Summary Judgment — Anything Goes?

May 31, 2011

For the past 10-15 years, motions for summary judgments and supporting briefs have proliferated. Unfortunately, the summary judgment briefs often advance arguments that are, at best, disingenuous and sometimes frivolous. Today, courts tend to grant summary judgment motions in alarming numbers. Many of these motions would have been summarily rejected 10-15 years ago.

This appears to stem from the legal equivalent of the Al Davis’ “just win baby” philosophy. Computer-based research allows attorneys to pluck quotes out of context and use them to buttress arguments lacking substantial legal merit. The defense cites fragments of cases as authority, even if these pieces do not reflect the case as a whole. Briefing on these motions seems to be a trend among younger lawyers looking to please senior partners.

In older cases, it is easy to find language that has never been expressly overruled, but does not represent the current state of the law. As foreign litigation becomes increasingly accessible, attorneys are beginning to cite foreign cases without the legal or factual context in which they were decided.

Not all briefs suffer from these shortcomings. However, the trend is growing increasingly popular, often in the context of motions on negligence issues, which are traditionally fact driven. These motions and the briefs can present a real challenge.

Responding to a focused and well-reasoned argument is much easier than trying to find order in the chaos of superficial arguments. It takes patience and a reasonably deft hand to pick out the fallacies in arguments without belaboring the obvious or completely dismissing the arguments altogether.

It is difficult to find the balance between thoroughly briefing an issue and putting the judge to sleep. While less may be more in most contexts, it is dangerous to assume that the judge knows the particular area of law as well as you do. Lawyers see issues of this sort on a regular basis. Many judges do not come from a civil practice background and the realities of our rotation system mean they are not immersed in personal injury issues. Furthermore, recent experience suggests that judges are more receptive to these motions than ever before.

Our Experience
In the past year, we have dealt with two classic examples of this aggressive approach to summary judgment. In one case, our client was injured by a motorist who crossed the center line and struck his vehicle. There seemed to be no issue with respect to liability until the defense filed a summary judgment motion arguing that the accident had been caused by black ice. They cited the skidding instruction and cases arising from that instruction and argued that their client could not be found negligent.

Given the fact-driven analysis of most negligence cases, this motion was particularly startling. Even more startling, however, was the fact that the other driver was intoxicated at the time of the accident and there was evidence that there had not been any ice at the scene.

In a more recent case, our client was injured when a mass of ice and snow fell from a sign over the entrance to a business and struck him on the neck, causing serious injuries. This appeared to be a fairly standard, if somewhat unusual, negligence/safe place case—the sort of fact-driven case that would rarely trigger a motion for summary judgment in the past. However, the defense produced a laundry list of arguments in support of their motion. They first argued that their client owed no duty to our client and suggested that forseeability required that the specific injury be foreseeable. Those arguments were bolstered by highly selective citations from a handful of cases.

The defense also contended that in order for the client to be found negligent, the conduct must have created a probability of harm, not a mere possibility. Their brief cited language from several 40-year-old cases, which could be read as supporting the proposition. The position is, of course, directly contrary to jury instruction and common experience, which tells us that if probability of injury was necessary for negligence, it would be a rare act that could be characterized as negligent.

The defense also argued that the snow and ice represented a natural accumulation, and therefore their client could be found liable. They cited Wisconsin cases that dealt with public sidewalks adjoining private property, but neglected to note the cases’ limited application. In this case, the injury occurred on private property under completely different circumstances.

They also argued our case was identical to an unpublished Ohio appellate decision, where a woman was injured by a fall of ice and snow from a sign. That case actually turned on the fact that the woman had knowingly encountered an obvious hazard, which barred recovery under Ohio’s approach to the Open and Obvious Danger Doctrine. In Wisconsin, the Open and Obvious Danger Doctrine is simply part of a comparative negligence analysis and would not bar recovery. Moreover, our client had been unaware of the ice until it hit him.

Finally, the defense argued that we could not pursue the case in the absence of expert testimony. They quoted cases, which addressed the relatively limited set of situations in which an expert is required to maintain a claim. They also suggested they should be read as requiring expert testimony to maintain a claim.

The argument was particularly interesting in that their own expert had done no research or testing and was not relying on any published literature for his opinions. Essentially, the expert was offering opinions on the ultimate fact question, which would have invaded the province of a jury. Information from his deposition was important to our response to the motion. Given the current penchant for converting summary judgment to a trial on briefs and affidavits, the scheduling order should allow adequate time for discovery in advance of briefing.

