1 CHAPTER 1 7 MOTIONS EDUCATIONAL OBJECTIVES Paralegals should be able to draft routine motions. They should be able to collect, prepare, and organize supporting documents, such as affidavits. They may be able to prepare routine memorandums of law to support motions. Because summary judgments play a significant role in civil litigation, paralegals should understand when they are used, the limits on their use and how summary motions are prepared. They can expect to prepare affidavits and organize supporting documents. They should understand what is meant by material fact. They should understand that affidavits used to support or oppose summary judgment motions must be based upon personal knowledge. Paralegals should appreciate that the matter may not end with the trial or jury verdict. If there was error in the trial, the losing party may make a post-trial motion. There are several kinds of post-trial motions that may be made. LECTURE NOTES Motions A motion is an application to a court for relief or help or guidance. There are many kinds of motions. There is no set form or wording that must be used. If the parties are before the court, they may make oral motions that relate to the appearance. Otherwise, motions must be written, duly served, and scheduled for hearing. Rule 7(b). We strongly recommend that you teach that written motions have four parts. Each part has a separate function. Each part can be stated as a separate paragraph, but numbered paragraphs are not necessary. No rule mandates any particular form for written motions. Unfortunately, few lawyers give much consideration to how a motion should be constructed, so their motions are unclear and unpersuasive. We suggest that you teach your students that written motions should have four parts. The first part should tell the court what assistance and what order the moving party wants. The second part should identify any legal authority that the moving party relies upon, such as one of the Rules of Civil Procedure. The third part should state the grounds for the motion. The grounds are the reasons why the moving party is entitled to the court s assistance and
2 152 LITIGATION AND TRIAL PRACTICE the court s authority to provide that assistance. The fourth part should identify the supporting documents upon which the motion is based, such as records, affidavits, and exhibits. A motion that follows this format reads well, is authoritative, and gives the court what it needs. Usually motions have supporting documents. They must be served with the motion, unless previously served and filed. If filed, they may be incorporated into the motion by reference. The written motion is separate from any supporting memorandums of law. If the opposing party relies upon additional documents to oppose the motion, they must be served and filed no later than one day before the motion is heard (Rule 6(d)). Summar y Judgments Our federal and state constitutions grant litigants the right to trial by jury in civil actions. However, a jury trial is available only when there is a dispute over facts that are material to the parties legal claims and defenses. If there is no dispute about the facts, a judge should decide the controversy as a matter of law. The judge merely determines what law is applicable and then applies that law to the facts. Juries are not equipped to determine issues of law. Historically, that has always been the role of judges. Additionally, there are cases which involve some disputed fact issues, but, nevertheless, one fact which is not in issue may be determinative of the lawsuit. For example, parties may have a dispute about the terms of an alleged contract, but if there was no consideration exchanged for the alleged contract, the claim should be dismissed as a matter of law. Again, in those cases, a judge may decide the controlling issue as a matter of law. The Federal Rules of Civil Procedure recognize that some civil suits are subject to a determination by a judge without a jury. The right to a summary determination of a case is preserved by Rule 56. Depending upon the legal issues involved, the court may grant a judgment which concludes the entire case, or the judge may determine only one or some of the issues and leave the remainder of the case to be tried to a jury. A party whose case is determined by summary judgment has not lost his or her right to a jury trial, because that party never had the right. A motion for summary judgment is quite different from trying a case to a judge where the judge is the fact finder. When the judge is a fact finder, the judge makes specific findings of fact that are based upon the evidence presented in court. In an order for summary judgment, the judge may recite the material facts, but the judge does not make findings. There has always been a role for summary judgments in civil litigation. For many years, courts disfavored summary judgment motions and granted them in only the most obvious cases. Trial courts and appellate courts strained to find issues of fact that precluded summary judgment. However, the United States Supreme Court decision in Celotex Corporation v. Catrett, 106 S.Ct (U.S. 1987) gave new life to the procedure. Justice Renquist wrote: In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any
