Summary Judgment in Practice / Rule 56

This episode is about the practical application of summary judgment and FRCP 56.

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Welcome to the Civil Procedure Podcast. I am your host Thomas Main and this episode is about the summary judgment motion In practice that's Rule 56. Summary judgment was once considered to be an extraordinary remedy, but in contemporary litigation it is the focal point. When we're tackling a summary judgment on an exam, we want to go on a cause of action by cause of action basis. So if you have a couple of causes of action, then you should tackle the summary judgment question as to each of those causes of action separately. Moreover, because summary judgment is all about the elements of the cause of action, you would wanna break each of those causes of action down so that you're addressing each element of those causes of action separately. Here's what I would encourage you to do. When you're tackling a summary judgment question, create or imagine a table or a matrix with three columns in that table or matrix and down the middle column of that table give each element of the cause of action a separate row. So each cause of action gets its own table and each element of the cause of action gets its own row within each of those tables. So with the middle column of this table populated with the elements of whatever cause of action, we're analyzing the left and the right hand columns respectively help us organize the plaintiffs on the left and the defendant's evidence on the right with regard to each of those elements. So imagine for example, that our cause of action is negligent entrustment of a vehicle. That's a cause of action that exists in circumstances where somebody's suing the owner of a vehicle after an accident because they were injured by a driver and but they're suing the owner of the vehicle for negligently entrusting that vehicle to somebody who caused the accident. That cause of action has four elements, so down the middle column of our matrix would be the four elements of that cause of action. First row entrustment by the owner of a vehicle. You've gotta be suing the owner of a vehicle and that owner has to have entrusted the driver with it. Open boxes to the left and the right would respect the plaintiff's and the defendant's evidence on that element second row to a known unlicensed, incompetent or reckless driver and so forth. Whatever the cause of action is, just put the elements, each element gets its own row in the table and we can start thinking about the plaintiff's evidence corresponding with the element and the defendant's evidence that correspond with that element on the left and right hand sides of our column. Now for review or context or contrast, think about this table in the context not of a summary judgment motion but of a 12 [inaudible] [inaudible] motion to dismiss for failure to state a claim at the pleading stage on a 12 [inaudible] [inaudible] we populate that left hand column with the allegations in the complaint that correspond to each of those elements at the summary judgment stage. It's not allegations that belong in the boxes at the summary judgment stage, it's all about and only about evidence. So thinking about that matrix then with respect to element number one, the plaintiff needs evidence that the defendant is the owner of the vehicle and needs evidence that the defendant entrusted the driver with that vehicle and then is worth thinking about the second row. In this second element, the plaintiff needs evidence that the defendant owner, what did I say? The element was that the defendant owner knew that the driver was an unlicensed, incompetent, or reckless driver. Summary judgment is about evidence for these elements. Of course you can imagine that while the plaintiff is aggregating evidence to support their case with respect to each of those elements, the defendant is also aggregating contrary evidence with respect to one or more of the elements. And you can imagine that evidence is populating the boxes in the right hand column of our matrix. So with respect to element one, the defendant might have evidence that the driver borrowed or maybe even stole the owner defendant's car without asking for permission. And then on the second row with respect to the second element, we could imagine that the defendant might be aggregating evidence that the defendant owner had no knowledge of the driver's driving record. Now, it's useful to imagine that this process of putting evidence in the corresponding boxes is nothing more than preparation for trial. Think of it as trial preparation if or when we go to trial. Here is the evidence in the left-hand column that the plaintiff is likely to introduce with respect to element number one, and here's the evidence that the plaintiff is gonna introduce with respect to element two and so forth. Same with the defendant, they're doing trial prep and here's the evidence that they plan to introduce with respect to element one or element three, it's useful to think of this as trial prep because summary judgment is all about whether we need to have a trial and if by looking at both parties trial prep, if we could