In last week's Freedom Friday blog and email newsletter, I introduced the discovery process, and explained why its important to gather relevant documents if your small business gets sued.  In this week's Freedom Friday blog and email newsletter, I want to present a second reason why it's important to gather documents if your business gets sued, and that's because of something that may happen after you go through the discovery process.  I mentioned this topic briefly in last week's blog and email newsletter, but I want to explain it further in today's Freedom Friday blog and email newsletter, and that is either you will want to file a motion for summary judgment in an effort to get the lawsuit dismissed, or the party that filed the lawsuit against your small business will file a motion for summary judgment in an effort to avoid a full trial.  So, in today's Freedom Friday blog and email newsletter, I'm answering the question, “What is a motion for summary judgment?”

First of all, a motion for summary judgment is a “dispositive” motion.  In a sense, if a party moves for summary judgment, the moving party is telling the judge that there are no disputes as to the material facts of a case and a trial is not necessary because if the judge examines all the evidence presented, as a matter of law, the moving party is entitled to judgment, either a dismissal of the case, or if they filed the lawsuit, judgment in their favor for whatever relief was requested in the lawsuit that they filed.  For example, if a plaintiff sues your business to collect $10,000.00 on a breach of promissory note, if they prevail on their motion, then they have persuaded the judge that there is no dispute as to the material facts, they have presented the evidence to prove their case, and the judge has granted them a judgment for the relief requested in the lawsuit, all without a full trial, because the motion has disposed of the case.  That's why it's called a “dispositive” motion.

So, what is required in a motion for summary judgment?  The moving party has to prepare a brief which supports the motion, and the brief must contain a statement of undisputed facts.  In addition, the moving party must present evidence which supports the statement of undisputed facts.  For example, if it's a breach of contract case, you have to attach to the motion as an exhibit the contract being sued over.  That's usually not enough, and typically the moving party will also attach an affidavit in support of the motion which is often a summary or preview of the party's testimony.  If there are other relevant documents that prove the case of the moving party, those documents will also be attached as exhibits.  The judge will review the evidence presented, and if the judge agrees that there is no dispute as to any material facts, and that the moving party is entitled to dismissal or judgment as a matter of law, the judge will grant the motion for summary judgment and the case will be over, or at least that claim will be disposed of if there are multiple causes of action or claims in the lawsuit.

What does the other party have to do in order to respond and defeat the motion for summary judgment?  The responding party has a limited amount of time to respond to the motion, and they must produce evidence to place the material facts in dispute.  If the judge finds that any of the material facts are in legitimate dispute between the parties, the judge will likely deny the motion for summary judgment, and the case will continue.  At minimum, the responding party will usually respond to the motion for summary judgment with an affidavit of their testimony, but they usually offer further evidence beyond the affidavit, and the responding party must attempt to dispute as many material facts as they can.  The responding party also has an opportunity to persuade the judge that the moving party's interpretation of the law is not correct and that the judge should interpret the relevant statutes and case law differently.

If your small business is having issues with contracts, leases, business partners, collection issues, or experiencing other barriers to growth, please contact me at [email protected] to schedule a FREE strategy session.

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