3 CHAPTER 17 MOTIONS 153 material fact, since a complete failure of proof concerning an essential element of the nonmoving party s case necessarily renders all other facts immaterial. The moving party is entitled to judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. The standard for granting summary judgment mirrors the standard for a directed verdict under Federal Rules of Civil Procedure 50(a).... * * * But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent s claim. On the contrary, Rule 56(c), which refers to the affidavits, if any suggests the absence of such a requirement. * * * One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose. * * * In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file. * * * We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred. * * * Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. A party may move the court for summary judgment only if there is no dispute on the material facts. The facts must be presented to the court in a written form. A motion for summary judgment is usually supported by affidavits and copies of the documents which gave rise to the case, such as an insurance policy or other contract. Evidence offered in support of a summary judgment motion must be in written form and of the type which would be admissible in a trial. In other words, the evidence must meet the requirement of the Rules of Evidence. A motion for summary judgment cannot be made on the basis of oral testimony in court. However, a transcript of testimony from a deposition or former trial may be filed to support a summary
4 154 LITIGATION AND TRIAL PRACTICE judgment motion. A party cannot oppose a motion for summary judgment by simply claiming to the court that there may be evidence which a jury should consider. To win, an opponent must present evidence to show the court there are material fact issues, or prevail on the law. Posttrial Motions Hardly any trial is completely error free. But just because an error occurred does not mean that the losing party is entitled to a reversal or new trial. A party who is disappointed in the outcome of the case must show that the error occurred and that the error was prejudicial. A party may establish a right to a new trial, a reduction in the verdict or an increase in the verdict or judgment notwithstanding the verdict by making a posttrial motion. An error is considered prejudicial if the error may have affected the outcome of the case. There is no way of knowing for sure whether the error was prejudicial. The reviewing court must try to imagine whether a jury reasonably could have come to a different conclusion if the error had not occurred. The losing party might have grounds for obtaining judgment as a matter of law. The most common ground for granting judgment as a matter of law is that the plaintiff failed to prove a prima facie case. In that event, the moving party should have been granted a directed verdict before the case went to the jury. Some judges are reluctant to take cases away from the jury by ordering a directed verdict in favor of one party, so the judges let the jury make its determination knowing that if the jury makes the wrong decision, the judge will have to change the result by granting a motion for judgment notwithstanding the verdict. Sometimes a judge s belief about the applicable law changes after the case has been submitted to the jury. A posttrial motion gives the judge the opportunity to reexamine legal issues and change his or her mind. A posttrial motion for judgment notwithstanding the verdict must be made within ten days after the clerk enters judgment on the verdict. Rule 50. The motion for judgment as a matter of law may be combined with a motion for new trial. A motion for a new trial is made on the grounds that some error occurred during the course of the trial and the error precluded the losing party from having a fair trial. It must be shown that the error was prejudicial or, at least, probably had an adverse effect on the outcome. The moving party does not have to show that the moving party was entitled to prevail. It is enough to show that the error did occur and that had the error not occurred, the verdict could have been different. The kind of error which gives grounds for a new trial may be procedural or substantive. The motion must be served within ten days after judgment is entered. Rule 59(b). A motion for new trial is usually combined with a motion for judgment notwithstanding the verdict. Although infrequently used, a trial judge does have the authority to reduce or increase a verdict to a level in keeping with reason. However, the verdict must be so low or so high as to shock the conscience of the court before such relief is granted. More often than not, an order for a remittitur or additur is combined with an order for new trial which forces the prevailing party to make a choice between accepting the change in the verdict or a new trial.
5 CHAPTER 17 MOTIONS 155 Your own state may have very specific rules for the format of motions. Some courts hear motions only on certain days. Therefore, it would be advantageous to ascertain the specific rules for your own state that relate to motions and summary judgments. Determine what court hears motions in your locality, if a certain day and time are designated for this purpose. In California, for instance, certain superior courts hear motions one day a week only. KEY TERMS Encourage students to use the new terms. Ask students to use a key term in a sentence. Ask students to add these words to their vocabulary. For each key term: (1) consider its meaning; (2) consider its application; (3) distinguish it from similar concepts; (4) check the context in which the terms are used. motion procedural motion dispositive motion memorandum of law notice of motion plain error fundamental error prejudicial error trial de novo judge s minutes additur remittitur cross-motions for summary judgment stipulation of facts ANSWERS TO REVIEW QUESTIONS 1. How soon must a posttrial motion be made? ANSWER: A motion for new trial or judgment as a matter of law must be made within 10 days after entry of the judgment. Rules 50(b), 59(b). 2. What are the criteria for deciding whether the court should order an additur? ANSWER: A court may order an additur if the jury s verdict manifestly awarded too little compensation. 3. What role may a paralegal have in handling a posttrial motion? ANSWER: A paralegal may collect and organize the information and exhibits, order the court reporter s transcript, outline the evidence in dispute, locate other office memorandums that have dealt with the issues in other cases. Some paralegals do legal research. 4. What is meant by plain error, and how does it differ from other error? ANSWER: A court will grant a new trial for plain error even though the party did not make a timely objection to the evidence. Plain error is manifest error that is fundamental to the case; it goes to the very nature of the