see that plaintiff couldn't possibly win because let's say they have no evidence of element number two, well that's what summary judgment is ultimately about the inefficiency or pointlessness of having a trial. If we can already see who must win the official standard for granting a summary judgment which is set out in federal rule 56 A is when the movement shows that there is no genuine dispute as to any material fact and the movement is entitled to judgment as a matter of law close quote , that's the standard that we use when we're writing briefs or when we are talking fancy, but in the quiet thoughts of your head, here's what that standard in fact means. The formal version has two parts to it. The first formal part is when there is no genuine dispute as to any material fact, that simply means that the box that corresponds to an element is functionally empty and I'll talk about what we mean by functionally empty shortly, but the idea of no genuine dispute as to any material fact, those fancy words you can translate in your head as empty box. Now the second part of the test is according to the fancy words and the movement is entitled to judgment as a matter of law. Well, that just simply means that we need to examine the consequences of an empty box. If we get to this second part of the test, we have found in the first part an empty box and in this second part we're being asked to consider the consequence of an empty box. When the movement on the summary judgment motion is a defendant, then to show that the plaintiff has an empty box means that you win the cause of action. It means that you are entitled to judgment as a matter of law and that's because at trial the plaintiff needs to prevail on all of the elements of the cause of action. They cannot survive an empty box if the negligent entrustment of a vehicle cause of action is tried. And if the plaintiff can't prove element number two, then plaintiff cannot win full stop. But the reverse isn't true when the movement on a summary judgment motion is a plaintiff to show that the defendant has an empty box isn't so consequential, the defendant on the negligent entrustment of a vehicle count might even concede element number one. They might offer no contrary evidence at all. The defendant could say, yeah, just like plaintiff said, I am the owner of the vehicle and I did give permission to the driver to use it. Well, the defendant's box would then be empty as to element number one and the first part of the two-part test of summary judgment, the no genuine dispute of material fact , the empty box, yeah, that would be satisfied, but the second part of the test wouldn't be satisfied because the plaintiff wouldn't also be entitled to judgment as a matter of law. Sure, the defendant's box would be empty as to element number one, but defendant doesn't need to win every element. They only need to win one element at trial so they can win at trial by conceding all of the elements except for let's imagine say element number two. Maybe they have really strong evidence that the owner did not know that the driver was unlicensed, incompetent or reckless, or maybe the driver wasn't unlicensed, incompetent or reckless. If they can prevail on that second element at trial, they're gonna win the case. So what that means for us at the summary judgment stage is that a plaintiff who can point to an empty box of the defendants would satisfy the first part of the summary judgment standard. There is no genuine issue of material fact as to whether the owner of this vehicle entrusted the driver with it, but that empty box wouldn't satisfy the second part of the test because an empty defendant box does not entitle a plaintiff to a judgment as a matter of law. Indeed the only way a plaintiff can satisfy the second part of the summary judgment test is to show that all of the defendant's boxes are functionally empty. Now let's talk about exactly what we mean by a box being empty or at least functionally empty because this is the place where you earn all the points on the exam or the wins in practice. Well, actually there are two places, this is the second. The first is allocating all of the evidence from the fact pattern or the file and putting it in the right box so that we know what we have. That means evidence that we've learned through discovery, depositions, interrogatories, documents, importantly, it also means affidavits. You need affidavits because remember that we don't take formal discovery of our own witnesses. Now if the other side has taken our client's deposition or has requested a document or served an interrogatory, then we will certainly be mining that formal discovery to put that evidence in the corresponding box or maybe we've even produced something as part of our mandatory initial disclosure obligation that belongs in the box as evidence of the element where it appears. But often some of your best evidence are sentences that your client would say at trial, but they haven't yet had the opportunity to say that sentence in some formal discovery response. They haven't been asked the right question in an interrogatory or in a deposition, and you can put such sentences in an affidavit, have your client sign it