your case, no fluff, no filler. It’s like a highlight reel of the case, except every clip supports your argument. But be aware that the statement of material fact is supposed to be consolidated. So…when you serve the statement of material fact on opposing counsel, they are supposed to respond to your listed facts one by one, add whatever fact they think is helpful to their response, and have a little conversation about this, before they send it back to you for filing with the Court.

Does this commonly happen? No. I have seldom dealt with an attorney that is either aware of this obligation or cares about this obligation. I commonly get back a pleading that states their facts. Nothing I can do about it. I just include a statement about the Rule in the affidavit of service. (Included in what is described as the 9A package)

But, oh no, we're not done yet! Before you “file” the pleadings, Rule 9C requires you to sit down with opposing counsel and discuss the motion. It's like being forced to share a sandbox with the kid who kicks sand in everyone's face. But such is life. You'll attempt to work out any disagreements about the facts or law, or “narrow the issues”, and then you'll file a joint statement that outlines what you've agreed on and what's still at issue.

Here is a practice tip…figure out what you are attacking in the case before you have the Rule 9C conference. It is unlikely opposing counsel will agree to anything because obviously you’re attacking the case, but you have to comply with 9C. I will normally have the Rule 9C conference after I serve the pleadings on opposing counsel. They will not agree with your attack, it does not matter when you have the conference, it sets out the issues clearly (I hope), and the rule only specifies the conference is to happen before you file, not before you serve.

Defending against a motion for summary judgment is a similarly delightful journey. You'll want to carefully review their Statement of Material Facts, countering each point and showing that there are still factual questions that need to be decided by a jury or a judge.

And there you have it, the joys and trials of filing a motion for summary judgment in Massachusetts. But remember, while this may seem like a slog, there's something beautiful in it. Each document, each requirement, is a thread in the tapestry of justice. So, grit your teeth, steady your hand, and dive in. You're part of something much bigger than yourself.

I'll be here, cheering you on, and handing you a metaphorical band-aid when you inevitably get a paper cut. Onwards and upwards, future legal warriors!

Here is a little more food (gristle) for thought…you can file an opposition to a Motion for Summary Judgement and a Cross Motion for Summary Judgement! This is common. It is like “doubling down” in blackjack. If you don’t file a cross motion, the Court can only grant or deny the motion. You get more positive out of success on a cross motion.