Summary Judgment in Missouri: Who, What, When, & How

My target audience with this post is law school students and young attorneys tackling a summary judgment for the first time. Experience has shown that seasoned attorneys often forget exactly what it was like to not know how to do something. This is my primer on summary judgment for novices like me. For a more in-depth review of the subject, see Judge H.J. Bush’s article titled “How to Write a Motion for Summary Judgment.”

What is Summary Judgment?
“Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute a right to judgment as a matter of law.” ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc. 1993).
In short, summary judgment is your chance to win your case before going to trial. Like a trial verdict, the judgment is final. However unlike a trial, summary judgment does not involve witnesses, experts, or a jury. Instead, the attorneys present their cases to the judge. The judge decides whether there is dispute of facts that should be decided at a future trial or if she can rule as a matter of law in one party’s favor today.
The standard for summary judgment is when there is “no genuine dispute as to the material facts.” A material fact is a fact that is required to establish your entitlement to recovery or right to an affirmative defense. In Missouri this can easily be established by referring to the Missouri Approved Jury Instructions (MAI).

“The record is viewed in the light most favorable to the non-movant.” ITT Commercial at 382. Thus summary judgment is not a place for credibility determinations as the non-moving party will always be given the benefit of the doubt. Id. For this reason, the majority of motions for summary judgment will fail. However, summary judgment is a very powerful tool for ending frivolous law suits.

Who can seek summary judgment?

Any party in a lawsuit. According to Rule 74.04 the movant is called the “claimant” and the responding party is the “defending party.”

When can you file a motion for summary judgment?
According to 74.04(a), the Claimant must wait 30 days after the commencement of an action before filing a motion for summary judgment. Any time after that, the claimant can file. According to 74.04(b), after a summary judgment has been sought against the “defending party,” it can respond with its own motion for summary judgment at any time.

Clearly the benefit of filing a motion for summary judgment early on in a case is to save money and to get the case resolved as quickly as possible.

Other timing considerations

The response in opposition to summary judgment is due within 30 days after service of a summary judgment motion. 74.04(c)(2). Reply briefs are due within 15 days after service of the response. 74.04(c)(3). Sur-reply in opposition is due within 15 days after service of the reply. 74.04(c)(4).

How do you file a motion for Summary Judgment?
Rule 74.04(c) provides the answer. A motion for summary judgment includes four parts. First, a statement of uncontroverted material facts. Second, a copy of all competent (admissible as if you were in court) evidence. Third, suggestions in support of motion for summary judgment. This is a separate legal memorandum explaining why summary judgment should be granted. And fourth, a certificate of service.
Typically, motions for summary judgment also include oral arguments. As mentioned above, this hearing consists of the attorney for each party outlining his argument, explaining the facts in light of the law on the subject, and answering the judge’s questions.

Jury Instructions – Missouri Approved Instructions (MAI) – Clean, Dirty, & Converse Instructions

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Missouri Supreme Court rule 70 outlines Missouri’s law on jury instructions. Jury instructions are all important as they provide the framework through which the jury will decide the case.

One aspect of Missouri law that I have come to appreciate is that Missouri has “Missouri Approved Insturctions” (MAI). These are jury instructions that have been approved by the Missouri Supreme Court.  In Missouri there are approved instructions for both civil and criminal cases. The court does not publish the civil MAIs. Instead they are available from private sources such as Westlaw.  Why do I like approved jury instructions? They ensure fairness across jurisdictions and time.
Failure to use an approved jury instruction when it is applicable is an error. According to Supreme Court Rule 70.02(c), the failure’s “prejudicial effect” is “to be judicially determined.” Missouri Appellate courts have little tolerance for failure to use MAI and this will often result in reversible error. Jury instructions have to be submitted and approved by the judge. These jury instructions are often referred to as “dirty jury instructions” because they include an annotation at the bottom of the page noting:  1) the MAI number, 2) the MAI Instruction Name, 3) the Party submitting the instruction. Here is a link to an example (Dirty Jury Instructions). Until the jury instructions are approved by the judge, the instructions numbers should remain blank.
Clean jury instructions are jury instructions that are prepared for the jury. The annotations at the bottom of the dirty jury instructions are removed.  Here is an example (Clean Jury Instructions).
Finally, the defendant can submit converse jury instructions. There are two types of converse instructions. The first is the more traditional converse that highlights an element that the defense believes the plaintiff has failed to prove. In my example (Converse Jury Instruction), the defense wishes to call the jury’s attention to the fact that to be liable, there must be a connection between the defendant’s speeding and the injuries suffered by plaintiff. The other type of converse jury instruction focuses on an affirmative defense. Converse jury instructions are particularly effective for use in closing arguments.

 

Two Pieces of Law School Advice

If you or someone you know is considering law school, here are two pieces of advice. They each share the common theme – with law school, things are not often what they seem.

First, one would think that the cost of tuition would be highly correlated with the quality of the law school. Yet, this is not the case. Consider that the New York Law School is “ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800 a year, it charges more than Harvard.” (NY Times article) And the New York Law School is not alone. Some of the worst offenders include: New England Law (cost: $42,490 per year; starting salary: ~$60,000) Charlotte Law (cost: $38,606 per year; starting salary: $45,000), and Phoenix School of Law (cost: $37,741 per year; starting salary: unknown).

Second, for most courses in law school, your entire grade is based on one final exam. The final is in large part a writing exercise. If you can memorize the law, recognize it on the exam, and express yourself clearly – you’ll do well. Yet, most law school students will be busy most of the semester reading cases and preparing to be called on in class… both activities that can consume massive amounts of time and yet usually have no impact on your final grade. I stumbled upon the Law Essay Exam Writing System (LEEWS). It looks a little old school, yet as a law school student, it really helped me understand how to write a quality law school exam essay answer.

Motor Vehicle Accidents – Recover for damage to vehicle and personal property

In my experience, when a client comes in as a result of a motor vehicle accident, the attorney is concerned with two key figures – the amount of property damage and the amount of personal injury damage. In serious personal injury cases, the bulk of time and effort are focused on the costs associated with the personal injury. This is rightly so as this is where the bulk of the monetary damages usually are.

However, in less serious cases, where the primary damages are associated with property damages here’s something to consider. Most insurance policies define property damages as “physical damage to or destruction of tangible property, including loss of use of this property.” Lampert v. State Farm Fire and Cas. Co., 85 S.W.3d 90, 92 (Mo. App. E. Dist. 2002). This could include damage to a car stereo, clothing, or jewelry (including eye glasses).
The damaged items would be valued at “Actual Cash Value” (ACV). ACV is the equivalent of fair market value for an item in a similar condition. This follows the general guiding principle of damages, to make the injured party whole.

Disclaimer

A few disclaimers:

First, the choice of a lawyer is an important decision and should not be based solely upon advertisements.

Second, if you email me or make a comment on this blog, that in no way creates an attorney-client relationship.

Third, the information I post here is for information purposes. It is written to the best of my knowledge. However, if may become outdated or may even be imperfect at the time of writing. If you need legal advice, talk to an attorney.