under the pains and penalties of perjury and then use it as evidence to put it in the right box. If you've got literally nothing in the box, then there is no disputed issue of material fact on that element. Usually it's not that there is absolutely nothing in the box but rather that from the perspective of the moving party, you would argue it's functionally empty or to put it back into the language of the standard, there is no genuine issue of material fact. Here's how you analyze whether there is enough in the box or to use the fancy words enough to create a genuine issue. What you do is you have to imagine there being a trial and you need to visualize a jury hearing all of the evidence that you've put in that plaintiff's box and then you ask yourself or on the exam you discuss whether a reasonable jury , a reasonable jury could from hearing that evidence and drawing inferences from that evidence could find that element satisfied. Would that be a reasonable conclusion based solely on that evidence in the box? So imagine, let's go back to that second element of the negligent entrustment of a vehicle cause of action if the only evidence in the plaintiff's box with respect to that element number two, the element that the defendant knew that the driver was an unlicensed, incompetent or reckless driver, if the only evidence in the box was, let's say these three things. One, the driver lost her license because of a D U I driving under the influence A D U I conviction three months prior to this incident. Plus item number two, the driver was the defendant's sister and item number three, that one month prior to this incident, the driver asked to borrow her brother, the defendant owner's car to take it on vacation and he said no. Now if it would be reasonable for a jury that heard only those three inputs, if it would be reasonable for them to hear that and to conclude as an output, yeah, we think this defendant knew that the driver was unlicensed, incompetent or reckless, if that would be reasonable, then there is a genuine issue of material fact. If however, that conclusion or output would be unreasonable based only on those inputs, then that is to say that the box is functionally empty. No reasonable jury could reach the conclusion that the defendant knew that the driver was unlicensed, incompetent or reckless solely because it was his sister and the fact that he wouldn't let her borrow the car to take it on vacation. Well, that really doesn't say much of anything about what he knew. That would be to conclude that there was no genuine issue of material fact on that element and that the moving party would be entitled to judgment as a matter of law. Now, appreciate the importance then of getting more evidence into that box, doing better trial prep as it were if you were the plaintiff's lawyer here, you need evidence in that box about how close the defendant owner and his sister are. The fact of their sibling relationship alone may not be enough, but what if we add all sorts of details about how close the two siblings are, how their lives are intertwined and their neighbors and their kids play together and because their lives are so intertwined, the subtext is it's inconceivable that with kid drop-offs and pickups from school that her driving history wouldn't have been an issue in his life and imagine more evidence that could go into the box about how they shared intimate details of their lives with each other about illnesses and misdeeds and and so of course he had to know about his sister's D U I or maybe there's evidence that the defendant owner brother loaned his sister $2,500 the day before she made a $2,500 payment to the lawyer who represented her in the D U I case. Our job as plaintiff's lawyers is to make sure the judge sees enough evidence in the box. Our job as exam test takers is to discuss the reasonableness of reaching the conclusion that the element is satisfied based solely on what's in the box. Now let's go over four common mistakes. Common mistake number one , using allegations from the complaint to populate the box. Lots of exams will discuss in certain paragraphs the complaint that was filed and then in other paragraphs of the exam there will be compilations of the evidence, but an allegation is not evidence, so do not make the mistake of using allegations from the complaint to populate the box, but this gets a little tricky, which is why it's on the common mistake list because an admission in an answer can be used to populate the box. One way to remember this is that the complaint can't give you evidence to defeat a summary judgment, but an answer could an admission in an answer that the defendant is the owner of the vehicle in our hypothetical negligent entrustment suit. That admission can populate the box for that first element which requires the plaintiff to prove entrustment by the owner of the vehicle. Second common mistake. Looking at contrary evidence, it's easy to get distracted or even seduced by evidence in the defendant's box evidence that the defendant is assembling as part of their trial prep. It's easy to get distracted by that when you're analyzing the sufficiency of the evidence in the plaintiff's box On a summary judgment