Is there a reason why big firms automatically file MSJ even in cases where there are clearly triable issues? Are they being used as bargaining chips? This always confused me.

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Because they can bill for it and because it sometimes works. Also, there are a surprisingly large number of plaintiffs who file suit but never bother to really move forward much with them.

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Yes this. We won a summary judgment motion bc plaintiff didnt feel like paying and taking the time to oppose it. In another we didnt win, but our brief made very clear that we would win at trial, so Plaintiffs attorney agreed to settle for significantly less that he would prior to our filing. A lot of plaintiffs firms churn out complaints but then dont make a lot of effort to move their cases forward and MSJs can highlight that

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It often makes the other side show their cards too, even if it loses.

likesmart

I didn't even think about this, but now it seems obvious. thanks for the insight!

I really wish judges would entertain MSJ for family law issues, but they never do even with clearly legal issues (contract interpretation)...

Posturing

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To elaborate - to frame the issues for the judge in a favorable light.

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1) Cost benefit of having case dismissed versus cost of the motion. If case is in MMs it’s worth a shot. 2) Other side has to flesh out their specific theories of the case. This can including submitting expert declarations which can give you a head start on expert discovery, 3) put otherwise on defense so they don’t have time to go on offense.

likesmart

This is a great summary of why, even if denied, an MSJ is a good tactic.

As a law clerk, I am routinely drafting denials of MSJs on things that have *patently obvious* disputes of material fact.

I was wondering why so many of these get denied, and it seems like (a) it’s a big billable so helps firm profits, worth a shot; and (b) it helps tease out the opposing side’s theories, setting up for more focused pre-trial motions.

We have to do most of the work in trial prep anyway, MSJ gives me a read on the court and opposing parties positions on the legal issues with a lower penalty for having misunderstood their respective positions.

It really is good practice to go through the step in the process.

smart

It’s a “put up or shut up” moment. It forces the opposing party to finally state what is actually being contested. It can focus the issues for trial.

I rarely look at a MSJ solely as purposed to “win” on the motion, it’s shortsighted. A lot can be learned and it can be motivating toward settlement.

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