Summary judgment can be an employer’s best friend. But it can also be a minefield. There are many technical rules to be observed and, like a microcosm of law practice itself, the moving papers are just a shoe waiting to drop. (Have you filed your Appendix of Non-California Authorities? Have you cited to the number or letter of the exhibit, the specific page, and, if applicable, the paragraph or line number?) I urge you to read Nazir v. United Airlines, Inc. (pdf), which, in addition to being entertaining, discusses procedural conundrums not directly addressed by the rules themselves.
For example, contrary to the admonition issued by Weil & Brown in their California Practice Guide, many lawyers insist on including background facts in their Separate Statements. Resist! Include only those facts which are truly material because the Separate Statement effectively concedes the materiality of whatever facts are included. You don’t want a motion denied because the plaintiff’s job title was “Special Administrative Assistant” and not “Administrative Assistant.”
Also, avoid unnecessary objections. In response to a misplaced objection asserting “lacks foundation and hearsay,” the Court had this to say: “No adjective is adequate to describe an objection that one who is called names lacks “foundation” to testify about them. And one does not need to be Wigmore to know that plaintiff was not introducing the names for their truth.” Nice!
However, some habits will die hard. Although the Court observes that “[t]here is no provision in the statute” for a Reply Separate Statement, I still use them and think they can be of assitance to the Court.
Finally, although this opinion is hardly management friendly, there is this sound bite: “[S]ome counsel [are] too often willing to file suit whenever an employee in a protected class suffers some adverse employment decision. Such cases should be disposed of as quickly and efficiently as possible.”