motion, we do not weigh evidence at the summary judgment stage. W E I G H. We do not weigh evidence. That's what the fact finder will do at trial. Yes, but at trial the fact finder will also be making credibility determinations about whom to believe, and at the summary judgment stage, we are going to assume that the jury won't believe the defendant's witnesses. None of the defendant's evidence really matters at the summary judgment stage. We do this because we are looking at the case in the light most favorable to the plaintiff because if we grant this summary judgment, we are throwing the plaintiff's cause of action out and we shouldn't do this lightly. So if with respect to element number two of our hypothetical case here, imagine that there is an affidavit or an interrogatory answer or a deposition transcription recording the defendant saying something like, I did not know that my sister was an unlicensed driver. I allowed her to drive my own kids in her car and I would never have allowed that if I had any reason to believe that she was unlicensed or incompetent or reckless. That's the kind of evidence that can be distracting, can be seductive. When you're trying to analyze a defendant's summary judgment motion and looking at the sufficiency of the plaintiff's evidence, do not weigh that evidence. Instead, consider the plaintiff's evidence in isolation from whatever the defendant might also be saying because the jury might disbelieve everything that the defendant says. The issue here is not what defendant says, rather the question is whether the plaintiff's evidence could lead a reasonable jury to find that element satisfied. And of course we do this analysis for each element of each cause of action. Third common mistake confusing the respective roles of plaintiffs and defendants. As we've already said, when defendants move for a summary judgment pointing to one functionally empty box means that defendant wins the summary judgment motion. That's because the empty box satisfies the first part of our test, no genuine issue of material fact and when the moving party is a defendant identifying one empty plaintiff box that satisfies the second part of the test for summary judgment, also the moving party is entitled to judgment as a matter of law under those circumstances. Now the common mistake is confusing the roles of plaintiffs and defendants when plaintiffs move for summary judgment pointing to a functionally empty box satisfies the first part of the test. Empty box equals no genuine issue of material fact on that element. However, second part of the test isn't satisfied when one box is empty. Plaintiffs are not entitled to judgment as a matter of law unless all of the defendant's boxes are empty and that can be the case. For example, when a lender sues a debtor for an unpaid debt. Well, if the debtor isn't challenging that that's their signature, they aren't challenging the the fact that they've failed to repay the debt. We could imagine that their boxes are empty on the defendant's side and when all of the defendant's boxes are empty, well then summary judgment for the plaintiff would be appropriate. After all, what's the point of going to trial if the defendant is not making an argument that a reasonable jury could honor? But here's where mistakes tend to come in. First of all, when we're talking about plaintiffs and defendants moving for summary judgment, we're keeping things simple, but remember that it's not always so simple. Sometimes a defendant on one claim is a plaintiff on a counterclaim or a cross claim . So a plaintiff on a main claim can be a defendant on a counterclaim and whenever in the context of summary judgment, we're talking about plaintiffs moving for summary judgment or defendants moving for summary judgment. When we use those terms, plaintiff means the one who is asserting the claim and the defendant means the person who is defending against that claim. But that can get confusing when the party asserting a claim is asserting a counterclaim because in that sense the plaintiff for our purposes of summary judgment is somebody that in other contexts in this same fact pattern, we're referring to them as defendants. So when we're talking about plaintiffs or defendants moving for summary judgment, you need to orient them. The plaintiff is whoever it is that is asserting the cause of action and the defendant is resisting d defending against that particular cause of action. But it gets still worse when we're talking about this particular common mistake because another complicator involves affirmative defenses. You might remember from the episode on answers that I said it can be useful to think of affirmative defenses as having elements. The reason that that's useful is because we can have summary judgments on causes of action because of affirmative defenses. Just like we can have summary judgments on causes of action because of defects with respect to some element of the cause of action, but because affirmative defenses are theories of non liability asserted by defendants, the roles of plaintiffs and defendants get flipped when we are talking about summary judgment because of an affirmative defense. For example, imagine a