Summary Judgments:Summary Judgments:A ReviewA Review

© Prof. Njeri Mathis Rutledge© Prof. Njeri Mathis Rutledge

MSJ vs. Memorandum of LawMSJ vs. Memorandum of Law

Most “combined” in oneMost “combined” in one Okay to have separateOkay to have separate Focus on local rulesFocus on local rules

IntroductionIntroduction

What do you want?What do you want? IntroductionIntroduction

PartiesParties Nature of motion/relief soughtNature of motion/relief sought

Summarize legal & factual basisSummarize legal & factual basis

No citations (local rules)No citations (local rules)

IntroductionIntroduction

Introductory paragraph – Introductory paragraph – State your conclusion – persuasivelyState your conclusion – persuasively

Ex: The issue is whether the imposition of Ex: The issue is whether the imposition of a true life sentence violates the 8a true life sentence violates the 8thth Amendment vs. The imposition of a true Amendment vs. The imposition of a true life sentence on a twenty-one-year old life sentence on a twenty-one-year old heroin addict violates the Eight heroin addict violates the Eight Amendment.Amendment.

lay out the lay out the relevantrelevant rules that justify rules that justify the conclusionthe conclusion

FactsFacts

Undisputed vs. DisputedUndisputed vs. Disputed Statement of FactsStatement of Facts RelevantRelevant PersuasivePersuasive Cite to the recordCite to the record

FactsFacts

Context before detailsContext before details On June 15, Plaintiff Jones Engineering On June 15, Plaintiff Jones Engineering

contracted with Defendant Smith contracted with Defendant Smith Associates to build a parking garage. . . .Associates to build a parking garage. . . .

This case arises out of a construction This case arises out of a construction contract. One June 15, Plaintiff Jones contract. One June 15, Plaintiff Jones Engineering contracted with Defendant Engineering contracted with Defendant Smith Associates to build a parking Smith Associates to build a parking garage. . . .garage. . . .

Point-HeadingsPoint-Headings

Outline your argumentOutline your argument Single simple sentencesSingle simple sentences PersuasivePersuasive Should include what you want the Should include what you want the

court to docourt to do Examples p. 2-3Examples p. 2-3

Summary Judgment StandardSummary Judgment Standard

Can be before or after Argument Can be before or after Argument sectionsection

Identify rule related to summary Identify rule related to summary judgments. Federal court Rule 56.judgments. Federal court Rule 56.

What is the local rule (state court)What is the local rule (state court)

Argument: OrganizationArgument: Organization

Let the cause of action guideLet the cause of action guide Negligence – duty to warn – learned Negligence – duty to warn – learned

intermediary doctrineintermediary doctrine Organize around elements & factors Organize around elements & factors

(point-headings & sub-points)(point-headings & sub-points) Remember IRACRemember IRAC

Argument: AnalysisArgument: Analysis

Logical, thoroughly developedLogical, thoroughly developed Start w/ statement of conclusion – Start w/ statement of conclusion –

what should happen/ what should the what should happen/ what should the court do?court do?

Rules – state in the light most Rules – state in the light most favorable to the clientfavorable to the client

ArgumentArgument

Quote key language – statute, rule or Quote key language – statute, rule or regulationregulation

Otherwise, quote sparinglyOtherwise, quote sparingly Avoid cut & pasteAvoid cut & paste Cases should be paraphrasedCases should be paraphrased

ElementsElements HoldingHolding factsfacts

CRAC,IRAC,CREACCRAC,IRAC,CREAC

11stst section section (issue/conclusion/contention) and (issue/conclusion/contention) and some of the rulesome of the rule

Overview paragraphOverview paragraph 22ndnd section (argument/analysis) section (argument/analysis)

including giving a case descriptionincluding giving a case description

Discussion of the LawDiscussion of the Law How much is enough?How much is enough? Discussion should be thoroughDiscussion should be thorough Parentheticals can be helpfulParentheticals can be helpful

