The Honorable Danielle J. Hunsaker, Washington County Circuit Court
The Bench Perspective
Summary judgment motions are an important tool because they can reduce costs and shorten litigation by resolving a case before trial or narrowing the issues for trial, which often facilitates settlement. However, there can be downsides to seeking summary judgment, and attorneys should carefully consider their summary judgment strategy.
The purpose of this article is to identify things attorneys should think about in deciding whether to move for summary judgment. But first, a comment on the legal standard. These motions are not decided based on a level playing field. Summary judgment is proper only where “there is no genuine issue as to any material fact” and the law dictates that the moving party must win. ORCP 47C. In figuring out whether this standard is met, the court has to view the evidence in favor of the opposing party. The court cannot weigh the relative strength of the evidence or assess credibility, as happens at trial (or in typical decision-making processes). This standard exists because granting summary judgment takes the case or an issue away from the jury, which should be difficult given the jury’s role in our legal system. Sometimes it seems litigants don’t really understand what they are asking the court to do when they ask for summary judgment. This is not a tool for resolving cases that are merely “dumb” or “weak.” It is a tool for resolving cases where the law dictates a specific outcome.
Now a few suggestions:
1. Identify a Worthy Goal
One of my mentors taught me to think about summary judgment in terms of impact. Sometimes you can resolve an entire case. Sometimes you can resolve only a part of a case. A small goal can be worthwhile, but some rules of thumb to consider are whether prevailing on your motion will (1) simplify the issues to be presented at trial, (2) narrow discovery, (3) eliminate the need for experts, or (4) narrow the available remedies. Each of those possibilities can have a meaningful impact. But if all you can hope for is eliminating one legal theory underlying a claim or eliminating one of several claims based on the same facts and providing the same possible remedy, that may not be significant enough to justify spending the time and money filing a motion. Knowing what your goal is not only helps assess whether to file a motion, it also helps sharpen your presentation if you do file.
I have heard attorneys say that “educating the judge” is a reason to move for summary judgment. This is problematic for at least two reasons. First, in many courts the judge who hears your motion likely will not be the same judge who presides at trial or any other proceedings in the case. And second, litigators risk losing credibility when they file motions that cannot be won on their merits.
2. Realistically Assess the Strength of Your Position
Attorneys need to be realistic about the likelihood of reaching their goal. Just because you can doesn’t mean you should. This is true with many things, including summary judgment motions. A colorable argument in and of itself is not a reason to file a motion. Do the work to understand the strengths and weaknesses of your case and anticipate your opponent’s position. An effective advocate must be able to see the case from more than just their client’s perspective. This includes considering whether you are likely to succeed in the trial court and on appeal. It is difficult to acquire precise data, but a significant percentage of summary judgment motions that initially succeed do not survive appeal. Don’t forget the long game when deciding whether to file for summary judgment.
3. Assess the Evidence
Summary judgment motions are evidentiary motions. Any evidence that you need to prevail must conform to the light-most-favorable-to-the-nonmovant standard. A practice I tried to follow as a lawyer was to draft my factual statement relying only on evidence from my opponent’s witnesses, if possible. If you find that the evidence you need comes only from your witnesses, that may be an indication that you are not likely to prevail.
Any evidence you present must be competent and admissible. ORCP 47D. Figure out how you would admit at trial each piece of evidence you need and then demonstrate the admissibility of the evidence in your motion papers. If you can’t establish a foundation for your evidence or if you have a hearsay problem that can’t be resolved, you have a problem.
Sometimes it seems attorneys think anything said in or attached to a declaration is acceptable. Not true. Attorneys can’t testify in their own cases except about very limited topics. ORPC 3.7. Therefore, the scope of topics properly included in an attorney declaration is likewise limited. All declarations must be based on the declarant’s personal knowledge. “Information and belief” assertions don’t work, nor do hearsay statements to which no exception applies. See West v. Allied Signal, Inc., 200 Or App 182 (2005), U.S. Bank, N.A. v. McCoy, 290 Or App 525 (2018). And don’t forget about documents. They must be attached to a declaration that establishes the necessary foundation. ORCP 47D.
