As any civil procedure professor won’t tell you, Summary Judgment is the tool that opposing counsel uses to tell the world that you are full of shit: Opposing counsel is telling the Judge you are full of shit. Opposing counsel is telling your firm that you are full of shit. And Opposing counsel is telling your mom that you are full shit.
But other than the public embarrassment, it can also end your case. Thus, it is something that cannot be taken lightly. In order for you to respond effectively, efficiently and with authority, one must approach the response brief with a time-tested formula (that my partner uses every time):
You knew this day would be coming.
You were told not forty-eight hours ago that opposing counsel would be filing this Motion. You are not surprised when the messenger arrives with a package for you nor are you surprised that it came so late in the day (the opposing counsel strategically sends it so as to implode your night).
The text of the motion is less than 15 pages, but with all exhibits attached this beast has grown to nearly 600 pages of disgusting horror.
You do not read the motion when it comes it. It sits on your desk like a phone book gathering dust and taking up space while haunting every fiber of your being. It screams “you suck!” and you sneak out of the office without so much as a heads up to anyone.
You are tormented by the fact that someone has called out to the world that you cannot bring a case where liability is solid. You begin to question your every legal decision that you have ever made. You believe that you are a total and utter hack. There is wailing and gnashing of teeth.
Sleep does not come. You lay sleepless working through every fact of the case. Over. And over. And over again…
When you shake yourself loose from the stasis that you have fallen into, you begin to think about the positives of the case. That facts that you once made you believe that you were invincible to this procedural smear campaign start to emerge from their hiding spaces in your collective memory.
You begin to think positively in spurts and small doses; before those negative feelings of despair and malpractice begin to retake your conscious.
You return to the office and fill your day with work on other cases. You do not under any circumstance look, think about, glance at or dare read the motion. You do move it to a secure location, like Dick Cheney’s bunker (or underneath your trash can).
You finish a positive day at work, full of positive energy and head home to a glass of scotch.
You awake refreshed and invigorated. You know that you are going where others have gone before. You are the Plaintiff’s attorney: defender of the victim, vanquisher of the negligent and you care about your 1/3rd!
Nothing that some hack defense attorney writes is going to stand in the way of your judgment, your expertise and your litigation moxie! Your new mantra is simple: you will cut opposing counsel’s balls off (even if she doesn’t possess a pair).
You begin to plot how you go Ezekiel 25:17 on opposing counsel. You begin researching case law with similar facts to yours, you send your associates and paralegals to Westlaw and IICLE to begin researching broad topics of law with the barest of connections to a possible argument that you may be facing.
You spend the entire day planning for the worst. But under no circumstances, do you read the motion.
It’s a time-honored tradition. It’s also how to give yourself an ulcer without really trying.