Briefs and Beyond: Persuasive Legal Writing by Mary Beth Beazley & Monte Smith

Briefs and Beyond: Persuasive Legal Writing by Mary Beth Beazley & Monte Smith

Author:Mary Beth Beazley & Monte Smith
Language: eng
Format: mobi
Tags: Law, Legal Education, Legal Writing
ISBN: 9781543813913
Publisher: Wolters Kluwer
Published: 2021-01-29T21:00:00+00:00


8.2.3. Your Evidentiary Task at the Summary Judgment Stage

As we have already told you, the lawyer’s goal in opposing a motion for summary judgment is to identify evidence in support of every essential element of the claims as to which the opposing party has moved for summary judgment. To achieve that goal, the lawyer must know what the essential elements are for each of these claims. A checklist is an effective way to keep track of those elements and the evidence that tends to prove them.

Well before a lawyer begins to draft the memorandum in opposition to summary judgment, the lawyer will have conducted the necessary research to identify the essential elements of the contested claims. The careful lawyer will create a checklist of elements to be proved and of the evidence that tends to prove each of those elements. These tasks will often take considerable time. The examination of the evidence, in particular, may take longer than the lawyer would like. In a case that includes multiple lengthy depositions, the lawyer will have to comb through the transcripts looking for every scrap of evidence that tends to prove an essential element of a claim. The lawyer may not have personally conducted or been present for all, or any, of the depositions and, therefore, may have no memory to draw upon in searching for the evidence. When you are in the position of that lawyer, you will allot plenty of time to the search for evidence.

Having completed these tasks, the lawyer will recognize any gaps in the existing evidence. Gaps will be elements for which the lawyer has not identified evidence. If the lawyer has completed the search for evidence with sufficient time remaining to secure affidavits to fill in those gaps, the fact that the existing evidence does not tend to prove every essential element may not be a problem. The lawyer may identify witnesses whose affidavits can stand in for other evidence in support of those elements. Of course, the gap will still be a problem if no identified witness can attest to a necessary fact. The lawyer cannot generate evidence, in the form of an affidavit or in any other form, that does not exist in the mind of any witness.

A checklist that identifies specific evidence for each essential element is an indication that the lawyer is ready to conduct the trial on paper by writing the argument and identifying the evidence in support of that argument. The argument, in this context, is an assertion that evidence supports each element that the plaintiff must prove and the identification of that evidence specifically. The lawyer will tell the court what the evidence tends to prove and then “show” the court the evidence by citing or quoting the specific testimony or exhibits.



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