6 156 LITIGATION AND TRIAL PRACTICE proceedings; plain error prevents a party from having a fair trial. In effect, the plain error exception is a safety valve in the legal system. 5. In the absence of plain error, what two circumstances must be established to justify an order for a new trial? ANSWER: The lawyer must have made a timely objection to the evidence and it must appear to the court that the evidence was prejudicial to the complaining party. 6. What four parts should every motion contain? ANSWER: A motion should (1) state the purpose of the motion by identifying the relief that the moving party wants; (2) identify the rule or statute that authorizes the motion; (3) state the grounds for the motion; and (4) identify the documents that the moving party relies upon to show the grounds. 7. What are the criteria for granting a motion for judgment as a matter of law? ANSWER: A court may order judgment as a matter of law if the party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a jury to find for that party on the issue. Rule 50(a)(1). 8. When does a party move for amended findings rather than a new trial? ANSWER: A motion for amended findings is made only when a judge is the fact finder or the jury returns a special verdict which requires the judge to make findings based upon the jury s special verdict answers. Where there is no dispute over what the evidence is and the only disagreement concerns the proper conclusions to be drawn from the evidence, there is no need for a new trial. 9. Who decides whether an error was prejudicial to the moving party? ANSWER: The judge must decide whether the claimed error was prejudicial. 10. What are the potential benefits to a party who makes a motion for summary judgment? ANSWER: A party who successfully moves for summary judgment wins the case or wins on that part of the case, an issue, on which summary judgment was granted. A summary judgment is a determination of the matter on the merits. 11. In what form must the evidence be presented to support a motion for summary judgment? ANSWER: A summary judgment must be supported by evidence in documentary form, and the evidence must be of a type that would be received at trial. 12. At what point in a civil action may a defendant make a motion for summary judgment? ANSWER: A motion for summary judgment may be made anytime before the trial begins. However, a scheduling order may limit the time period during which a summary judgment may be made. 13. When is a disputed fact considered material so as to preclude a summary judgment? ANSWER: A disputed fact is material if it could affect the outcome of the case.
7 CHAPTER 17 MOTIONS Could a moving party use an opposing party s signed, unsworn statement to establish a fact to support a motion for summary judgment? If so, how? ANSWER: The moving party could use a request for admissions to force the opposing party to admit that the statement is genuine and to admit the truth of the contents of the statement. The moving party may be able to supply an affidavit that the statement is that of an opposing party and, on that basis, should be received into evidence as the admission of a party. 15. May a party move the court to order a partial summary judgment? ANSWER: Yes. A summary judgment does not have to resolve the entire case. 16. May a party use admissions in pleadings to support a motion for summary judgment? ANSWER: Yes. The moving party may rely upon admissions made in the opposing party s pleading to support a motion for summary judgment. However, a party may not use his or her own pleading as the basis to obtain or avoid a summary judgment motion. 17. May a party use her or his own answers to interrogatories to oppose a motion for summary judgment? ANSWER: Maybe. Answers to interrogatories are made under an oath, the same as an affidavit. If the answers to interrogatories are made upon personal knowledge and otherwise conform to the rules of evidence, the answers should be competent to support a motion for summary judgment. Rule 56(c) contemplates that answers to interrogatories may be used to support or oppose motions for summary judgment. But as a general rule, a party may not put into evidence, at trial, that party s own answers to interrogatories. They are merely self-serving. 18. May a party use the opponent s responses to requests for admissions to support a motion for summary judgment? ANSWER: Yes. This is one of the prime reasons for using requests for admissions. 19. May a court grant summary judgment against the moving party? ANSWER: Yes. QUESTIONS FOR DISCUSSION AND ANSWERS 1. Explain why summary judgment motions do not deprive parties of their right to a jury trial. ANSWER: The purpose of the jury is to determine fact issues. A jury does not decide what law to apply and does not decide how to apply the law. The judge instructs the jury concerning these matters usually at the end of a trial. If the material facts are not disputed, the judge may apply the law to those facts. 2. May a party move for summary judgment on only one or two of several issues in a case? ANSWER: Yes. A party may move for partial summary judgment which is a resolution of less than all of the issues in the case.
