A motion for summary judgement should be defeated.
Resolving disputes over issues of fact is the purpose of a civil trial.The other side can file a motion for summary judgment before the trial.The case comes down to a question of law for the judge to decide, because this motion claims there are no facts in dispute.To defeat a motion for summary judgment, you need to show that there is at least one dispute over a fact that is important to the case.
Step 1: You should consider hiring an attorney.
You will be expected to understand the court's rules of evidence and civil procedure if you respond to a motion for summary judgment.If you can't afford an attorney to represent you for the whole case, you might consider having one look over your response to summary judgment and help you through the process.
Step 2: Carefully read the motion.
If you want to respond to your opponent's motion, you need to know what he is arguing and what evidence is used as support.As you read, take notes.Write down your opponent's citation if they cite any rules or case law.Write down the piece of evidence if he references it.
Step 3: If you want to file a motion, check the procedural rules.
Make sure the other side complies with all the rules.You may be able to get the motion thrown out if he has not.If the other side served you wrong, the motion can be dismissed.If you file a response opposing the motion, the court will consider any objection for violating procedural rules.Before you start working on your response, you should review the rules of procedure the other side needs to follow.
Step 4: Make a note of the deadline and any other parameters.
Don't assume you will get an extension or a free pass just because you're not an attorney, follow the court's time and page limits precisely.You have 30 days to respond to a summary judgment motion.The deadline is as little as 10 days in some states.To mark the date on your calendar, check the rules of the court in which the motion will be heard to make sure.
Step 5: The standard for a summary judgment motion is reviewed.
If the party who filed the motion can prove that there is no genuine dispute regarding a material fact, the judge will grant the summary judgment motion.You must know the elements of the alleged offense to know which facts are "material" to the case.One of the elements of an offense is material facts.Suppose you went to the zoo and slipped and fell on a banana peel.If you can show that the zoo was negligent in clearing the walkway, they would be liable for your injuries.The duty to prevent accidents is one of the elements of negligent behavior.An established schedule would show that the zoo took responsibility for keeping the walkway clear.The color of the zoo employees' shirts wouldn't be a material fact.The zoo's responsibility for keeping the walkways clear wouldn't be affected if their shirts were green or blue.
Step 6: Research case law.
Statutes and rules are not the only things that the U.S. courts ground their decisions on.There is a database of court opinions on the website of your state's highest court.You can visit the law library at your local courthouse if there is not a law school nearby.The cases were filed by your opponent.If you can find a way to argue that those decisions don't apply to your case, compare and contrast those cases with your own.There are cases that are similar to your own where the decision supports your argument.
Step 7: Evaluate the evidence in your case.
There are pieces of evidence that show a dispute over a factual matter.If your case involves a traffic accident, your opponent might argue that everyone agrees the light was red.A dispute over an important fact in the case can be created by a witness who claims the light was green.Attach an affidavit from that witness to your response to the summary judgment motion.
Step 8: Your caption needs to be created.
The names of the parties and the case number are included in the caption.Since the information in your case is the same in all documents, you can simply copy it from a previously filed document.
Step 9: Title your response.
The court knows what your document is about by your title."Response to Motion for Summary Judgment" is what your title would be here.The title is usually two lines below the caption and in bold-face type.You can use the previously filed documents as a guide.
Step 10: Begin your response.
If you are responding to the other side's motion for summary judgment, you should state that you believe it should be denied.
Step 11: Start your response with the best reasons to deny the motion.
You don't want to waste her time.Tell her why you think the motion should be denied.Lead with your best argument, then your second-best, and so on.Mention the counter-arguments the other side might raise and explain why they are wrong.Tell the court what evidence you have to show that the issue is a material fact and that it remains in dispute by using one numbered paragraph for each fact.
Step 12: Your concluding paragraph should be written.
In your last paragraph, state that you are asking the court to deny the motion for summary judgment.
Step 13: You can format your signature block.
Drop down a couple of lines, then type "I swear the information contained above is true and correct to the best of my knowledge and belief."Drop a few more lines and type a blank line.To aid the court or other parties in contacting you, type your name, address, phone number, email address and any other information under your signature line.
Step 14: If necessary, include a notary block.
If there are any statements of fact in your response, you may have to have it notarized.You can find the appropriate block online, then copy and paste it below your signature block.
Step 15: There is a certificate of service.
You can find a specific form for the Certificate of Service on the website of your state's highest court.If your state does not have a Certificate of Service form, you should use one of the previous documents in your case.Attach the document to your response if you change the name and dates.You should not serve the individual if the other side is represented by an attorney.
Step 16: You should sign your response.
You can't sign your response until you are in the presence of a notary.Many banks offer free services to their customers.It is possible to find notaries and courthouses at private businesses, but you may have to pay a small fee to use them.
Step 17: Make copies of your response with any attachments.
You probably will need at least three copies of the entire packet if you check with the clerk's office.
Step 18: Take it to the clerk's office.
Take your original documents with you to the clerk's office.The clerk will stamp your copies "filed" if you pay the filing fee.A fee is not charged for a response to a motion.Fees vary between courts but generally are less than $100 for a response to a motion.
Step 19: You can serve your response to the other party.
If you don't send a copy of your response to the other side, they'll never know you filed it.You said you would use the same method in the certificate.You don't have to personally serve your response to certified mail.When service is completed, keep your certified mail receipts as well as the notice you get back.
Step 20: Wait for a reply from the other side.
Most courts give the side that filed the motion an opportunity to respond with a shorter deadline.It will be mentioned at the hearing if anything is mentioned in this response.Try to find arguments to back up the claims.
Step 21: Attend your hearing.
The clerk scheduled a date for the hearing of the other side's motion.When the hearing is scheduled, check the notice you received with the motion.Arrive at court early so you have plenty of time to park and go through security before your hearing.Don't leave your cell phones or electronic devices in your car or home, dress conservatively and respectfully.Speak to the judge, not the opposing side or their attorney.Stand and address the judge as "Your Honor"
Step 22: The other side is arguing.
The first opportunity to speak will be given to the party who filed the motion.If your opponent raises points that you want to dispute, you should take notes and pay attention.You will get your chance if you don't interrupt him.
Step 23: Give your argument.
After the other side finishes, you will have the chance to speak to the judge and explain why the motion should be denied.You should be prepared to answer any questions the judge has.
Step 24: Wait for the judge's order.
The judge will make her decision after hearing both sides.You might have to wait to receive an order in the mail if she tells you right then.A partial summary judgment is when the judge can grant the motion in its entirety or deny it in part.The prevailing party will be expected to draft the motion by the judge.Someone on the judge's staff may draft it.You need to know how to get a copy of the order.If you are asked to prepare the order, follow the same format as you did for your response.The date the hearing was held, the title of the motion argued, and what the judge ruled are all listed in the body.You can find the judge's signature block on an old order or from the clerk.
Step 25: If you wish to file an appeal, consider it.
Your case will not go to trial if the judge does not rule in your favor.Within 30 days of the ruling, you have the right to file an appeal.To find out when your deadline is and what documents you have to file, check your state's rules of appellate procedure.