The defendant files for summary judgment in almost every age discrimination case. To help your client survive this most critical phase of the litigation, you must prepare for the inevitable summary judgment motion from the outset. Experienced employment attorneys rely on these 7 proven summary judgment strategies*:
(1) Insist That the Court Faithfully Adhere To the Principles of Rule 56
Emphasize the correct summary judgment standards in your opposition papers. In particular:
- The moving party has the burden of proof.
- The entire record must be viewed in the light most favorable to the nonmovant (typically plaintiff), who gets the benefit of all inferences. Inferences are critical in discrimination cases, so emphasize this rule in your opposition papers.
- The province of the jury must be respected. It is the jury’s role, not the court’s, to determine the credibility of witnesses, to weigh the evidence, and to draw inferences from the facts.
- There can be no genuine issue as to any material fact in dispute. If there is, the court cannot grant the motion. This is particularly significant in discrimination cases involving pretext, where the inquiry is fact-intensive.
(2) Know Your Local Rules and Strictly Abide by Them
Your local rules will have specific requirements as to the form, content, length, and timing of motions, replies, statements of undisputed facts, affidavits, and supporting documentation. Failure to follow these rules can be fatal to your opposition and result in summary judgment being granted in favor of the defendant.
(3) Insist on Deposing Defendant’s Affiants
Insist on deposing the affiants supporting defendant’s motion for summary judgment if the defendant did not make them available previously, or if the affidavit discloses new information or leads that were outside of earlier discovery. Federal Rule of Civil Procedure 56(f) allows plaintiffs to reopen discovery, but you must follow the dictates of the Rule.
(4) Refute Every “Fact” in Defendant’s Statement of Material Facts
Consider using a chart to present evidence refuting the defendant’s statement of undisputed facts — fact-by-fact and piece-by-piece. This way you will be sure not to miss any holes in the defendant’s or your presentation. Failure to contest each fact with particular evidence will allow the court to accept the defendant’s statement as true and uncontested.
(5) File a Counter-Motion for Summary Judgment
If you agree with the facts, but disagree with the legal conclusion drawn from those facts, consider filing a counter-motion for summary judgment. It likely will catch the defendant by surprise and may crystallize the issues for you and the court.
(6) Consider a Rule 11 Motion for Sanctions
Defense counsel cannot cherry-pick the facts on summary judgment, identifying only those portions of the record that support its position and ignoring known evidence to the contrary. Where appropriate, use Rule 11 to trump the rules of procedure and prevent the defendant from using a motion for summary judgment just to force you to put on your case.
(7) Establish a record for appeal
Establish a clear and comprehensive record at the summary judgment stage to preserve issues for appeal. Appellate courts review a grant of summary judgment de novo and apply the same legal standard used by the district court. If summary judgment is granted, seek appellate review. Furthermore, ask the appellate court to grant summary judgment in your favor, if the evidence supports such a ruling. Rule 56(c) permits a court to grant summary judgment in favor of a party that did not request it, but only upon proper notice to the adverse party.
* Excerpted from Age Discrimination Litigation by L. Steven Platt and Cathy Ventrell-Monsees. Age Discrimination Litigation is a comprehensive practice guide that provides detailed coverage and analysis of the governing law, supported by sample forms for all phases of a case; persuasive model arguments, motions and briefs; and proven strategies for success.
L. Steven Platt currently is a Member of the Chicago office of the law firm of Clark Hill PLC. He has litigated ADEA cases for 35 years. He has tried over 100 cases to verdict in federal district courts and state courts, and has handled cases, appeals and amicus briefs in jurisdictions ranging from California to New York. He is a “Fellow” in the American College of Labor and Employment Lawyers, is listed as a “Leading Lawyer” in the Leading Lawyer’s Network, a “Super Lawyer” in Super Lawyer magazine, and is rated “AV Preeminent” by Martindale-Hubbell. Mr. Platt helped draft the discrimination jury instructions for the Seventh Circuit Court of Appeals. He is a past President of the National Employment Lawyers Association and of Workplace Fairness, and is active in the ABA.
Cathy Ventrell-Monsees has litigated ADEA cases for most of her career, including several ADEA class actions. She has written more than 50 amicus briefs in the U.S. Supreme Court and circuit courts. For thirteen years, she directed the age discrimination litigation project at AARP. She is currently a Senior Attorney Advisor to Chair Jacqueline Berrien, after previously serving as an advisor to Commissioner Stuart Ishimaru, at the Equal Employment Opportunity Commission. She teaches employment discrimination law at the Washington College of Law at American University and frequently appears in the media and at conferences as an expert on age discrimination issues.