When drafting an MSJ is it better to address the ways that OC might overcome it; or is it better to just generally say why you’re entitled to MSJ and avoid tackling the finer issues that your MSJ presents?

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As the movant on a SJ motion it’s your burden to demonstrate entitlement to judgment. Pointing out weaknesses of the other side’s case won’t work. Save that for your reply to point out why OC’s arguments fail.

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Good question. The answer (like the answer to any legal question, really) is “it depends.” You don’t want to raise every single argument that the other side may raise, because you don’t know for sure what all those arguments will be, and you may actually tip the opposing party off the arguments that they would not of come up with on their own. You’re brief also would be a mess if all it does is say “the law it’s not this and it’s not this it’s not this it’s not this.” So, your main focus should be making your best and most coherent argument about why you win, dealing with the appropriate facts, and citing the appropriate cases. If there is a very obvious response, it might not be a bad idea to raise it in your brief. For example, if you are practicing in a jurisdiction that has no controlling caselaw, but there is an obvious division of opinion among courts from other jurisdictions, you should argue the side that supports your position, and then also explain why that body of law is better than the contrary view, which your opponent is 100% certain to cite. But big picture, the main purpose of your brief is making your argument. Responding to the opposition is the focus of your reply brief and any oral argument The court permits.

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I try to avoid spending much time dealing with opposing arguments in the moving brief unless it’s something that is going to hurt credibility to ignore. For example, if there’s a really obvious or strong response to your moving brief that you absolutely know the other side will make or a case you need to distinguish in some way, it can be helpful (if not critical) to preempt it and take the sting out of it, rather than looking like you were somehow hiding the ball. But that’s a judgment call in each instance.

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Thanks. I agree that attorneys just glossing over critical issues hurts their credibility. I’m not sure if I’m just an over-thinker though and I think I tend to be a better issue spotter than many; so I’m not sure if issues that seem glaring to me are necessarily glaring to most other attorneys/the judges.

I would address, it as it’s before the court and an obvious issue.

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The situation I’m dealing with now is as follows: there are two potential applicable SOL periods that may apply to my case (gen neg. and construction of improvements) with differing triggering events. Under gen neg, SJ would be granted. Under the other, SJ would be granted if the defect is “latent.” A co-D has already filed an MSJ and didn’t address the issue, said the construction SOL applies, and didn’t address how the triggering date is affected/assumed the “latent” triggering event applies. I feel like there’s a chance OC and the judge might miss the issue. But it feels sloppy to me to not address it. Am I wrong to think that?

Great advice. I think I might wait to see how the briefing crystallizes with Co-D’s motion first and then re-evaluate before filing our own

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