4. Put Yourself in the Judge’s Shoes
This point relates to each of the others, but it is worth making separately. Too often litigants put little, if any, thought into the judge’s job of taking what they file (and argue) and figuring out an answer to the questions raised. The more difficult you make this job by not clearly understanding your case or not spending the time necessary to assess your evidence and clearly present your arguments, the more you risk wasting the time and money you’ve spent bringing the motion. Denial of summary judgment typically is not reviewable, meaning there’s no risk that the trial judge will be reversed in denying the motion and letting the factfinder figure things out after a full evidentiary presentation. Freeman v. Stuart, 203 Or App 191, 194 (2005). This is not an excuse for trial judges taking the easy way out and failing to conduct a reasoned analysis, but attorneys are foolish not to think about this when considering their summary judgment strategy. Timing is also a factor. Attorneys cannot expect the court to expedite their motion just because it was filed on the last possible day with a fast-approaching trial date.
Jason Kafoury, Kafoury & McDougal
The Plaintiff’s Perspective
Our firm handles a variety of large and small cases. At any given point, we typically have around 125 cases in litigation. Our litigated cases range from ordinary negligence/personal injury claims, such as motor vehicle accidents, to a wide range of complex, non-standard cases involving anything from sex abuse to defective products.
While preparing for this CLE, it has been difficult to get accurate numbers on how often state courts grant defendants’ motions for summary judgment, and how those numbers break down across different types of civil cases. From our firm’s perspective, I would estimate we face MSJs in 10% of our ordinary negligence cases and 60% of our non-standard negligence cases. Looking at past years, I would estimate we prevail on all or some portions of the MSJ 95% of the time.
In the rare occurrences where an MSJ is granted, we almost always appeal, given the low threshold of meeting the “any evidence” standard to prevail on an MSJ. Whether the defense moves for summary judgment seems to vary by defense firm. (Some firms are much more aggressive than others in filing MSJs.) Obviously, there are strategic decisions about cost and likelihood of success that the defense and their insurance carriers make on a case-by-case basis. However, in our experience, we see a lot of boilerplate MSJ language, string-citing to out-of-state authorities. Many of those motions are examples of form over substance. Another common pattern we see is a defendant attempting to raise new issues in their reply brief, which is both unfair and against the rules, since plaintiff has no opportunity to respond until the hearing. You should always object to this at oral argument.
Here in Multnomah County, over my ten years, we have seen a lot more pro tem judges assigned summary judgment motions. Our firm’s traditional policy is to request regular sitting judges for any MSJs, unless we feel very comfortable with the pro tem selection. I suggest researching your pro tem judge the moment you get the notice from the court and ask around for advice to other lawyers as well.
Here are some strategic tips for new lawyers on the plaintiff’s side when responding to an MSJ.
Summary Judgment: Pointers for Plaintiffs
Start your response by concisely stating why your client should prevail. Don’t lead off with boilerplate, and don’t start by criticizing the defendant’s characterization of facts or law. If there is a genuine issue of material fact, state the facts supported by admissible evidence. If expert testimony defeats the summary judgment, start by stating so.
When you get the defendant’s motion for summary judgment, you may wish to take a black sharpie pen and mark through every conclusory, unsupported statement of fact or law. Cross through all boilerplate statements of the law and string citations. You will generally find that the defendant’s motion ends up being a whole lot shorter after you do that.
Next, focus on whether the motion for summary judgment is one of a matter of law, a mix of facts and law, or simply factual. Do not respond based on how defendant framed the argument (also, don’t feel compelled to respond to the defendant’s arguments in order). Tell the court why your case has legal and factual merit. After you have done that, then address defendant’s arguments.
In any case where you have retained an expert, and the motion for summary judgment is based on a mixture of law and fact, or simply facts, ORCP 47(E) allows a plaintiff to defeat summary judgment if an issue of fact is susceptible to proof by expert testimony. The scope and power of ORCP 47(E) must be understood, to wit:
The attorney is not required to identify the issues that the attorney will prove by expert testimony and those that the attorney intends to prove by non-expert evidence, and the attorney may not want to reveal the range or limits of the expert’s testimony. Thus, an attorney may aver that an expert is available and willing to testify to facts or opinions creating a question of fact without specifying the issues on which the expert will testify.
