any law students or lawyers here please????

My first two weeks in school and
ARRRRRRRRRRRGGGGGGGGGGGHHHHHHHHHHHHHh. I have to analyze a case in which the other party is starting a motion for a summary judgement. I have to prove that they will lose if they do. So i just want to make sure that i understand summary judgement. Both sides agree to the facts but if i can find there are grounds under the law for a jury trial of if there is a reasonable doubt which only a jury can resolve, then i can in fact stop the motion. Is that correct???
Thanks

as a matter of law. That's the standard.

but am i to understand that if there are no material disputes then the motivant is automatically granted summary judgement?

are in law school. No, as other posters have gone to more effort to explain, under those undisputed facts the moving party must be entitled to judgment as a matter of law. A simple example would be a mortgage foreclosure, no factual issues, the note and mortgage were properly executed and recorded and the borrower is in default under their terms. The mortagee is entitled to a judgment of foreclosure as a matter of law.

http://laws.lp.findlaw.com/1st/052224.html

We review a district court's summary judgment ruling de novo, taking the facts in the light most favorable to the nonmoving party and likewise drawing all reasonable inferences in that party’s favor. McConkie v. Nichols, 446 F.3d 258, 260 (1st Cir. 2006); Merchants Ins. Co. of NH v. U.S. Fidelity and Guaranty Co., 143 F.3d 5, 7 (1st Cir. 1998). Summary judgment is appropriate if the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. McConkie, 446 F.3d at 260; Fed. R. Civ. P. 56(c).

of the word "judgment". You never put an "e" after the "g" if you want to have any credibility with your teachers or other lawyers.

Or, in California, under CCP 437c, there has to be "no issue of material fact" for the finder of fact to determine. One interesting angle on this analysis: Under California case law, summary judgment is a disfavored remedy. The judge hearing the motion has an affirmative duty to "issue spot," i.e., find issues and identify them, even if the issue is not raised in the opposition papers. Under Federal Rule of Civil Procedure 56, summary judgment is a favored remedy, and if the issues are not identified in the moving papers, the court won't consider them.

Generally, if there are any FACTUAL issues requiring a finder of fact to resolve them (including "reasonableness" in all its many iterations in law), summary judgment will most always be denied.

Hope that helps.

You may have a misconception. If there is ANY issue of fact unresolved, summary judgment is improper and will most likely be denied. There is no reason "at law" for a summary judgment to be granted. There has to be no dispute about the FACTS.

There must be no genuine issues of material fact, and under those undisputed facts, the moving party would be entitled to judgment in his/her favor as a matter of law. So to defeat the motion, the nonmoving party has to show that there are genuine issues of material fact; in other words, an issue that should be resolved by a jury. If both sides agree to the facts, however, then all you have to prove is that under those facts, the moving party can't win under the legal rules that apply to those facts. The burden of proving facts (which in any event would be by a preponderance of the evidence, not beyond reasonable doubt, which applies only in criminal cases) doesn't matter if the parties have agreed to the facts. Only the law matters.

Does that help?

My son just started law school but he started in August...

i began mid august but it was mostly meetings conferences and the like

Well, maybe in opposing counsel's universe there are no facts in dispute. But perhaps, my client lives in an alternate univers where giant lizards still roam the Earth, and certain facts are still in dispute.

Edited to add

Be sure to cite specific episodes of Star Trek, Stargate, and Doctor Who in your brief.

We're focusing on mutual mistake. I like giant lizards better.

Edited -- I looked in my Bluebook, and there is no citation style listed for Dr. Who. Can I just cite:

Doctor# Dr. Who Episode# (Year), or do you suggest another version?

If it's not on your hard drive, that's not my fault.

Schrodinger's Cat ate my homework excuse... Patent Pending Iandb1 1987

Other posters have already explained it, so I won't, but I will sympathize.

there must be NO undisputed issue of material fact. In the real world, judges almost never grant summary judgment (otherwise why would there be a lawsuit?). What you need to do is point out disputed issues and argue them for your side.

It sounds like you've got the basic idea, though. Don't worry - law school is a bitch (especially for 1Ls). If you ever need moral support, feel free to PM me. :hi: - LB

Law school is BEYOND a bitch. More like a Muther-Effing Sumbitch. A horrible three years of suffering.

The payoff: You will think straight, write straight and speak straight. And people will ask you about their divorces and car accidents.

I HATED law school. I LOVE practicing law.

Does this mean I'll hate practicing? :D

I practiced law for about 17 years and eventually burned out, got into a totally different career. Actually, I enjoyed law school, enjoyed appellate practice and even trials sometimes, but the clients drove me nuts.

but practicing law and law school are two very different beasties. You might consider clerking for a state appellate court or any federal court - its the closest thing around to being in law school and you get paid for it (state lower level courts tend to be pretty crazed). Some of the positions are even permanent.

Is it yours?

Judges shouldn't be granting very many of them, but at least in our neck of the world, judges grant them far too often - giving appellate judicial clerks their limited practice drafting reversals (since not much else gets reversed).

Slight exaggeration, but not much.

To the OP - enjoy if you can (there are a few warped souls out there that actually enjoy law school, including 1L :) )

You say they are making a motion for summary judgment and you have to show they are going to lose. If both sides agree on the same set of facts, and those facts do not conflict, you cannot create a question of fact. You have to win on the law. It's your first year of law school - it sounds like you are being tested to see if you can apply the law to the facts, which makes sense. They want to test if you can make a legal argument. That's how you start to be a lawyer.

