One of the most critical, if underestimated, aspects of the pre-trial process is the summary judgment motion. These motions were once an underused tool. But attorneys have increasingly utilized them over the past 30+ years. The motions used to obtain a pre-trial judgment in one’s favor, as a matter of law, when there is no material issue of fact. Defendants file these motions most often. However, plaintiffs have begun to increase their usage of summary judgment motions as well.
The legal definition of summary judgment would dictate that evidence is unnecessary since the argument is based on the premise that there is no factual dispute. However, these motions oftentimes involve extensive evidence to argue the existence (or nonexistence) of particular facts. Coupled with the increasing usage of expert assistance at nearly every phase of litigation, an expert’s analysis during the summary judgment stage can affect the outcome of the motion.
What Is Summary Judgment?
The purpose of summary judgment procedure is to promptly dispose of lawsuits in which there is no genuine issue to any material fact of the case. A summary judgment motion then entitles the movant to a judgment in their favor, pursuant to Rule 56 of the Federal Rules of Civil Procedure (as well as similar state procedural rules). Rule 56(c) requires that the parties support their factual assertions with evidence such as depositions, affidavits, stipulations, among others. Rule 56(e) permits the court to make determinations about the facts and whether the movant is entitled to a judgment on the basis of what is set forth.
The potential impact of summary judgment on a case’s outcome, however, was not fully realized until three critical U.S. Supreme Court rulings in 1986. In short, the Supreme Court made motions for summary judgment easier and more likely for a court to grant. The court held that a movant’s evidence must be sufficient to render their adversary’s claim implausible.
What this means for the parties—and the experts that they utilize—depends upon who is making the motion. The burden of persuasion is on the movant to make a prima facie showing of all elements of the case. If the movant does so successfully, then the burden shifts to the non-moving party. They must show that the movant’s evidence is insufficient to establish all of the elements of their case. Alternatively, they may introduce additional evidence that shows the existence of a genuine and material factual dispute.
How Can Experts Help?
The focus on evidence in a summary judgment motion may oftentimes command the help of an expert, beyond the role that they may play at trial. Any expert employed for the purposes of a summary judgment motion should be mindful of the different evidentiary standards and tailor their approach accordingly.
Unlike at trial, parties may submit evidence that’s not in an admissible form with a summary judgment motion. Instead, the party must show only that it would be possible to present the evidence in an admissible form at a trial. As a result, experts do have some leeway in their presentation of the facts. This is particularly true in any reports they may have generated on the issue or declarations that they submit. Some courts, for example, have held that experts are not required to provide reasoning for their opinions in their summary judgment declaration.
It’s important to note the differing timelines between summary judgment and discovery disclosure requirements. Parties typically complete the latter much later. Federal courts have held that parties do not need to conduct discovery before filing for summary judgment. Likewise, expert witness disclosures do not occur until after summary judgment motions. This may result in an expert providing a report or evidence in support of a motion without official witness designation.
However, a lack of witness designation doesn’t necessarily protect an expert from deposition. Some courts have held that experts may still be treated as a witness (opposed to a consultant) and be subject to a deposition—provided the deposition is limited to the foundation of their summary judgment claims. Therefore, depending upon the time of a summary judgment’s filing, an expert may not be able to avail themselves of all discoverable facts. As a result, their opinions may reflect this incompleteness.
However, some evidentiary requirements do not change. Just like at trial, an expert still must demonstrate their qualifications. Further, they must show that they possess the knowledge, skill, and training necessary to provide opinions on the matter. If an expert fails here, the court may use its discretion and refuse to consider the expert’s summary judgment declaration.
Likewise, expert declaration must still set forth opinions based on reliable methodology and reasonably supported by fact. This rule is similar to evidentiary rules requiring experts to disclose the facts or data they relied upon. Experts must also provide this information in any summary judgment declaration. So as a general, good practice rule, an expert’s opinion should satisfy whatever applicable evidentiary standard of the court during trial—whether it be Daubert, Frye, or some combination—during the summary judgment stage.
The civil court system continues to become more and more clogged with lawsuits. As a result, it’s important for all parties to dispose of factually unsupported claims or defenses. A qualified expert should be able to assist in overcoming such an early hurdle of litigation. As such, experts are wise to prepare for participation in a summary judgment motion.