Defeating Motions for Summary Judgment: The Reply Brief

Below is a list of suggestions for drafting your Motion for Summary Judgement Reply Brief. It was written by James Allen, Retired Assistant County Attorney of Miami Dade County, and James Robinson of White & Case LLP who have both taught at several of our prior programs!

Remember – standards and burdens of proof.

  • The non-moving party is required to designate facts which demonstrate a genuine issue for trial and must avoid conclusory allegations unsupported by factual material.
  • The non-moving party need only prove a material factual dispute.
  • All reasonable inferences must be drawn in favor of the non-moving party.

Structure of brief.

  • Introduction – what is your theme?
  • Factual background
  • Argument
  • Sections (and section headings)
  • Conclusion

What are common defenses/themes when opposing motions for summary judgment?

  • Attack the facts.
  • Attack the law.
  • DO NOT focus an inordinate amount of space (or case citations) on the standard of proof or that reasonable inferences are drawn in your favor.

Strategies for contesting/disputing facts.

  • Choose your battles – do not contest EVERYTHING! This is a matter of credibility.
  • You must be specific in contesting/disputing facts – cite to specific language (with page numbers) and testimony. Include quotes. Emphasize important pieces of evidence.
  • If there are no disputed material facts on any issue and you agree that the issue is a matter of law, consider filing a cross-motion and a stipulated set of facts.

Addressing legal arguments made by moving party.

  • Don’t be bound to the organizational structure of the moving party. Example: If they have hidden a glaring weakness in the middle or end of their brief, bring that issue to the forefront in your opposition.
  • But don’t ignore the motion altogether – a good response brief must “respond” to the moving papers.
  • Address all arguments – failure to address can be viewed as a concession.
  • Distinguish all cases cited in the motion.   Where there are many cases, distinguish the cases in large groups.
  • Don’t submit boilerplate objections—tailor your arguments to your facts.

Using legal authority (applies also to motions).

  • The preferred priority of cases in support of our arguments:
    • First priority –cases in which trial court did what our opponent is requesting, and the appellate court reverses.
    • Second priority (OK, but not as good) – cases in which the trial court did what we request, and the appellate court affirms.
    • Third priority (not good; but we are a bit desperate) – only if none of the first two categories are available, cases in which the court cites a correct legal principle, but the court rules against our position.

A word about reply briefs.

  • Structure:
    • We demonstrate/established X.
    • They did not controvert/challenge/dispute, but only argued Y.
    • This is incorrect because …
    • Their cases do not change the result (and distinguish).
  • As a general rule, DO NOT cite the same cases from your motion – a reply brief should “reply” to the response
Katie

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