Can provide details of the facts or clarify Can provide details of the facts or clarify the holdingthe holding

Punctuation and complete sentences are Punctuation and complete sentences are avoided unless quoting an entire avoided unless quoting an entire sentencesentence

First word is lower case; present First word is lower case; present participle (end in –ing) Rule 1.5participle (end in –ing) Rule 1.5

Example p. 4 last sentenceExample p. 4 last sentence

ConclusionConclusion

Restate overall themeRestate overall theme Essential reasons why you should winEssential reasons why you should win Do not repeat the body of argument Do not repeat the body of argument

sections (what was the essence)sections (what was the essence) Tell the court what relief you’re Tell the court what relief you’re

asking for:asking for: We urge the court to grant/deny or We urge the court to grant/deny or

the Court should . . .the Court should . . .

GoalsGoals

ClarityClarity BrevityBrevity SimplicitySimplicity

WORD CHOICEWORD CHOICE

Choose words carefully by asking 3 Choose words carefully by asking 3 questions:questions:

Is it a simple word?Is it a simple word? Is it a correct use of the word?Is it a correct use of the word? Is it a persuasive word in this Is it a persuasive word in this

context?context?

Common MistakesCommon Mistakes

Severe vs. severSevere vs. sever Pervasive vs. persuasivePervasive vs. persuasive Statue vs. statuteStatue vs. statute

Prune other redundancies.Prune other redundancies.

A distance of two milesA distance of two miles A period of one weekA period of one week At a later dateAt a later date During the month of OctoberDuring the month of October Postponed until laterPostponed until later

Avoid redundant numeration.Avoid redundant numeration.

Ten (10) women were going to the Ten (10) women were going to the store.store.

Limit words and phrases like the Limit words and phrases like the following, which are often following, which are often

meaningless.meaningless.

ClearlyClearly I am of the belief thatI am of the belief that It is obvious thatIt is obvious that To be sureTo be sure To tell the truthTo tell the truth

Avoid compound prepositions Avoid compound prepositions and prepositional phrases.and prepositional phrases.

As a consequence of – As a consequence of – consequentlyconsequently

For the reason that –For the reason that –becausebecause

In order to –In order to – toto Until such time as –Until such time as – untiluntil

Eliminate Eliminate of the of the and and of a of a phrases.phrases.

Papers of the lawyer – the lawyer’s Papers of the lawyer – the lawyer’s paperspapers

It is of a soft substance – it is softIt is of a soft substance – it is soft

Avoid Avoid it isit is and and there arethere are clauses. clauses.

It is true that the defendant failed to It is true that the defendant failed to testify.testify.

The defendant failed to testify.The defendant failed to testify.

There are many cases that deal with There are many cases that deal with adverse possession of islands.adverse possession of islands.

Many cases deal with adverse possession Many cases deal with adverse possession of islands.of islands.

Avoid NominalizationsAvoid Nominalizations

A simple verb that has been converted A simple verb that has been converted into a wordy noun phrase is called a into a wordy noun phrase is called a nominalization. Try active verbs insteadnominalization. Try active verbs instead

Give consideration to - ConsiderGive consideration to - Consider

Lodge an objection - ObjectLodge an objection - Object

File a lawsuit - SueFile a lawsuit - Sue

Make sure pronouns have clear Make sure pronouns have clear antecedents.antecedents.

Antecedent = word a pronoun refers toAntecedent = word a pronoun refers to Ambiguity occurs when there are multiple Ambiguity occurs when there are multiple

possible antecedentspossible antecedents

Mr. Johnson told Mr. Smith that his Mr. Johnson told Mr. Smith that his truck was in an accident.truck was in an accident.

The Commission admitted that the The Commission admitted that the regulation was unclear. This is regulation was unclear. This is unfortunate.unfortunate.

New Deadline Extension for trial New Deadline Extension for trial briefs: Thursday, March 1briefs: Thursday, March 1

750 pages to grade750 pages to grade