in this lesson on motion practice we will explore one of the most important substantive motions for dealing with a case that occurs in civil litigation and that is the motion for summary judgment and it's certainly one you should recognize when you're reviewing a litigation file and understand the implications of it so first question we should probably answer is what is a summary judgment generally it is a mechanism by which a trial court can resolve all or part it could be a partial summary judgment of a civil lawsuit without a complete trial on the merits so it sort of short circuits the process and you should know however that summary judgment is not available in all cases it's sort of cabined into a limited although still fairly significant area it's only available where there is no genuine issue as to any material fact such that the party making the motion the movement is entitled to judgment as a matter of law now that sounds somewhat ominous but it's actually not that difficult to understand what is required for a summary judgment well one way to understand that is to realize what the purpose of summary judgment is because what a summary judgment will ultimately do is take the lawsuit out of the hands of the jury if it is a jury case so uh the way the texas supreme court put it several decades ago is that the function of the summary judgment is not to deprive a litigant of his right to trial by jury but to eliminate patently unmeritorious claims and untenable defenses so if you think of that in terms of let's say the scales of justice if we could take that overused metaphor the scales have to go all the way to one side or the other they effectively have to go clunk because if there's any merit to the other side of the case then a summary judgment should not be granted and so it's gonna we have to be very careful understanding what the issues are and what the bases are on which a party is seeking a summary judgment because the party who prevails has to do so conclusively now there are federal court rules on summary judgment there's a primary one we'll look at and there are also state court rules on summary judgment they may have similarities and sometimes they will differ and as before we will use texas as our stand-in example for state procedures in federal courts summary judgment procedure is controlled by federal rule of civil procedure 56 and in some states where the rules are modeled after the federal rules very closely you might find the state rule is even called rule 56 in texas however the rules are a little bit different summary judgment is controlled by texas rule of civil procedure 166 a so you would have never guessed that number based on working from federal 56 now the language however if you look at the rule shows that it is in fact based on its federal counterpart however something to be aware of between state rules and federal rules is that they also have judicial interpretations as to what they mean and in the example of texas the rules have been interpreted to mean different things at times so even where the words are the same and sometimes whether even identical sometimes rules in different jurisdictions can have different meanings simply because courts reached different results about what the language means now the way that has played out in texas at least traditionally and this has changed somewhat over the years but traditionally the view was that texas courts have been less willing to deny litigants a trial on the merits so they would be less likely to grant a summary judgment than would a federal court but this distinction has diminished somewhat especially since 1997 when there was an addition to the rules that brought the procedure a little bit more in line with federal practice but the stereotype was that plaintiffs you know think of let's say a personal injury case the plaintiff who's trying to recover wants the lawsuit to be in state court while the defendant maybe the the big corporation would prefer that the case be in federal court that is a gross oversimplification but oftentimes that was the dynamic that went on through the years so let's look at the federal rule to see what the typical standard is for granting of a summary judgment and so we'll know what these motions are seeking the rule says under 56 a that a party may move for summary judgment identifying each claim or defense or the part of each claim or defense on which summary judgment is sought well then what happens the court shall grant summary judgment if here's the important language if the movement shows that there is no genuine issue as to any material fact so there can't be a factual dispute no he said she said kind of dispute with the evidence and that the movement is entitled to judgment as a matter of law now we're going to have to take apart what that means being entitled as a matter of law essentially that in the case of a defendant summary judgment that often means completely knocking out one of the elements of a plaintiff's claim and note that the court should state on the record its reasons for granting or denying the motion then we see that the time to file emotion is at any time it could be set by local rules particular to a court but up to 30 days after the close of discovery now let's compare the texas rule just to give a flavor for how a state court version could differ now in texas we only had a traditional kind of summary judgment until 1997 and honestly that was pretty consistent with what was happening in federal courts until the supreme court decided a set of cases in 1986 but let's see what that motion typically meant the movement the party who's filing the motion had the burden to conclusively prove its claim or