Two Two v. Fujitec Am., Inc., 355 Or. 319, 329, 325 P.3d 707, 713 (2014).
Once you start specifying the issues on which the expert will testify, you may be trapped. Moore v. Kaiser Permanente, 91 Or.App. 262, rev. den. 306 Or. 661 (1988). If you feel that you need to specifically delineate an issue that an expert will address, perhaps to avoid any question that an affidavit is made in good faith, be careful how you word it. Expert testimony is very difficult to summarize in a sentence or two, and you should always qualify the statement that the expert will testify to such issues “including but not limited to.” If you take this path, you should craft the 47(E) affidavit with regard to particular specifications of negligence or claims for relief, rather than how defendant has characterized your deficiencies in their motion for summary judgment.
An ORCP 47(E) affidavit can only be used when an issue of fact could conceivably (“may” or must) be proven by use of expert testimony. Hinchman v. UC Market, LLC, 270 Or.App. 561 (2015) (involving an alleged hazardously installed floor mat) citing Whalen v. AMR, 256 Or.App. 278 (2013) (involving a battery).
ORCP 47(E) is a powerful tool that the legislature has provided to plaintiff’s attorneys. Do not abuse it. If an affidavit is presented in bad faith, the plaintiff will be required to pay the reasonable expenses, including attorney fees, of the defendant, and you, as an attorney, may be subject to sanctions for contempt. ORCP 47(G).
At the end of the day, the defense has to make a calculated decision on the likelihood of success versus the cost of going through an MSJ. Unless we think there is a serious risk of losing on an MSJ, our firm will almost never negotiate until we have survived summary judgment, because insurance carriers won’t put their top value on a case until after an MSJ is decided. Our firm very rarely files MSJs, but there are certain cases where, strategically, it makes sense to eliminate affirmative defenses or resolve contract-based issues through MSJs from the plaintiff’s side.
Overall, I would advise the defense to analyze carefully the chance of success when deciding whether to file an MSJ. If a 47(E) affidavit is enough to survive an MSJ, think twice about filing the MSJ.
Joel Mullin, Stoel Rives, LLP
The Defense Perspective
There is a perception that filing a motion for summary judgment in Oregon state court is a futile endeavor. Even if the circuit court grants your motion, the thinking goes, the Court of Appeals will likely reverse to allow the trial court to further develop the record and leave resolution of the case to a jury. Further, the hurdle to winning on summary judgment is greater in light of ORCP 47 E, that uniquely Oregon rule (that together with the absence of expert disclosure establishes Oregon’s well-deserved reputation for trial by ambush) which allows a party to avoid summary judgment simply by filing a vague affidavit stating that an expert’s testimony will create a question of fact.
Since the party filing the affidavit need not include much specificity on the issues the expert will testify to, the court must sometimes engage in “an act of imagination” to determine whether a point at issue in the defendant’s summary judgment motion is susceptible to proof through expert testimony. Hinchman v. UC Mkt., LLC, 270 Or App 561, 570, 348 P3d 328, 334 (2015). An ORCP 47 E affidavit precludes summary judgment on its own, except where the point at issue “could not conceivably be proven through expert testimony, but necessarily would require proof by testimony from witnesses with personal knowledge.” Id. at 572.
Despite the perceived difficulties in successfully moving for summary judgment, the exercise is worthwhile where: (1) the application of the legal issues is clear, such as a case that depends heavily on contract interpretation, (2) it provides the court with a path to resolving the case, and (3) it provides the moving party with a clearer idea of the other side’s case.