negligence case where the defendant asserts an affirmative defense for assumption of the risk. Let's imagine that the plaintiff who was injured while base jumping sues the base jumping company for negligence. And let's imagine that in the relevant jurisdiction assumption of the risk is available as an affirmative defense. The defendant base jumping company moving for summary judgment on that negligence claim could be moving for summary judgment because the plaintiff doesn't have evidence to support one of the elements of their negligence cause of action. That's what we've been talking about from the outset of this episode, but now I'm flagging a second possibility because they could also or they could instead be moving for summary judgment on their affirmative defense of assumption of the risk. Now in both of those instances, the base jumping company will be pointing to empty boxes, but in the latter instance when they're moving for summary judgment because of the empty box on the affirmative defense, they're more like a plaintiff. And if that affirmative defense, if their affirmative theory of non liability had a couple of elements to it, then the base jumping company would be entitled to summary judgment on that affirmative defense. Only if they could prove that they will necessarily win on all of the elements of their affirmative defense, which is to say that the plaintiff's boxes on all of the elements of the affirmative defense must be functionally empty. That leaves common mistake number four, and that involves issues on summary judgment where there are pure questions of law. All of the fun summary judgment stuff that we've been talking about involve questions of fact or mixed questions of law. In fact, pure questions of law can be resolved by the judge full stop. It doesn't matter how disputed they are. Questions of law would be resolved by a judge at trial and so they can be resolved by a judge at a summary judgment. Stage two , with respect to pure questions of law, there is no prediction of how some reasonable fact finder might handle it because they aren't gonna be handling it. Judges resolve questions of law, juries only resolve questions of fact. Questions of law are always for the judge. Now let's cover a few doctrinal points as we start wrapping up our coverage of the summary judgment motion. There are three doctrinal issues that we need to cover. First, admissibility of evidence. Evidence does not need to be in an admissible form at the summary judgment stage provided. There is good reason to believe that it will be in an admissible form at trial as a matter of the law of evidence. An affidavit for example, is very seldom admissible at a trial. Yet at the summary judgment stage, an affidavit from your plaintiff client might stave off a summary judgment provided your client can be expected to testify at trial. Again, it doesn't need to be admissible now, but the court needs to know that it will be in an admissible form at trial. Well then it's a different situation if someone at the summary judgment stage is invoking evidence that will not be admissible at trial because a summary judgment is essentially a prediction of what would happen at trial and so therefore only evidence that will be in an admissible form at trial should be considered at the summary judgment stage. Second doctrinal issue timing. The typical timing for a summary judgment motion is at the end of discovery. The purpose of a summary judgment motion is to resolve summarily cases where the result of a trial is a foregone conclusion. Why have a trial if we know what the result's gonna be? And in the ordinary situation, we don't know what the result of a trial is likely to be or must be until both sides have had a full and fair opportunity to gather all of the relevant evidence. But rule 56 says that the motion can be brought much sooner than that and therefore you need to be ready to use it earlier or to expect the other side to bring it earlier. Whenever you are bringing or resisting a summary judgment motion that is filed before discovery is complete, you need to reconcile or to discuss two competing narratives. One of the narratives is that the party bringing the motion will no doubt be saying summary judgment is here to unmask litigants who don't have evidence for their claims or defenses and the moving party. We shouldn't have to endure months of discovery on this meritless case. That's one narrative summary judgment is here to unmask litigants who don't have evidence, but there's a competing narrative. Number two, and that is the party resisting the motion will no doubt be saying we haven't had the full opportunity to develop our case. Look at rule 56 D Judge and please give me more time to make my case. Deciding the summary judgment would be premature at this stage. Reconciling those two competing narratives is about whether additional time, additional discovery makes sense, whether it will really make a difference. The way to appreciate what's going on here is to remember that a plaintiff can survive a 12 [inaudible] six . Let's do a little review. A plaintiff can survive a 12 [inaudible] [inaudible] motion to dismiss with just allegations. A plaintiff can