1) After discovery 

2) When there are no disputed Material Facts.

1) Need to know the cause of action in order to determine the material facts.

2)Need to look through all evidence to prove your facts for the SJ.

• Negligent cases are difficult to win on SJ because negligence is about reasonableness.

When you win an SJ, the case is over (assuming the SJ is granted for all causes of action).

What courts are more or less likely to grant motions for SJ?

Can courts grant SJ on their own?

Federal courts are more likely to grant SJ and state courts are less likely.

A court has the power to grant an SJ on its own; however, it is extremely rare but can happen.

Affidavit (definition)

Can new info be introduced in an Affidavit filed after Discovery closes?

Affidavit = Formal Written sworn statement.

Once discovery closes, no new addition information can be added so putting new information into an affidavit can be shady.

1) Read Local Rules (so you need to know what court to file in.) and determine if any apply

2) If not, Pull together all material facts that are not in dispute and search for information that would be helpful.

SJ not about trying to prove claims (i.e. damages) but the need to prove the cause of action. Gather all proof together an to piece together material facts.

3) Prepare a list of all docs and read information.

4) Have a theory of what happened and have your legal information in place.

        If you can prove that the defendant violated the law, you can prove negliegence per se.

What to do regarding criminal charges against the defendant relating to your suit (assuming you are for plaintiff)?

and why is this important

If you can prove that the defendant violated the law, you can prove negliegence per se.

You can lobby the prosecutor to enter the highest criminal court possible. If it goes to court and the defendant pleads guilty = admits proof.

SJ cannot be granted if discovery is incomplete or if there is a genuine of material fact.

To defeat plaintiff’s motions, they must show the court that either there is a dispute regarding a material fact related to a cause of action, or that there are facts that support an affirmative defense

1) Be very factually specific in the pleading

(if you state the facts wrong, you will automatially loose).

2) Choose only the winning arguments for issues.

   (therefore, choose only the battles you can win).

3) Do not reach to far in your motion because you will loose credibility with the court.

What do we have in our Motions for SJ?

And why are these things called Proposed?

We include prepared orders in our motions for summary judgement.

We call them proposed because a judge hasn't signed them yet.

Yes, courts can issue orders on its own but it is rare.

(i.e. courts can issue an order of contempt when in court on its own.)

Interlocutory Appeal- definition

When to file in relation to SJ?

In the law of civil procedure, is an appeal of a ruling by a trial court that is made before the trial itself has concluded.  (wikipedia)

After a judgment of granting partial SJ, you can file an appeal before the whole suit is over.

How often are Interlocatury appeals granted in fed court?

In State Court?

In Federal court, they are rarely granted b/c the feds typically want you to wait until the trial is completely over.

They are more commonly grant in state courts.

• Basically says that a judge is so bad that you need a new one. 
• You should only do this when you know you will win it becuase you are essentially accusing a judge of malpractice.
• They are frequently filed for issues of partiality
• This is more of a common law issue

What does SJ decide?

What does it not decide?

An SJ only decides liability.

It does not decide damages.

How do settlement negotiations start?

Frequently a demand letter demanding an amount of damages is sent to the defendant's counsel.

However, the settlement process can start via letters, phone calls, in the hallway of court, etc.

What is ADR?

Does a settlement fall under this?

ADR = Alternative dispute resolution.

Settlement is a form of ADR

After you decide to settle, creat a relase form.

After the release is agreed upon and executed, then you request for the court to dismiss the case.

In order to settle a case, you must have authority to do so.

When you have a POA (power of atty) it means you have authority to settle.

Are negitionations confidential?

Why or why not?

Federal Rule of Evidence Rule 408(b)

Releases the defendant partially from liability from the claims or causes of action 

(i.e. if you have both a negligence claim and a malpractice claim, you could have a release for one but not the other).

Do you need a caption in a release?

Is a release filed with the court?

Stipulation of Dismissal

Is it filed with the court?

The parties to a lawsuit may stipulate dismissal at any time and on any terms.

Yes, it is filed with the court.

A court order or judgment that ends a lawsuit. A further lawsuit may be brought by the same persons on the same subject.

Basically you can reopen the case.

A court order of judgement that ends a lawsuite. No further lawsuit may be brought by the same person on the same subject.

Basically you can't go back and sue again.

Would you file a stipulation before filing a law suit?

Can you settle before filing a law suit?

No, you would not file a stipulation before filing a lawsuit. 

But you can settle and draft a released before a lawsuit is filed.

A motion to dismiss is filed in lieu of a an answer.

An SJ is filed post- discovery