First, summary judgment is often a preferred alternative to the filing of a motion to dismiss where the matters at issue concern the interpretation of a contract, or otherwise involve a rule of law, but where a court may be reluctant to dismiss without a more fully developed record. An example, albeit several years old, is Vinton v. Knight, Case No. 0305-05567 (Or Cir Ct Oct. 3, 2003), which involved claims for tortious interference with contract, breach of an express contract, and breach of an implied contract in connection with a dispute over the former Will Vinton Studios (now Laika Studios). In that case, rather than move to dismiss, the defendants moved for summary judgment, requiring the plaintiff to identify the specific discovery it believed was necessary to develop the record. Following that discovery, and on a record that included plaintiff’s evidence, the court entertained the motion for summary judgment. In its opinion granting the motion, the court first addressed whether the defendants had tortiously interfered with the plaintiff’s employment contract, and wrote, “The truth lies somewhere in the thicket of notes, phone slips, e-mail messages, and corporate minutes offered by the parties. But I need not hack my way through it.” Id. at 2. The court granted summary judgment on the tortious interference claim because Oregon law only recognizes the improper purpose element of tortious interference where the interference is motivated solely by ill will. In Vinton, creating a record that showed that the defendants had other motivations was enough to defeat the plaintiff’s claim. The court went on to easily dispose of the breach of contract claims by interpreting the contract and applying its unambiguous terms to the facts.
Similarly, in Butler Block, LLC v. Tri-Cty. Metro. Transp. Dist. of Oregon, 242 Or App 395, 255 P3d 665 (2011), dealt with a claim for breach of contract. The plaintiff had tried to frame the issue as requiring the court to determine whether the defendant was required to give the plaintiff an extension to obtain construction financing, and whether the defendant’s failure to do so constituted anticipatory breach. The Court of Appeals was able to uphold the trial court’s grant of summary judgment because it held that no reasonable person could understand the defendant’s written statements to express an unconditional and unequivocal intent not to perform. Further, the defendant’s statements that it intended to terminate the contract should plaintiff fail to perform were entirely within its contractual rights. Cases that involve interpreting contracts or written conduct allow a trial court to make a determination as a matter of law and are more amenable to summary judgment.
Two more recent cases confirm the strategy for moving summary judgment. In W. Prop. Holdings, LLC v. Aequitas Capital Mgmt., Inc., 284 Or App 316, 392 P3d 770 (2017), the Court of Appeals interpreted the contract at issue to identify the duties that the defendant owed to the plaintiff. From there, it was possible for the Court of Appeals to conclude as a matter of law that the defendant had not breached the contract or the implied duty of good faith and fair dealing. Likewise, in Gibson v. Bankofier, 275 Or App 257, 365 P3d 568 (2015), even an ORCP 47 E affidavit could not save a case from summary judgment. The plaintiff counsel’s affidavit stated that the expert would testify that the defendant had breached certain duties as a real estate agent, but such testimony did not go to a point at issue because the plaintiff had failed to provide any evidence suggesting that the defendant even owed such duties to the plaintiff. An ORCP 47 E affidavit cannot preclude summary judgment where a claim may be disposed of as a matter of law. VFS Fin., Inc. v. Shilo Mgmt. Corp., 277 Or App 698, 707, 372 P3d 582, 587 (2016).
As a defendant, it is my practice to always attempt to portray the dispute as one involving issues of law, rather than disputed issues of fact. Moving for summary judgment (rather than relying on a motion to dismiss) permits the defendant to test that theory on a more developed record and even if unsuccessful, to force the plaintiff both to come forward with the facts and law that it believes to be at issue, and to look closely at the strengths and weakness of its own case. This both can give the defendant important insight into the plaintiff’s view of the dispute and to obtain a more reasonable settlement, if that is the client’s objective. In addition, even parties filing an ORCP 47 E are, in my experience, tempted to explain why the expert’s testimony will create an issue of material fact, rather than relying entirely on the court’s imagination. That explanation can prove helpful to the defense.
Finally, the perception that there is only a small chance to prevail on a motion for summary judgment is contrary to reality. According to statistics gathered two years ago in Multnomah and Washington Counties, approximately 45% of all motions for summary judgment are granted. Statistics on how many of those motions are appealed and the reversal rates in the Court of Appeals are difficult to come by. Nonetheless, it is a worthwhile endeavor for defendants in cases where the defendant can portray the dispute as one involving legal rather than factual matters, which is usually the goal of those on the defense side.