8 158 LITIGATION AND TRIAL PRACTICE 3. In what form must the evidence be presented when making a motion for summary judgment? ANSWER: The evidence must be in a written form and may be supported by exhibits consisting of documents and things. A judge may not hear oral testimony from witnesses. The judge s determination must be based upon the documentation and arguments of counsel. 4. What types of documents may the court consider in determining a motion for summary judgment? ANSWER: A court may consider pleadings, interrogatory answers, responses to requests for admissions, deposition testimony, and sworn affidavits of parties and witnesses; if properly identified, a court may consider exhibits referred to in depositions and affidavits. 5. What is the judicial standard for determining whether a motion for summary judgment should be granted? ANSWER: A Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law. Federal Rules of Civil Procedure, Rule What must be filed with a motion for summary judgment? ANSWER: All the evidentiary documents which the moving party relies upon to support the motion for summary judgment must be served and filed with the motion. It is not sufficient to merely incorporate the documents by reference. 7. How much notice must be given to the opposing parties when filing a motion for summary judgment? ANSWER: Ten days. Most motions require only five days notice. See Rule 6(d). Since a summary judgment motion is tantamount to a trial and is potentially a dispositive motion, Rule 56 provides that at least 10 days notice must be given. Of course, if the motion is served by mail, three days must be added. 8. What is a material fact? ANSWER: A fact is material if it is one that will establish or tend to establish a claim or defense. A material fact is one which is necessary to the theory of the claim or theory of the defense. 9. If one party moves the court for summary judgment, may the court grant summary judgment in favor of the opposing party? ANSWER: Yes. A court may, sua sponte, grant summary judgment in favor of the nonmoving party. This is true notwithstanding the language of Rule 56 (c). 10. If a party is currently unable to obtain affidavits, which are for the purpose of resisting a motion for summary judgment, what steps may that party take to avoid a summary judgment?
9 CHAPTER 17 MOTIONS 159 ANSWER: The defending party may file his or her own affidavit stating the reasons why such affidavits are not available. The court has discretion to determine whether the reasons given are sufficient to warrant a delay in the proceedings. 11. What must the losing party show to obtain a new trial? ANSWER: The losing party must show that there was an error which may have prejudiced the outcome of the case. 12. Is the losing party entitled to a new trial if the jury instructions contain a misstatement of the law? ANSWER: Not necessarily. It depends upon how the error occurred, whether the error involved fundamental law, whether the error was prejudicial, and whether the error was preserved by the losing party. For example, if the error was the result of jury instructions proposed by the losing party, the losing party cannot take advantage of it by obtaining a new trial. A party may waive the right to complain of an error by failing to note the error when it occurs. See Rule Describe activities by jurors which may constitute misconduct which would entitle the losing party to a new trial. ANSWER: Jury misconduct which might require a new trial includes investigation outside of the courtroom, communicating with a party or lawyer during the pendency of the trial, or giving false testimony during the voir dire examination. 14. What is the purpose of a motion for an additur? ANSWER: The moving party requests the court to add an additional sum of money to the jury s award because the award is clearly insufficient. An order for an additur is usually made on condition that if the additur is not accepted by the prevailing party, a new trial will be ordered. The new trial may be limited to the issue of damages. 15. What is the purpose of a motion for a remittitur? ANSWER: The moving party requests the court to reduce the amount of the jury s award because the award is clearly excessive. An order for a remittitur is usually granted on condition that if the remittitur is not accepted by the plaintiff, the defendant will be granted a new trial. The judge hopes to select an amount which is not only appropriate, but acceptable to all parties. 16. When is the discovery of new evidence grounds for obtaining a new trial? ANSWER: There is a two-part test for determining whether a judge will grant a new trial because a party has newly discovered evidence. First, the new evidence must be significant so that it could change the outcome of the case. Second, the judge must be convinced that the new evidence could not have been discovered through the exercise of due diligence before the trial was completed. This is not an easy means of obtaining a new trial.
10 160 LITIGATION AND TRIAL PRACTICE USING THE HYPOTHETICAL CASE Agent Burns decided to move the court for summary judgment on the grounds that he did not breach any legal duty owed to Griffin and Burns s alleged negligence for canceling coverage was not the cause of Griffin s failure to have insurance on the pickup truck for Harper. Burns supported his motion with a genuine copy of the sales agreement drafted by Griffin and accepted by Harper. His motion is: NOTICE OF MOTION PLEASE TAKE NOTICE that on the 5th day of December 1994, at 9:00 a.m., or as soon thereafter as counsel may be heard, defendant Frederick Burns, through his undersigned attorneys, will make the following motion before the Honorable James D. Smith, one of the Judges in the above-named Court, at the Hubbard County Courthouse, 1204 South 5th Street, Benson, Minnesota. MOTION Defendant Frederick Burns moves the Court for an Order granting summary judgment dismissing John Griffin s fourth-party action against him pursuant to Minnesota Rules of Civil Procedure 56. The grounds for the motion are: 1. There is no genuine issue as to any material fact which would preclude the Court from ordering summary judgment in favor of defendant Frederick Burns. 2. The court has determined as a matter of law ownership of the 1982 GMC pickup truck transferred from John Griffin to Bradley Harper before the motor vehicle accident in question. 3. Griffin s liability to Harper, if any, was created by contract, not tort. 4. As a matter of law, agent Burns had no duty to Griffin to inquire if he had undertaken an extraordinary contractual obligation to keep insurance on a vehicle he did not own. 5. Burns did not cause Griffin s failure to provide insurance coverage on the pickup truck to Harper. This motion is made upon the parties pleadings, the transcriptions of the depositions of Bradley Harper, John Griffin, Frederick Burns, the parties Answers to Interrogatories; the parties Responses to Requests for Production of Documents; the business records of Frederick Burns; and all the files, records, and proceedings herein. Dated: November 1, 1994 Attorneys for Defendant Burns The parties duly appeared for an oral argument. The court considered the arguments and written memorandums and issued an order.
