Perhaps you’ve heard the term summary judgment and always wondered about it. If so, read on.

What is Summary Judgment?

Generally speaking, trials in civil cases are about determining facts. The finder of fact, whether it is a jury or a judge (in bench trials), picks whose story they believe more. The judge’s job is to determine what law applies.

What happens if there are few or no facts in dispute? Perhaps everyone agrees that things happened the same way, but they need a court to determine whether a contract is legally valid or binding? This is where summary judgment comes into play. Either side can file a motion for summary judgment with the court, essentially saying that there are no facts in dispute and that the moving party is entitled to a judgment on or dismissal of the claims in the case as a matter of law. If there are minor disputes over facts, the court must view those disputed facts in the light most favorable to the non-moving party. In other words, even if the court believes the other side’s version of what happened, the party filing the motion is still entitled to the summary judgment.

These are somewhat routinely filed in civil cases. They usually cannot be filed until discovery, the process of exchanging information that will be relied upon at trial, is completed. Part of what discovery tries to do is narrow down what facts are in dispute, largely using a set of questions/statements called Requests for Admissions. Depositions and interrogatories also help this process. Motions for summary judgment can ask that all or part of the case be decided.


What happens when a court denies a motion for summary judgment? The case continues on as before. In other words, the motion was of no consequence.

What happens when a court grants a motion for full summary judgment? If a respondent filed the motion, the case is dismissed. If the claimant filed the motion, generally, there is no need for a trial unless damages are in dispute. If the court grants on partial summary judgment, those claims/defenses covered by the summary judgment are excluded from the trial, either dismissed if filed by the respondent or granted if filed by the claimant.

Problems with Summary Judgment

This all sounds great, right? What’s the issue then?

By granting summary judgment, the litigants have lost their day in court. There will be no trial (excepting damages in some cases). The case was essentially presented in a filing on paper and maybe an oral hearing by the lawyers. Witnesses aren’t testifying. Parties also have a constitutional right to a jury trial. Summary judgment decides the case without a trial.

Is summary judgment issued inappropriately or in error? Sure. It is one of the largest reasons for appeals in NJ courts. When this happens, this causes more expense for the parties and lengthens the time to trial or resolution.

Also, win or lose, this costs the parties money. There are filing fees and costs for the attorneys to prepare the filings and responses, and show up at an oral hearing if one is held. A Duke University study showed that summary judgment motions increased costs for plaintiffs by 24% and defendants by 27%. For most cases seen in court, it will probably cost in the mid-teen thousands for summary judgment and the associated discovery.

How Often is Summary Judgment Granted?

In federal court, about 4% of cases are resolved via summary judgment. About half of employment discrimination cases are fully resolved via summary judgment with another quarter of cases partially resolved this way. Personal injury is granted 42% of the time in whole and 15% in part. Contract cases have this granted in about a third of cases in full, and a quarter of cases in part.

A lot of attorneys like to threaten these motions before and in my mediations. This actually helps settlement. Parties do not like having the risk of their case dismissed. Conversely, a denial could imply an endorsement by the judge of a stronger case. Parties settle in large part to avoid the risk of an adverse outcome. In fact, a little more than half of summary judgment motions are resolved by settlement.

Mediation Can be Helpful

Most cases settle. Most parties want to avoid risks. Mediation helps get cases settled. Contact me to find out more about mediation.

(Thanks to the always excellent ADR Times for some of the statistics I used in this article. You can learn far more about Summary Judgment and related statistics in their excellent article.)