conclusively disprove an element of the non-movements claim or defense essentially anything on which the other party has the burden of proving all its elements where that happens if you could knock out one of those elements for the other side or if you've got the burden prove all of your elements conclusively and that can be pretty hard then you could prevail in a summary judgment and that would require filing some evidence in most cases now if you're the non-movement under these traditional motions you don't have the burden to prove anything unless the movement produces some evidence that if there isn't anything to contradict it like the movement is shown well i've got this on my side if you don't have something that's going to show hey actually there's another side to the story so here's some evidence there and let's just make it simple it's a car accident and you got one witness who says the light was red well that's going to conclusively be what the record shows that the light is red unless the defendant could bring forward a witness or some other evidence suggesting that the light was green then we have a factual dispute if things are uncontroverted and of course this could be filed at any time after a party has appeared or answered now how do these motions play out and how has the texas rule become more like the federal standard well the addition in 1997 of subpart i and you don't really need to remember the the letters or that but it created something called a no evidence motion and this meant that the burdens could potentially fall the way they had been falling for over a decade in federal courts so what happens in a no evidence motion here the party moving only has to allege that there is no evidence supporting a specific element of the non-movement's claim or defense that's it it's very simple saying well you have no evidence uh that an agreement exists for a contract or you have no evidence that one party owed a legal duty in a negligence claim and if you do that then the burden would shift to the other side to at least come up with some evidence and it doesn't have to be everything but the non-movement has the burden to offer some evidence to show that there is a fact issue for the jury on each element that has been challenged by the movement so essentially the non-movement has to cough up some stuff and you can typically imagine that it is a defendant who files this motion and then the plaintiff has to show some evidence of its case and under the texas rules what's different about this kind of motion is that there has to have already been an adequate time for discovery so you can't blindside the other party by filing this motion instantly now having said all of that a federal motion for summary judgment could already have this no evidence element to it and that's uh so really you can get to the same result in both state court and in federal court but you just need to be aware that you're filing the right kind of motion and that it coincides with the rules where your litigation is pending so that's all kind of theoretical let's try to put some meat on this with a specific example and see if we can understand how this might play out or what parties might tend to do strategically so here's our sample summary judgment scenario we'll come up with some parties paul plaintiff has sued denise defendant for breach of contract well in a typical breach of contract claim paul has to show that there is a a valid agreement that it has been breached then go to the fourth element that there are damages and that the damages causation the third element were caused by the breach and so those would be for perspective elements now we could break that down even further as to what's in the agreement but this will work for present purposes now suppose at the same time that we have this uh plaintiff suit pending against the defendant the denise defendant has denied paul's claim she's in state court so she filed a general denial saying now you have to prove everything but she also pleads an affirmative defense now remember affirmative defenses are ones where even if the plane approves its claim you've proved something else that means you're not going to be liable well here the affirmative defense that denise has pled is something called accord and satisfaction and all that means is that for this case denise must show that she paid something of value to paul we call that consideration and that in return paul agreed to settle the claim that was at issue maybe release the contract or release denise from liability and you could see that even if denise breached the contract as paul alleged but if denise proves yeah that's true but paul and i already settled this and i actually paid him some money for it well then denise ought to win based on her claim now the way that would play out is going to depend on who is filing the motion so let's assume that denise defendant wants to defeat paul's claim here we have four elements she could disprove any one of those or in a no evidence scenario at least allege that paul has no evidence of this for example that an agreement existed at all if she could say there was no evidence of that and paul can't show the existence of an agreement in some way then denise ought to win because she has knocked out one of paul's elements and if you remember from the beginning of the course all elements of an elemental claim must be proven so if denise can disprove one of them she wins but let's suppose instead that denise is relying entirely on her affirmative defense that would mean that paul could attack denise's affirmative defense with a motion for summary judgment and say for instance that there's no evidence that you paid me