Denver Bar Association
February 2005
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Summary Judgments, Recusal and Other Advice

by Dora Karpiloff

by Dora Karpiloff

Dear Dora: I am an 11th-year associate at a mid-sized national law firm (2,360 lawyers) with an office here in Denver. I have filed 564 summary judgment motions, yet I have been granted summary judgment only twice (the first ruling was later vacated on a motion for reconsideration, the second was reversed on appeal). Do you have any suggestions on how to win more of these motions?

—Perplexed

Dear Perplexed:

I applaud your aggressive approach. However, you might give some thought to the following:

1. If you have to attach more than one exhibit to your summary judgment motion, or if any exhibit consists of something other than a contract, you may want to rethink whether it is worthwhile to file the motion.

2. If the case involves a negligence claim and your argument begins, "Reasonable jurors could not find the Defendant negligent under the circumstances here ..." you may want to reconsider filing the motion.

3. Try to focus on narrow issues of law. Use your motions to pare down, rather than destroy, the other side’s case.

4. Gauge your opposing counsel. If he or she strikes you as, perhaps, not-so-diligent a lawyer, weigh the likelihood that opposing counsel still will be able to avoid summary judgment against the real risk that you might, by filing the motion, cause the other side to pay some attention to the case, become educated on the law, and conduct needed discovery to establish a prima facie case before trial begins.

When I used to do product liability defense work for manufacturers whose philosophy was to try every case, I rarely filed summary judgment motions. I found that by taking this tack, often I was able to get many claims thrown out on directed verdict. Plaintiff’s counsel frequently was lulled into a false sense of security by my lack of pre-trial activity and failed to conduct necessary discovery and research before trial, or failed to present necessary proof to avoid dismissal of many claims at trial.

5. Sometimes it is useful to file a summary judgment motion to force the other side to show their hand when they are not meeting their disclosure and discovery obligations, or to help educate the judge as to key legal issues; but, please, balance these goals against the burden such motions place on the judge. Do not underestimate the judge’s ability to pick up the law at trial.

Now, go get ’em, tiger!

—Dora

Dear Dora:

I am new to one of Colorado’s more remote farming communities. In my very first case, I have learned that: (a) the judge is married to opposing counsel’s first cousin, and that they all have Thanksgiving and Christmas dinner together every year; (b) the judge’s son was punched in the nose last year by my legal secretary’s daughter for allegedly standing her up at a dance; and, (c) the other side’s two main witnesses work as farm hands for the judge’s wife’s brother-in-law, and the brother-in-law’s main feed supplier is opposing counsel’s law partner. First: Do any of these potential conflicts of
interest provide a basis to seek the judge’s recusal? Second: Any suggestions on how I might handle voir dire at trial — there’s a pretty good chance some of the potential jurors in this county of 145 people might have knowledge of the case or a connection with the parties or the witnesses?

—Conflicted

Dear Conflicted:

As far as recusal, I don’t see any grounds given the custom and practice here in the "West," so just carry-on! (You may want to review Justice Scalia’s memorandum opinion in the Energy Task Force case.)

As far as voir dire, you should consider bringing in what we used to call "local-local" counsel; although, from your return address, I think the only lawyer who would qualify is opposing counsel, and hiring him might conceivably raise some ethical issues.

You sound like a very serious and hard-working young man. I am sure you will do very well. Say "hi" to Judge Bob for me, would you?

—Dora

Dear Dora:

I know that "speaking" objections at depositions no longer are permitted. However, I have worked out a code with my clients so that when I give a particular legal objection (e.g., "form and foundation," "vague," "asked and answered," "improper opinion," etc.) my client knows that I want him to ask that the question be repeated and then to give a pat answer I have prepared that avoids answering the question. Any thoughts?

—Too Clever by a Half

Dear Too Clever:

I’m a big believer in meeting the letter and the spirit of the law. I’m afraid your ploy satisfies neither criteria.

—Dora

Dora Karpiloff practiced law in Colorado for 85 years. She now writes mystery novels and an occasional column for The Docket. Ron Sandgrund helps her sift through the thousands of letters that she receives every month.


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