survive a 12 [inaudible] [inaudible] even when the complaint is a complete fantasy of untruths. And that's because the 12 [inaudible] [inaudible] isn't evaluating the truthfulness of the allegations but rather the sufficiency of the allegations. And so as long as the fantasy in the complaint invokes a cognizable claim, and as long as the fantasy in the complaint contains sufficiently detailed factual allegations, and so long as the details in the fantasy of a complaint don't negate an essential element of the cause of action, that complaint, fantasy or not will survive A 12 [inaudible] [inaudible] The 12 [inaudible] [inaudible] only evaluates the face of the complaint. By contrast, the summary judgment demands evidence. So a judge who is suspicious or skeptical about whether a party actually has or will ever have evidence will entertain a summary judgment motion before discovery is complete. Why have this poor defendant dragged through months of discovery giving the plaintiff leverage in a settlement negotiation? Why tolerate such a thing when summary judgment can put the plaintiff's evidence or lack thereof to the test? So net net , whenever a summary judgment is filed before discovery is complete, the party opposing that motion should file a 56 D seeking additional time and the judge will be using her discretion to figure out whether or how much additional time should be allowed before the summary judgment is considered. Third doctrinal point. Any discussion of summary judgment doctrine invariably will invoke the famous trilogy of cases about summary judgment that were decided by the Supreme Court in 1986. Here is the upshot of each of those three cases in the trilogy and how they affect our contemporary application on an exam or in practice. First celotex celotex reduced, arguably, even eliminated as a practical matter the moving party's burden. That's what cellex is about. The moving party's burden. You wanna bring a summary judgment motion. Well, what do you have to do on the movements side? And according to Cellex , the moving party need only point to the empty box on the plaintiff's side. If a defendant on the negligent entrustment of a vehicle claim is moving for summary judgment, they can merely say, look, with respect to element two , the plaintiff has no evidence that the defendant knew that the driver was an unlicensed, incompetent, or reckless driver. Point to the empty box. The defendant's merely pointing at that empty box is in contrast to say, requiring the defendant to prove or to demonstrate something themselves prior to celotex. For example, many judges would've said Pointing is not enough. You need to prove the negative. You need to offer evidence of your own defendant that shows that you did not know that the driver was unlicensed, incompetent, or reckless. Cellex relieved defendants of proving the negative as it were. Instead, you just point at what you think is a deficient element of the plaintiff's case and it's up to plaintiff to scurry about to show the evidence that is in that identified box. The second case in the trilogy, mat Sushi cite and use this case when the evidence in the box is not credible or of course if it's arguably not, not credible. Now in the mat sushi case itself, it was expert testimony that if a jury believed that expert testimony, it could have satisfied an element of the plaintiff's case and prevented a summary judgment. But the court said you can't defeat a summary judgment if the only evidence in the box is something that no reasonable fact finder would find credible. So if it's an expert with cockamamie theories or if it's an eyewitness whose testimony is absurd, Matt Sushi is your case to disregard that evidence. Now of course the fight here is who gets to decide whether a theory is cockamamie or whether testimony is truly absurd because remember that on the summary judgment motion, we're not supposed to be weighing evidence that would be a mistake. But that's tricky here because determining credibility is a species of weighing evidence. Yet Matt Sushi sits here as part of our doctrine. Mat Suda can be easily misused or abused by a judge or an exam taker who uses it to weigh evidence and to convert summary judgment into something that it is not supposed to be. There are fact patterns where you could see why we need something like the Matt Sushi case to erase evidence from a box, the Matt Sushi eraser. Sometimes the evidence in the box could be truly preposterous. Imagine for example that that one of the elements of the plaintiff's case is to prove that the defendant was speeding. And imagine that the only evidence that the defendant was speeding is an eyewitness who was half a mile away from the scene and is blind and is elderly and was distracted because they were also tending to their granddaughter. Well, if that's the only evidence in the box, well that's surely the equivalent of having no evidence at all. But once we open up the possibility for judges to start erasing evidence they find not credible using that mat sushi eraser, well now the camel's nose is under the tent and we end up with fights at the margins. And when you are engaged in those fights about whether certain evidence can be