Written by attorney Daniel Robert Schramm

Tips on Drafting a Motion for Summary Judgment

I am a solo practice attorney who concentrates, among other things, in helping other lawyers to write trial and appellate briefs. I also teach law students how to write briefs as an adjunct faculty member for the moot court program at Saint Louis University School of Law. This guide is designed to help any Missouri lawyer contemplating a motion for summary judgment.

Familiarize Yourself with the Summary Judgment Rule: Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. When you draft a motion for summary judgment, you must comply with Missouri Supreme Court Rule 74.04. The seminal Missouri case for interpreting the rule is ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). ITT Commercial Finance provides a blueprint for identifying the potential grounds for summary judgment and allocating the burdens for the claimant and defending party in deciding the motion.

Drafting the Motion: The motion for summary judgment itself “shall summarily state the basis for the motion." [1] In drafting the motion, you want to declare in a summary fashion that there is no genuine factual dispute on those elements or defenses that constitute a proper basis for granting summary judgment under ITT Commercial Finance. This helps to frame the issues for the trial judge. You should reserve a more detailed argument for the legal memorandum.

Drafting the Statement of Uncontroverted Material Facts: Under Rule 74.04(c)(1), you must present, in separately numbered paragraphs “each material fact as to which movant claims there is no genuine issue…." And each paragraph must contain specific references to pleadings, discovery, exhibits or affidavits to support the facts contained in the paragraph.

Judge Julian Bush admonishes lawyers, first, to confine their statement of uncontroverted facts to ultimate facts tied to the elements of a claim or defense, and second, to avoid getting bogged down in too much evidentiary detail. [2] This is excellent advice. The trial judge is likely to be turned off by dozens of purported facts that are not truly necessary to decide the motion. From a practical perspective, if you contend that too many facts are material, you give an opening for the opposing party to raise genuine disputes. For a majority of motions, less is more.

Drafting the Legal Memorandum: The third document required by Rule 74.04 is the “separate legal memorandum explaining why summary judgment should be granted." [3] Here is where you want to apply techniques for crafting a persuasive written argument.

A. Grab the Judge’s Attention with a Strong Introduction: You should not force the trial judge to sift through your written argument to figure out your main points. Instead, you want to grab the judge’s attention as soon a possible with a strong introduction. Here is where you want give the judge a roadmap for the main theme of your argument.

B. Structure Your Argument to Answer the Judge’s Questions: I encourage you to use Ross Guberman’s approach to structuring the argument of your memorandum. Under the Guberman approach, you match your structure to the judge’s questions, not your authority. Guberman places great emphasis upon the proper use of topic sentences. Make sure that the topic sentence of every paragraph, if true, helps you win. And make sure that the topic sentences, in sequence, create a cogent argument. [4]

Most law students are taught to use the traditional TREAT or IRAC format. TREAT stands for Thesis, Rule, Explanation, Application, and a restatement of the Thesis in the conclusion. IRAC stands for Issue, Rule, Application and Conclusion. The approach is essentially the same for both formats. I consider this format to be a useful way of answering the judge’s questions for most summary judgment motions. But I would weave into the format an explanation of why the judge should not adopt the other side’s expected argument – assuming, of course, that you know what that opposing argument will be.

C. Keep it Simple: Just like with an appellate brief, I encourage you to make the arguments in your memorandum simple and easy to read. To that end, I suggest a few basic rules:

Try to use short and simple sentences. Resist the temptation to string together related concepts with conjuntions and dependant clauses. Keep your paragraphs down to no longer than half the page. If a paragraph is running too long, break it up into manageable parts. And to the extent you can, try to use parties, people or courts as the subject of your sentences, as opposed to abstract legal concepts. You should employ action verbs for the majority of your sentences. Consistent with this theme, Judge Mark Painter suggests that you use what he calls “the 1818 Rule." [5] You should try to structure your sentences so that they average no more than 18 words per sentence, and you should use a passive voice for no more than 18% of your sentences. Whatever approach you use, try to keep it simple.

Conclusion: By following these basic rules and adhering to the requirements for presenting a motion for summary judgment under Rule 74.04, you can make the judge’s life easier and give yourself a reasonable chance of success.

DISCLAIMERS: This article contains general information for discussion purposes only. The author is not rendering legal advice, and this article does not create an attorney-client relationship. Each case is different and must be judged on its own merits. Missouri rules generally prohibit lawyers from advertising that they specialize in particular areas of the law. This article should not be construed to suggest such specialization. The choice of a lawyer is an important decision and should not be based solely upon advertisements.

[1] Mo.Sup.Ct. Rule 74.04(c)(1).

[2] Hon. J. Bush, “How to Write a Motion for Summary Judgment," J. Mo. Bar (March–April, 2007).

[3] Mo.Sup.Ct. Rule 74.04(c)(1)

[4] See, R. Guberman, Point Made: How to Write Like the Nation’s Top Advocates (Oxford Univ. Press 2011).

[5] M. Painter,The Legal Writer, pp. 66-79 (3d ed. Jarndyce & Jarndyce Press 2005).

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