11 CHAPTER 17 MOTIONS 161 MEMORANDUM As the Security Insurance policy provided that no change of interest in the policy was effective without written consent, Griffin could not assign any interest in the policy to Harper. This policy did not attach to or run with the insured property; it terminated upon the property s sale. Burns s cancellation of the policy was not the reason Griffin did not have insurance on the pickup pursuant to his contractual agreement with Harper. The Court is aware of the claim that if Burns would have notified Gustavson of the transfer of coverage, Griffin may have taken necessary steps to provide Harper with insurance coverage on the vehicle. This was the basis for the Court s earlier ruling, indicating that there were questions of fact. However, upon further review, even assuming that to be true, it does not create a duty on the part of Burns to inquire of Griffin about the insurance policy. The legal duty for an insurance agent is to exercise the skill and care which a reasonably prudent person engaged in the insurance business would use under similar circumstances. Gabrielson v. Warnemunde, 443 N.W.2d 540, 543 (Minn. 1989). Once the policy has been issued, the insurance agent has only a limited duty to update the insurance policy. The insured bears the responsibility of informing the agent of changed circumstances which might affect the coverage of the insurance policy. In this case, the agency was informed that the vehicle had been sold; there was nothing more for the agent to do. There are some similarities to the case of Tollefson v. American Ins. Co., 302 Minn. 1, 226 N.W.2d 280 (1974); that case held that an agent s assumptions, not based upon any misrepresentation or notice to the contrary, created no duty to inquire. There are no facts at issue in this case as to any duty of the agent. The recent case of Singh v. State Farm Mut. Auto. Ins. Co., reported in the November 4, 1994, issue of Finance and Commerce on page 19, caused the Court to review its previous ruling of October 19, 1993, determining that title to the automobile passed as a matter of law. The difference between the Singh case and this case is that in the Singh case the court had to rely on the testimony of interested witnesses, who had previously supplied contradictory information. There were conflicting statements as to whom the owner of the car was. In this case, there are no facts in issue; both parties agree that the formal title certificate was mislaid and not found until after the accident, more than six months later. In this case, it is uncontroverted that the full purchase price had been paid, the pickup had been delivered, the only keys for the vehicle were held by the buyer, he had installed hand controls at a cost of $300 to $400, the previous owner did not retain any right to control the buyer s use of the pickup, and the buyer took care of all maintenance during that time period. Thus, the Singh v. State Farm Mut. Ins. case does not give any basis to reconsider the previous ruling. A settlement was entered into between most of the parties; the settlement was filed with the Court. An assignment also was filed. The settlement and the assignment decided all damage issues between Griffin, Harper, and the Trustee, and provided that Harper s and Griffin s personal liabilities would be limited to insurance coverage.
12 162 LITIGATION AND TRIAL PRACTICE The issues of the retained limit on the umbrella policy are moot; the issue of attorney s fees does not appear relevant at this time. The Court has reviewed three voluminous files, several of more than one volume, and believes that this order has referred to all matters outstanding. If there are motions which the Court has not ruled upon, such motions are denied. The case was correctly decided! EXTRA ACTIVITIES 1. Call the Law and Motion Department of your local court to arrange a field trip for the students to hear oral arguments on motions. 2. Invite a court clerk from the Law and Motion Department of your local court to speak to the class about their procedures for filing and hearing motions as well as the local court rules. 3. Invite a paralegal who works in litigation to speak to your class about the preparation of motions and the local court rules. 4. Assign the students the responsibility to ascertain the rules for the filing of motions in the local court as well as the proper procedures to follow in their preparation. This material should be filed in their Notebooks after grading. USEFUL WEB SITES Download Motions forms (for a fee) cgi-bin/forms/