So I would concentrate on applying the law to the facts so that you win.

It's pretty hard to say more without knowing more about the problem.

:)

If you dontmind my asking again - its a case about someone getting drunk then falling off a deck. When the ambulance came the drunkard lashed out and hit the emt breaking his nose. They want to sue because the tavern served him liquor while already drunk. no one disputes the series of events, but if i can manage to prove under the liqour laws of the state that the tavern was at fault for doing that then it can be deferred to a jury?

(Law school has made me completely distrust pronouns, sorry. :-))

Looking at your fact pattern, without giving you an answer...remember that negligence in violation of a statute (negligence per se) does not automatically mean the lawbreaker loses the case. Think of your other elements, and whether a jury might have a question there.

stand. SJ is for when all agree on all the facts, and there is only a question of law. If there is any fact left for the jury to decide, SJ cannot be appropriate.

so in other words if there is even the slightest variation or difference in the depositions then those are grounds to reject summary judgement? I do appreciate your help

that will show up in the language in the case law about when summary judgment is to be made.

and practiced in such a manner that the common man must pay for a lawyer to interpret the law? I understand that the law is now complicated, there are cases upon cases to study, look for, and decipher. There are different types of cases. There are different types of lawyers and different judges. How much money is tied up in the whole legal system? How much time is spent on proceedings, enforcements, etc. I am fascinated by some of the absurdity of many rulings. I am also completely appalled that people don't understand the power that a jury has in a case. It is amazing to me.

It's not a perfect system, but it's mostly a damn good one.

latin is so loved by university people...as a scientist I found it so much fun learning the common language and then the latin for the same damn thing(sarcasm intended).. but Latin is universal, everyone worldwide will understand it. So for science its practical... Law on the other hand is for Americans. (I suppose we will need a spanish version too for all practical applications and really anyone can babelfish these days)

#2.. At about the age you learn to say the pledge of allegience and sing the national anthem, you should be learning the constitution and all practical elements that apply to the law.

#3.. Filing documents and briefs and motions are tedious. One easy to fill out format with your cost fee if you please (they made it simple enough to fill out a W4 to take money from your pay check, I think we can come up with a simplified form to fill out.


Now, if I was charged with murder or was under the gun, I would want a lawyer and all the perks with helping my defense. But it would be nice to get some practical stuff out of the way and not have to hire a $300.00 + hr attorney who charges you for every second (even the one where you are signing the check).

my own divorce. I realized (A) I could *do* this stuff, and (B) I actually liked doing that stuff (well, not the my-divorce part, but the legal part was kind of neat).

Just like any other specialized field, the law is complicated. You wouldn't expect to just wade into advanced chemical engineering and understand everything.

Writing the law to be interpreted by the common man would by definition be badlaw, because the common vernacular is imprecise.

I've never had any trouble with the complexity of the law -- once I realized all the things it deals with. The world (particularly the world of business) is quite complicated. For example: Joe wants to form a corporation so he can buy a pool of mortgages as an investment. Doctrines of corporate formation, limited liabiilty, corporate fiduciary duties, and disclosures are all important. There are Latin names for all those things, and more. If Joe's pool of mortgages does not perform -- i.e., the people don't pay -- there are issues of secured transactions, equitable redemption, etc. If Joe borrows money to keep his company alive, there are issues of bonded indebtedness and equitable subordination. If Joe gets sued, there are issues of piercing the corporate veil, etc.

In short, the business world is complex. The law set the rules. People who want to do complex business transactions want to use those rules. The law has developed over 1,000 years since its beginning in Merry Olde England. The Legislatures and Congress are changing it all the time.

Ask a CEO of a corporate business if he/she wants to dispense with the equitable principle of limited personal liability for corporate debts. He/she will laugh in your face.

And this is one example, from a lawyer who does not do any corporate work. Other areas of law could be used to show how fiendishly complex the law is -- because the issues of human beings are fiendishly complicated.

Thus: law is complicated because the world is complicated.

like wars and unfair practices with a winner take all mentality.

X files Complaint
Y files response
they do discovery
Y files a motion for summary judgment.

The court when ruling on a motion judgment must rule for X, unless Y can show that there is no possible way that X can recover under the facts that are undisputed or so clearly established by the evidence that a jury could not reasonably find otherwise, or that X has failed to adduce some evidence upon which a reasonable jury could rely on a necessary element of his claim. But the Court may only so hold on the last ground if X has had a reasonable time for discovery.

The court may only take cognizance of te complaint and the evidence attached to the motion for summary judgment, which can be anything, depositions, documents, admissions, etc.

When the opposing party files for summary judgment, the court must consider the evidence from discovery, affidavits, and every reasonable inference from those facts, can the plaintiff recover? Basically, it's saying, "Even if all of their facts are true, I still win."

I'm only a 1L, so I could be completely wrong on this.

I was involved in a case where the facts were not in really in dispute but the other side kept filing stacks of documents to try to raise a fact issue. The Court eventually held that where the facts are not in dispute, then breach of contract is a question of law. The record on appeal got to be silly with 56 volumes and the same data processing contract filed by the other side a total of 9 times even though it had nothing to do with the issues in the case.

Have fun