1. THE TEN
COMMANDMENTS OF
SUMMARY JUDGMENT
PRACTICE
J. Bradford McCullough
Lerch, Early & Brewer, Chtd.
www.lerchearly.com November 12, 2012

2. Summary judgment is a powerful
weapon
It can end a case in its entirety
It can strip away portions of the case
It can alter the course and contours of the
case
It is a frequently used tool
There are certain fundamental principles
that apply – “Ten Commandments”
2
© Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

3. 1. Have summary judgment in mind
from outset of case and throughout
case.
 The possibility of summary judgment
should be considered at the outset.
 Some types of cases are very well suited
for summary disposition.
 Know the issues that are likely to be the
focus.
 Know the applicable substantive legal
standards.
 Tailor written discovery and depositions
3 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

4. 2. Keep in mind proper timing
of motion for summary judgment.
 Traditionally, most motions are filed after
discovery is complete.
 In some cases, an earlier motion might be
appropriate.
 For example, statute of limitations may
apply.
 Or some other affirmative defense may be
established.
4 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

5. 3. Have a theme and a focus.
 Just as you should have a theme for trial,
you should have a theme for summary
judgment.
 The facts and the law should be
presented in the context of a story or
narrative.
 Give the judge a basis for ruling for you.
 But also make the judge want to rule for
you.
 Avoid the “shotgun” approach.
5 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

6. 4. Know the rules.
 Different jurisdictions have different rules.
 Federal district courts have local rules.
 For example, does the moving party have
to submit a statement of material facts
that are not in dispute?
6 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

7. 5. Know the judge.
 Does the judge have his or her own
“rules?”
 Standing Orders
 Informal preferences
 What has the judge previously said?
7 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

8. 6. Keep it simple.
 As the moving party, avoid the temptation to
look too creative or innovative.
 As the moving party, there is nothing novel
about your case.
 Courts grant summary judgment in “straight
forward” cases, but not in “complicated” ones.
 As the opposing party, your case is complicated.
 As the opposing party, do you need discovery?
8 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

9. 7. Consider partial summary
judgment.
 Fed. R. Civ. P. 56 (a) and Md. Rule 2-501
(a)
 The judge might be more receptive to a
motion for partial summary judgment.
 Remember, be focused – no shotguns.
 “Pigs get fed, hogs get slaughtered.”
9 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

10. 8. Remember the beauty of brevity.
 Less is generally more.
 Judges are busy – get to the point.
 Enough said.
10 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

11. 9. Tone it down: Persuasive is not
the same as argumentative.
 Do not overdo the rhetoric and do not
overplay your hand.
 Avoid personal attacks, invective, and ad
hominem arguments.
 Avoid adjectives and adverbs.
11 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

12. 10. Responding? Consider a
cross-motion for summary judgment.
 Sometimes the appropriate response
includes a cross-motion for summary
judgment.
 Sometimes the best defense is a good
offense.
 Is a formal cross-motion needed? See
Md. Rule 2-501 (f); compare Fed. R. Civ.
P. 56 (a).
12 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

13. Conclusion
 Motions for summary judgment are
powerful weapons that are frequently
used in contemporary civil litigation.
 Careful attention to the applicable rules,
together with knowledge of the
substantive law, provides the foundation
for analyzing the availability of summary
judgment.
13 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

14. Speaker
J. Bradford McCullough is a
commercial and business litigator,
appellate attorney, and chair of Lerch,
Early & Brewer’s appellate practice.
Brad is listed in Best Lawyers in
America and Super Lawyers in the
field of commercial litigation.
(301) 657-0734
jbmccullough@ lerchearly.com
14 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

15. For more information
Lerch, Early & Brewer, Chtd.
3 Bethesda Metro Center, Suite 460
Bethesda, MD 20814
(301) 986-1300
www.lerchearly.com
Thank you for your participation
15 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com