discarded because it is so lacking in credibility in those circumstances, you want to cite Matt Shida because that's the case that gave you license to do that. The third case in the summary judgment trilogy is Liberty Lobby. You should only mention this case on an exam or in practice if you're dealing with a cause of action where the standard or burden of proof at trial is something out of the ordinary, that's the only time Liberty Lobby should be invoked. The ordinary standard or burden of proof for civil actions at trial is preponderance of the the evidence that's our default. And if nobody mentions burden of proof, that's the presumptive burden of proof at trial, preponderance of the evidence. But occasionally there is a higher standard, something like clear and convincing evidence on this particular element, the plaintiff must offer clear and convincing evidence of such and such. That was the situation in Liberty Lobby where the cause of action was liable and the plaintiff's burden at trial was to prove something not merely by a preponderance of the evidence but rather with clear and convincing evidence. That's unusual. And so the issue in Liberty Lobby and the only reason we cited on our exam is how to deal at the summary judgment stage with the fact that there will be a higher standard of proof at trial. Now, many of us thought that the standard of proof at trial would be irrelevant at the summary judgment stage because the plaintiff isn't proving anything at the summary judgment stage. Other than that they have enough evidence such that a reasonable jury could find for them. But we were wrong in making that assumption because Liberty Lobby says that in evaluating whether a reasonable jury could find for the plaintiffs, the standard of proof at trial is something that can be taken into account. In other words, you could have a fact pattern where summary judgment for the defendant would be inappropriate if the standard of proof required plaintiff to prove an element by a preponderance of the evidence, but appropriate if the standard of proof required plaintiff to prove an element by clear and convincing evidence. Some of us get some indigestion trying to reconcile Liberty lobby with the Orthodox view that summary judgment is not supposed to be about weighing evidence, but Liberty Lobby tells judges in circumstances where there is a higher burden of proof at trial, that higher standard can affect the evidence that needs to be in the box in order to survive the summary judgment review. Finally, three quick tips when addressing summary judgment questions. Number one, be obsessive about the precise scope of each element. The virtue of isolating these elements into these matrices or tables is that it forces you to get precise about what the element is. If the element requires written notice of something or if the element requires physical injury, or imagine that the element requires extreme and outrageous behavior or if the element requires unauthorized use, or if the element requires that the defendant knew that the driver was unlicensed, negligent, or reckless. The point of these is that whatever the element is, the boundaries of that element are going to be important and it's gonna be in one party's interest to expand those boundaries or distort them or to reframe them, and it's gonna be in another party's interest to police those boundaries vigilantly. And even when we're the party subtly expanding or distorting or reframing those priorities, we want to know that we're doing something that we may not be able to get away with when the other party or the judge is more precise than we about policing exactly what the boundary of that element is. Tip number two, when you are the movement for summary judgment, one trick is to identify conspicuously absent evidence. I like to do this because even when the plaintiff has a bunch of evidence in the box and it looks like a summary judgment is a little hopeless, you can oftentimes argue something like no reasonable jury could find that element satisfied without evidence of X. So the trick is to identify conspicuously absent evidence and leverage that into a broader conclusion about the deficiency of the plaintiff's evidence with respect to that element. Finally, tip number three, this one's for non nts . The tip here is simply to encourage a very sober assessment by the court. A summary judgment should be an extraordinary remedy. You are being denied the right to present this case to a jury based upon some tentative summary assessment of the evidence that would be presented at trial. This is a prediction. The judge should enter a judgment on a prediction only if it's absolutely certain that the plaintiff will lose. And how often can we be sure that that's the case given the vagaries of witnesses and what they will say at trial and who would sit on a jury and how the case would actually unfold given surprising admissions and uncertain details? Surely we should err on the side of denying summary judgments in all close cases. That's tip number three. And that concludes this episode of the Civil Procedure Podcast. Thank you for your attention on this topic, summary judgment in practice, and have a good day .