How to File for a Summary Judgment

By David M. Murray, Jr.
The moving party must carry the initial burden of proof in a motion for summary judgment

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In a civil trial, the plaintiff or defendant may file for summary judgment. When such a motion is filed, the moving party is urging the court to find that all of the facts of the case are agreed upon, or are not in dispute, and that the opposing party cannot possibly prevail at trial under the law. The facts are ones "material" to the case and not trivial. The party opposing a motion for summary judgment will get the benefit of the doubt in all cases. When such a motion prevails, the time and expense of a trial can be avoided and frivolous lawsuits prevented.

How to file for a Summary Judgment

If the plaintiff is filing for summary judgment, under the Federal Rules of Civil Procedure, 20 days must first pass following the filing of the original lawsuit. If the defendant is filing for summary judgment, he may do so at any point.

The party filing for summary judgment must carry the burden of proof and establish that there are no issues of material fact that need to be resolved before the court. The burden then shifts to the opposing party to refute the assertions made in the motion.

To support the argument, the party filing for summary judgment must attach documents to the motion that prove there are no issues of material fact to be proved before the court. Supporting documents may include affidavits, admissions of the parties and transcripts of depositions taken before the trial.

The moving party may in some cases be required to appear before the court and make an oral argument in further support of the motion for summary judgment.

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