When confronted with motions and briefs of this sort, attorneys can head the motion off at the outset, addressing it on its merits, or seek sanctions at specific parts of the motion.

We make every effort to resolve issues cooperatively. I do not advocate threatening sanction every time there is an undesirable motion. In most cases, simply responding to the motions on the merits works; the courts are good at distinguishing reasonable and unreasonable notions. That said, responding to these motions takes a significant amount of time and energy. It is appropriate to take steps to try to curtail motions without merit as early as possible and to discourage the defense from filing motions of this sort in the future.

In our “black ice” case, I contacted one of the senior partners who was handling the file and told them I believed their motion was frivolous. I also suggested that someone might want to speak with the young lawyer who authored the brief about the limits of advocacy. The motion was withdrawn without the expense of responding or the rancor of filing the request for sanctions.

Nobody wants to argue over “frivolous” claims. That said, the new law on frivolous claims provides some additional leverage. Once you have fired a warning shot across the bow, the court is now required to award costs if a claim is determined to be frivolous. There is even the possibility of costs if a claim is withdrawn. I think that creates additional incentive for the defense not to pursue motions which are without merit.

In addition to the potential for costs, frivolous motions raise ethical concerns. At least two sections of the Rules of Professional Conduct bear on meritless motions and briefing. Section 20:3:1 prohibits knowingly advancing a claim or defense that is unwarranted under existing law unless good faith argument exists for a modification of existing law. In the vast majority of cases where we have encountered this sort of briefing, the defense is not arguing for a change in the law, but asserting that the existing law in fact supports their position when it does not.

Section 20:3.3 says a lawyer may not make a false statement of law or fact to a tribunal or fail to correct a false statement of material law or fact. That clearly prohibits advancing or maintaining a legal position which one knows is not correct. In some cases, it may be appropriate to raise those ethical concerns directly with the lawyer, or more rarely with the court. This certainly has to be done with great care, considering courts do not like becoming embroiled in these sorts of disputes.

In most instances, we simply deal with a defense brief on its merits or lack thereof. The first step is to make sure that we have every word of every case that is cited by the defense and track the history of those cases. We frequently find language within the cited cases that is inconsistent with the arguments being advanced by the defense. In some instances, we find language that the defense relies on has been overruled or criticized. In a few memorable instances the case itself has been overruled.

What is most common is language which has been divorced from its factual and legal context and is being advanced as supporting a position which a reading of the case as a whole does not support. This makes the case readily distinguishable and the court is clear that the defense’s approach is misleading. We try to avoid words like “deceptive,” “disingenuous,” or “dishonest” simply because, accurate or not, it is a bit off putting. We prefer something a bit softer, such as “the approach taken by the defense either misperceives or mischaracterizes the law.” In many instances, directly addressing the shortcomings in the defense brief accomplishes that without editorializing.

Many defense briefs avoid addressing any law which is not favorable to their cause. That opens the door for a response which not only cites that law, but also points out the defense’s error. No one likes to be mislead. If it appears that the defense has either failed to cite relevant authority as required by the ethics code or has cited cases improperly, judges will not favor their argument.

The standards on summary judgment are so well-established that they are often only mentioned in passing. We think it is important to emphasize those standards in light of the increasing tendency in defense briefs to suggest that somehow the burden on summary judgment lies with the plaintiff once the defense has advanced a prima facie argument.

There is a wealth of case law which confirms that summary judgment is a drastic remedy and should only be granted under very certain circumstances. The case law also says that a motion for summary judgment should not be arial on affidavits or briefs, but this is precisely what the defense has been doing. Many of us tend to gloss over the section of the brief that address these standards because they are so well known, but in light of current trends, it is important to address those standards both in briefing and in argument.

At the end of the day, the judge denied the motion in our safe place case. We were fortunate enough to have a judge who saw through the defense tactics and did not require us to respond to their oral argument. Still, a significant amount of time and energy went into responding to their meritless arguments.

While we still prevail on the majority of summary judgment motions brought at the trial level, the number of appeals to a grant of summary judgment has increased dramatically in the past 10 years.

Most judges are not fond of having their time imposed on. The best home for deterring or discouraging some of these motions in the future lies both with approaching the issue directly with experienced defense counsel and when appropriate, asking the court to take steps to sanction motions or briefs which are simply without merit. Many of us have been reluctant to take these steps, and they may have served to enable these efforts by the defense. While these motions do not succeed in most cases, they do present a concern and a challenge which we must continue to meet.

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For more information about "Summary Judgment — Anything Goes?," contact Mike Riley at mriley@axley.com or 608.283.6778.