Pre-Trial Advocacy

7 April

• Summary judgment. A defendant's best friend: in nearly all cases, the defendant will move for summary judgment at some point. To narrow the case down, to lock the plaintiff into some position, or even to win. But also to learn more: it's kind of a mini-trial-- there are no witnesses, but you can nail down what is contested, and what the points of law are.
• FRCP 56(a). You can do partial summary judgment. You can also move on the basis of claims or defenses (or parts thereof).
• It has to be a genuine dispute about a material fact to survive.
• If facts are unavailable, you can move for more time to get more discovery.
• Timing your motion for summary judgment is important: you might want to do it early, but be advised that this lays out a roadmap for the other party: they can move for more time and target their discovery based on that. So think about the pros and cons of timing. Early can save a lot of money, but it also tells the defendant what discovery they need to take, and all they need to find is a disputed material fact. So think about not filing early unless it's a slam dunk. Clients always want to file ASAP, but we need to counsel them about this risk. Facts will be different, depending on what the deponents think the issues are.
• "Genuine issue" and "material fact:" Anderson v Liberty Lobby, Inc. 477 U.S. 242 (1986). See also Celotex. and Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986).
• Start with the standard cases, then go to the ones that are relevant for your circuit. Include citations to cases granting or defeating summary judgment on the same type of claim as your case. Avoid appellate cases reviewing a jury verdict (because they went to a jury). So use cases in the same procedural posture as yours.
• Plaintiffs very rarely get summary judgment.
• Federal courts love summary judgment (about 50% of cases are disposed of this way). Far less so in state court, though there are regional variations. Dane County, e.g., is generally more summary-judgment-friendly.
• Moving for summary judgment is also a good way to encourage settlement. Timing, again, is critical: do we want to try to settle while the motion is pending, or wait till after? After might be more expensive.
• Mauet gives some spotty advice on weaknesses of summary judgment. Esp., a consulting witness's file will be discoverable if you file a motion citing his/her affidavit, and they'll be deposed. This is not a safe way to protect your trial expert.
• Note that appellate review is de novo, but review of a jury verdict is very deferential. So appeal of a summary judgment result is pretty much like a do-over.
• Non-dispositive motions (i.e., motions to compel, etc.). Remember that judges hate discovery motions: therefore, if you can resolve something without a motion, you do so. Call, memorialize in a letter, ask nicely and specifically. Then try again, memorializing the lack of response, and say that if you don't hear, you'll be forced to file a motion to compel. You don't have to accept deficiencies in discovery, but you do have to be nice about it. Check local rules about pre-requisites for motions to compel, also.

  Except for requests to admit, be generous with extensions. Assuming you're not up against some terrible deadline (like a noticed deposition or a scheduling order), and it's not a request for admission, just say yes.

• The Western District of WI will not issue a protective order unless it's in the form that they require, and it's not easy to find that form.
• If there's a punitive damages claim, it's a good idea to move that the issue of punitive damages be bifurcated and stayed till later. You might even be able to stall discovery on the wealth of your client, but at least you can keep it from being disclosed at trial.
• WI has the Direct Action Statute: you can discover all insurance policies that might cover the case. Insurance policies are always discoverable (see also FRCP 26).
• IME=Independent Medical Examination
• IVE=Independent Vocational Examination
• You're unlikely to get fees in state court. If you do get it, that's a big deal: it creates a lot of leverage.
• When in doubt about procedure, call the judge's clerk.
• Oral argument: strive for dialog with the court.
• Trial court decisions can be cited.
• Ask the clerk if the judge is likely to have read the brief, or to have already written the decision: this will help you know how (and how much) to prepare.
• Often, by the way, motions for summary judgment are decided without oral argument.