From a tactical perspective, there are two basic types of summary-judgment motions. One requires a
full evidentiary presentation, and the other requires only a more limited, targeted one.
First, a plaintiff may seek summary judgment on any cause of action, and similarly, a defendant may seek summary judgment in its favor on any affirmative defense. But in either case, the moving party must produce evidence in support of
each and every essential element of the claim or defense (as it would have to do at trial). To be successful, this type of summary-judgment motion must be drafted as a written preview of a party's entire case-in-chief (that it would put before the finder of fact at trial) because
all parts of an entire claim or defense are at issue.
Second, a different and very common tactic is where a defendant seeks summary judgment on a plaintiff's cause of action. The key difference is that in this latter situation, the defendant need only attack
one essential element of the plaintiff's claim. A finding that the plaintiff cannot prove
one essential element of its claim necessarily renders all other elements immaterial and results in summary judgment for the defendant. So these motions tend to be precisely targeted to the weakest points of the plaintiff's case. It is also possible for a plaintiff to seek summary judgment on a defendant's
affirmative defense, but those types of motions are very rare.
A party seeking summary judgment may refer to any evidence that would be admissible at trial, such as
depositions (or deposition excerpts), party admissions,
affidavits in support from
witnesses, documents received during
discovery (such as
contracts,
emails,
letters, and certified government documents). The evidences should be accompanied by a declaration from the moving party that all copies of the documents are true and correct, including deposition excerpts. Each party may present to the court its view of applicable law by submitting a
legal memorandum supporting, or opposing, the motion. The opposing party may also file its own summary-judgment motion (called a "cross-motion"), if deadline still allows. The court may allow for
oral argument of the
lawyers, generally where the judge wishes to question the lawyers on issues in the case.
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