Florida has recently updated its summary judgment standard to closely parallel the standard applied in Federal courts. Under the new standard, summary judgment should be granted if no reasonable jury could return a verdict for the non-moving party under the evidence. This is an easier burden to meet than under the old standard, which prevented summary judgment if the evidence raised the “slightest doubt” about the non-moving party’s ability to prevail.
As a result, Florida’s trial court judges have become inundated with summary judgment motions. Therefore, it is important to make their job easier by writing clear and concise motions for summary judgment. Here are five tips for improving a summary judgment motion:
1. Don’t recite the summary judgment standard
Many lawyers spend several pages describing the summary judgment standard at length. This wastes time, because any judge assigned to a civil division is already very familiar with the summary judgment standard. The judge reading your motion will likely skip over any recitation of the summary judgment standard.
2. Focus on the elements of the claim or defense
Under the new rule, the focus is on whether a reasonable jury could return a verdict for the non-moving party. Thus, a motion for summary judgment should be clear when setting forth the elements required to prove each claim or defense, as well as the facts that correspond to each element.
3. Make pin citations to the record
The judge evaluating your motion for summary judgment will be independently verifying that the evidence supports the motion for summary judgment. Thus, you should cite with specificity every item of evidence being relied on in the motion. If citing a deposition, cite the page number. If citing discovery questions, cite the specific question.
4. Format the motion to be read on a screen
Almost all judges will be reading your motion on a computer screen, tablet, or smartphone. Thus, you should format your motion for easy reading on a screen. Use short paragraphs, with only a few sentences. Avoid having paragraphs that start at the bottom of one page, but dangle the concluding sentence on a following page. Use lists and bullet points. Avoid footnotes whenever possible.
5. Don’t file the motion too early
It may be tempting to move for summary judgment early in the proceedings to put pressure on the opposing side. Be careful. The new summary judgment standard requires a reasonable opportunity for the conduct of discovery. Thus, a summary judgment motion will likely be continued if key witnesses still need to be deposed, or important documents need to be produced.