Previously on Law & Order: Hard Hat files [chunk-chunk], we discussed how to know when a lawsuit is coming, how you will be sued, why you should not be your own attorney, and why documentation is key. We’ve also discussed being deposed, hiring experts, and mediation. We’re coming to the top of the 9th now, discussing how to have your case decided by a judge. [Next up: the jury trial].
Your lawyer has told you that your case might be heard on legal issues alone, before a judge. Or he’s mentioned that he is filing a motion for “Summary Judgment”. What, exactly, does that mean? To understand summary judgment, it is first necessary to understand how a typical case is heard.
In a case that goes to a jury trial, it is in fact the jury, not the judge, who decides the case. The judge handles order in the courtroom, the admissibility of evidence or witnesses, and other legal issues. But at the end of the day, the factual issues (that is, was your plan defective? If so, what if any damages did that defect cause?) are decided entirely by the jury. Most of the time.
So what’s this thing called “summary judgment”?
Sometimes, there are no real factual issues in dispute. In that case, the judge can decide the matter on the legal issues alone. For example, if you are sued after the expiration of the statute of repose, and there is no debate about when you last performed professional services on the project, then your lawyer can bring a motion to have the judge decide the case in your favor purely on that legal issue.
Most construction cases, however, are not so clear cut factually. However, you can still have a judge decide a case on summary judgment if the disputed facts, taken in the light most favorable to the other side, still show that you should win.
What happens when you file for a summary judgment hearing?
Either side can file a paper called “Motion for Summary Judgment”. This is usually done during or after discovery, as factual issues are determined and the list of truly disputed items is narrowed. Both sides have an obligation to present evidence as to why/why not the judge should grant the motion. Evidence can include affidavits (including your own and that of your expert), discovery responses, deposition testimony, and documents produced in discovery.
How does the judge decide?
The judge is required to take the factual evidence in dispute, and assume that the non-moving party’s version is correct. For example, let’s say you are moving for summary judgment based on the statute of repose. You claim that you last performed work more than 6 years before the lawsuit was filed. If the other side has some evidence that work was done later than you claim, then that is a dispute of a material fact. The judge will have to assume that the other side’s date is correct, and deny the motion for summary judgment on those grounds.
If, however, the disputed facts are not material (that is, not crucial to the deciding law), then the judge does not need to even consider them. And no one can rely on bare assertions of fact (of the “nuh-uh” variety): they have to produce some evidence of their position.
How will we know if we won or lost?
This varies from judge to judge. In general, unless the case is clear cut, the judge will want to take the case “under advisement”. What that means is that the judge is going to review the presented materials, make a decision, and then call the lawyers to tell them how he/she has ruled on the motion.
What does it mean if we lose summary judgment?
If you are asking for summary judgment and lose (and in close calls, expect to lose as judges prefer that cases go to a jury), then the denial of your motion for summary judgment means that the show goes on. Discovery can continue, and the case will be prepared for trial.
Of course, just because mediation has impassed and summary judgment has failed does not mean there *will* be a trial. Many cases continue to be negotiated and settled “on the courthouse steps”. Literally sometimes.
If your case does not, next week’s entry on jury trials should be required reading.
Have a question about summary judgment or other court motions? Drop me a line or comment, below.
As I state in the post, just as licensing issues and building codes differ, so too do the laws. Your best defense? A good offense. Get help specifically tailored to the new state up front so you won’t get pinched later on. In other words, don’t be a cheapskate!
I have previously discussed the 
They can include:
Bottom line: waiver of consequentials can be a good thing or a bad thing, but you will not know which when you are signing on the dotted line.