One of the most critical, if underestimated, aspects of the pre-trial process is the summary judgment motion. Once an underused tool, motions for summary judgment have been increasingly utilized for the past 30+ years to obtain a pre-trial judgment in one’s favor, as a matter of law, when there is no material issue of fact. Most often filed by defendants, summary judgment motions are also increasingly used by plaintiffs as well.
Although 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), these motions oftentimes involve volumes of evidence being presented to the court in an effort 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, interpretation, and opinion of the facts 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, entitling 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, with Rule 56(e) permitting 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, holding 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 to either show that the movant’s evidence is insufficient to establish all of the elements of their case or by introducing additional evidence that shows the existence of a genuine and material factual dispute.
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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.
Presenting Evidence
Unlike at trial, evidence submitted with a summary judgment motion does not need to be presented in an admissible form. 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 set forth the reasoning of their opinions in their summary judgment declaration.
Different Timelines
It is also important to note the differing timelines between summary judgment and discovery disclosure requirements—the latter is sometimes completed 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, which may result in an expert providing a report or other documentary evidence in support of a motion without officially being designated as a witness.
Expert Designation
However, not yet being designated as a witness does not necessarily protect an expert from being deposed. Some courts have held that experts may still be treated as a witness (opposed to a consultant) and be subject to a deposition, provided that 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 and their opinions may reflect that.
However, some evidentiary requirements do not change. Just like at trial, an expert still must make a showing that they are qualified in their respective area and possess the knowledge, skill, and training necessary to provide opinions on the matter. If an expert fails to sufficiently set forth their qualifications, the court may use its discretion and refuse to consider the expert’s summary judgment declaration.
Reliable Methodology
Likewise, expert declaration must still set forth opinions based on reliable methodology and reasonably supported by fact. Similar to evidentiary rules requiring experts to disclose the facts or data they relied upon, this information must also be included 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.
With the civil court system becoming more and more clogged with lawsuits, the disposal of factually unsupported claims or defenses is important for all parties involved. A qualified expert should be able to assist in overcoming such an early hurdle of litigation and prepared for a summary judgment motion.
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