Veteran trial and appellate lawyer Lynne Liberato gave Law Center students a primer on filing for summary judgment – and cautioned them not to dismiss the action as a perfunctory part of their trial work.
Liberato was the latest expert to visit the Law Center as part of the continuing Blakely Advocacy Institute Trial Lawyer’s Craft Speaker Series. The Haynes and Boone LLP partner defined summary judgment as a way of presenting a case without having to take it to a jury. “If the evidence is agreed upon, there is no sense going to a jury,” she said. “The jury decides the facts and the judge decides the law. The summary judgment says we don’t need to worry about the facts – we either know them or the other side has not shown them.”
The implications of winning a summary judgment are clear: it avoids the uncertainty of a jury verdict, and it avoids the time and expense associated with a long trial. But many judges are disinclined to grant a summary judgment, she said, because they believe it best to “let the jury decide.”
But Liberato counseled students not to be deterred from filing a motion for summary judgment. “It’s a big part of the strategy” and – potentially – a great trial maneuver. For example, she said, it can amount to “cheap discovery” as a means of learning about an opponent’s case as he or she presents evidence trying to show how the case involves questions of fact. The summary judgment motion can also be used to affect the timing of a case, and since most summary judgments involve business-to-business disputes, she said, both time and money can become major considerations. Lastly, she noted how summary judgment motions can be used to educate judges – many of whom don’t read all the case documents and are unfamiliar with the details. “Nothing is black and white,” Liberato said. “Everything is shades of gray, including a summary judgment.”
The former State Bar of Texas and Houston Bar president explained the two types of summary judgments: Traditional and No-Evidence. The first simply means there is “no material issue of facts.” The second, she said, is very defense oriented and switches the burden of proof to the plaintiff who must show enough evidence-of-fact issues to take the case to a jury. “That’s not always easy,” she said, and it can provoke a “battle of the experts” as both sides gear up with expert witnesses.
Liberato confessed that she had enough material for a two-hour talk, but quickly condensed her material to fit the lunchtime setting. She moved speedily through filing deadlines, tips on court reporters and other “dos and don’ts” before concluding her talk with a cartoon slide showing a judge admonishing an obviously unsuccessful lawyer with the words: “Don’t go whining to a higher court!” Liberato looked up at her audience of future advocates, smiled expansively, and shared a rejoinder based on her years as an appellate lawyer: “But that’s our job, right?” she asked – and her audience nodded in the affirmative.