any money to settle a claim and if that's true and denise can't come up with something then denise's affirmative defense would go away but paul would still have to prove his claim for damages now on the flip side both parties if they want to affirmatively prove the parts on which they have the burden of proof whether it's paul's claim or denise's affirmative defense they would then have to prove conclusively all the elements and again that can be challenging but in some cases it is possible so essentially a motion for summary judgment is trying to either prove all elements conclusively or disprove an element and it has to do so in a manner where there is no fact issue no real disputed fact what we call a material fact for for that there must be no genuine issue so that's why summary judgment is not appropriate in all cases now a couple words i want to say about what might be attached to or filed along with a motion for summary judgment and i want to give you a couple of things to remember if you're dealing with such emotion number one unless judgment is sought on a pure legal question for example whether a cause of action exists or not you don't need evidence on that that's just what the law says well then usually the movement for a traditional type summary judgment motion ought to file some evidence supporting the motion that's going to put the burden over onto the other side to respond and that's going to be more effective second uh oh why did we cross out the picture because that shows live testimony being taken in a courtroom and under all forms of summary judgment rule that i'm aware of no live testimony can be taken in a summary judgment proceeding instead it all occurs by writing all testimony has to be offered in a sworn writing that could be in the form of an affidavit which is signed under oath or by deposition testimony and in a deposition the witness is also testifying under oath basically you should remember that in courtroom proceedings or in trial court proceedings what someone says is irrelevant and is incompetent unless it is said under oath and the reason that's important is because a statement under oath is under penalty of perjury and so we generally think that there's much more incentive to tell the truth if it becomes a criminal offense not to tell the truth okay so it's good to file evidence but no live testimony is allowed so moving on all evidence whether it's an affidavit or other documentary evidence maybe the type of maybe a contract that the claim is based on has to be of a type of evidence that would be admissible at trial and that's going to have several implications in planning out one of these motions but one of which is that we want to focus on is this fourth point that affidavits must be made on personal knowledge that's a big requirement in evidence a witness cannot testify except from personal knowledge if if she is a fact witness so if you're gonna say i saw what happened you'd better show that you personally have reason to have seen what happened go back to the car wreck you better have said i was standing on the street corner when i saw and that that would show that you have personal knowledge not well i heard what somebody else said about the accident that's not personal knowledge that's what we call hearsay so it's important to show how a witness has personal knowledge and the evidence must be based on personal knowledge and that's a critical part of the evidence being admissible you can see that summary judgment motions can be fairly involved pieces of legal writing but if you are representing a party let's say you're a defendant in a lawsuit summary judgment motions are incredibly important because they're one of the ways you can short circuit the process and go ahead and end the litigation start reducing the cost if you're a risk manager then you want then anytime there's an opportunity to prevail on summary judgment that's going to be much better for your company all right so what if we learned about motions for summary judgment let's conclude first summary judgment motions are not appropriate for every issue if you're going to have conflicting testimony on both sides i'm sorry but you're not going to get a summary judgment you might ultimately win the lawsuit but you're not going to prevail on summary judgment because there's a fact dispute and that goes to the fact-finder usually a jury so there is a genuine dispute as to material fact there second the burden is generally on the movement the party who's trying to get the summary judgment to show conclusively by admissible documentary evidence so it's produced in some tangible document form even if it's digital it's still it's still documentary and that by that for that reason it is entitled to prevail and again that's the standard not just proof that wins but conclusive proof where in effect there's nothing that can be said on the other side finally we also learned that in a no evidence type of motion the movement can shift the burden to the other side and just say i don't think you have any evidence produce something and that means the other side has to come forward and again that's typically going to be your plaintiff the plaintiff has to come forward and show something so if um if i as defendant say i don't believe there was a contract between us that you can't prove that you have no evidence then all the the plaintiff would have to do there is attach a copy of the document with an affidavit saying here attached is a true and correct copy of the contract that is enough to create a fact issue and that concludes this lesson on motions for summary judgment which are some of the most consequential motions that take place in civil litigation