Summary Judgment

Posted on May 19th, 2013 by John Hennan

There is, in the lawyer’s toolbox of legal maneuvers and tactics, a rather severe and threatening concept referred to as “summary judgment.” The title not being ironic, when a party makes a “motion for summary judgment,” they do one of two things: (1) for a “traditional” motion for summary judgment, a party seeks to have their lawsuit disposed of early on, before trial, by proving to the Court that their claim or claims are proven and rightful as a matter of law—that there are no “genuine issues of material fact” regarding any single element of a particular claim; or (2) for a “no-evidence” motion for summary judgment, the moving party seeks to have the other party’s claims dismissed due to an essentially complete lack of evidence.

Again, summary judgment is a pretty harsh remedy, and judges don’t exactly hand them out like candy. Further, summary judgments are sought most often in the context of civil and commercial litigation. Often cases with clear contracts that were not breached in some obvious way, for instance, might qualify for summary judgment. Less frequently do you see the mechanism used in the family law arena. Why?–well, I am not entirely certain. I do suppose that it has something to do with, first, tradition and things being done the way they’ve been done before, and second, because family law cases, often full of issues regarding divorce, child custody, etc., don’t really have “claims” in quite the same way that a personal injury or breach of contract lawsuit would. However, summary judgment is just as available for family law issues and claims as it is in any other area.

Being a younger attorney and having my own practice, I do enjoy being a bit innovative and going against the grain when I get a chance. I also admire other attorneys when I see the kind of intellect and creativity required to lend a custom, innovative approach to their clients and cases. A friend of mine is doing just such a thing tomorrow morning.

I’ll just call him “Atticus.” Atticus is going forward on a no-evidence motion for summary judgment against a much more established and experienced firm, seeking to have the opposing party’s claims regarding certain divorce and property issues dismissed for want of any real evidence. And why not after all?–Months and months have passed since the divorce was filed, discovery (exchanging of documents, records and other information relevant to the case) has been fully and openly conducted, and the opposing party, while making some very pointed and severe claims, has offered next to no actual evidence for such allegations. Summary judgment on these issues would actually allow the parties to finish up the divorce process quickly, evenly, and fairly. Nobody would have to keep paying their attorney to argue in court about groundless claims and accusations. Wouldn’t that be great?

As an example, the opposing party in this case has alleged “cruel treatment.” Now, I do not make light of the fact that there is an abundance of cases out there that involve abuse and neglect of one kind or another, but, there has been no cruel treatment in this case. How do I know?–well one, the legal standard for cruel treatment is really quite high (we are not just talking about being mean or a hateful person to your spouse), and two, because there has been NO EVIDENCE of that cruel treatment offered at any level – not even basic testimony as to a single event. Why then would the opposing party’s attorney allege it? – because it is, in the old way of doing things, common practice to just allege cruel treatment at the beginning of a divorce, because, cruel treatment is one ground that a court can consider in deciding to award a disproportionately larger amount of the community estate to a spouse, thus giving them, at some perceived level, a harder bargaining position and more aggressive posture in the case.

Atticus is attacking this old way of doing things and the silly, useless but time-consuming, groundless mudslinging tactics that so many of us lawyers think we are supposed to do, and seeking a quick resolution for his client who is relying on him. Even if they do not prevail, Atticus will have forced the other side into laying out all of their best evidence, which will be tremendously informative going forward in the case.

Innovative, effective, and zealous advocacy. Bravo.