Example 14.3

Takeaway point 14.3: Summary judgment motions should frontload key undisputed facts.

The next example illustrates how to move for summary judgment. This passage appeared in a pregnancy discrimination case in which a female IBM employee claimed that, because she had become a mother, her supervisor withheld a scheduled $179,000 bonus to push her out of the company.

Source: Reply to Plaintiff’s Opposition to Motion for Summary Judgment, Gilmour v. IBM, No. 2:09cv04155 SJO, 2010 WL 1340599 (C.D. Cal. Feb. 11, 2010).

The plaintiff violated an implicit rule of Chapter 1: show that your adversary is a villain, but do not use that pejorative label or else it might be thrown back at you and make you look unreasonable.

Once again, we see evidence that trial motions are snarkier than appellate briefs. The word “regrettable” would have sufficed, but IBM’s lawyers return that fire with the plaintiff’s lawyers by calling them “unprofessional.” I discourage this approach, but I don’t want new lawyers to be blindsided by the tone that sometimes prevails in modern lawsuits. And as shown in the next annotation, this approach may be strategic.

WARNING! When lawyers allege unethical conduct by an adversary, they should substantiate that allegation. This language — “grossly mischaracterizes” — again reflects how feisty name calling gets in trial courts.

· signaling competence and hyper-diligence;

· coloring the judge’s view of the adversary, even if judges don’t think that they’re being influenced;

· signaling to your adversary that your client does not want to settle; and

· diverting an adversary from landing its punches by luring it into a name-calling contest.

When deciding how to reply to a nasty comment, assess whether a spat between litigators will help your client. If you’re representing a plaintiff and have the burden of proof, the answer is usually “no” because your task becomes more difficult when the judge is distracted by irrelevant skirmishes. By contrast, defendants tend to benefit if they can lure plaintiffs into a squabble about minutiae and the lawyers’ behavior. As noted in the first annotation following Example 5.6, some judges report that these spats frustrate them and cause them to stop paying attention to the underlying arguments. That’s the point.

Using bullets is an especially effective strategy for the first pages of a summary judgment motion, opposition, or reply. Summary judgment motions often turn on a handful of critical facts, so highlighting them early and prominently maximizes the chance that a judge will focus on the all-important facts that justify (or preclude) summary judgment. Emphasize that those facts are undisputed because summary judgment is unavailable if material facts are contested.

Notice that the defendant has stripped any actor from this sentence. In general, sentences should identify the actor and avoid passive verbs. Here, however, the dismal verb “was to be paid” reflects lousy writing but good strategy: it avoids saying something harmful such as “the bonus that IBM promised....” Write well, unless there is a reason not to.