MBE Strategies Tip #6 – Civil Procedure

Answer to Civil Procedure MBE Question:

Common Mistake: Students misunderstand exactly what is needed to prevail in a summary judgment motion.

Subject: Civil Procedure

Legal Issue:Should the court grant the motion for summary judgment?

Legal Rule and Analysis:The court should only grant the motion if there is no genuine dispute as to material fact such that the moving party is entitled to judgment as a matter of law. In this case, there is a genuine issue of material fact (whether or not the woman was credible) and thus the motion should not be granted.   The fact that she did not respond is immaterial since she the employer did not meet his burden to begin with.

Remember that a motion for summary judgment requires a burden-shifting analysis. The movant (the person filing the motion) must first show that there is no genuine issue of material fact. Once that burden is met, then the burden shifts to the non-movant to show that there is some kind of genuine issue of material fact for trial. This can be shown via affidavits, deposition testimony, or other admissible evidence.

If the movant never meets its initial burden, then the burden never shifts to the non-movant and the non-movant prevails regardless of whether they respond. In this case, the movant never met its initial burden.

Conclusion: No, because the affidavit creates a factual dispute as to whether the woman was credible.

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(D) is correct.

(A) is incorrect. Simply because a party files affidavits does not mean there is no genuine issue of material fact. The affidavits must show that there is no genuine issue of material fact (and even then, the nonmoving party may still establish a genuine issue of material fact in its response).

(B) is incorrect because the employee does not need to respond to the motion if the employer did not meet his burden of showing there is no genuine issue of material fact. Only if the moving party (the employer) meets that burden is the nonmoving party (the employee) required to introduce evidence that an issue of material fact exists.

(C) is incorrect because a detailed complaint does not automatically mean that a court cannot enter summary judgment in favor of a party. The court will not look at the pleadings when evaluating whether to grant a motion for summary judgment based on no genuine issue of material fact. Rather, the court will evaluate the evidence that is supplied in conjunction with the motion.

MBE Tip:

What if I am really not sure what the correct answer choice is?

• Eliminate wrong answer choices. Don’t guess until you are sure you’ve eliminated any answer choices you know is incorrect – i.e. one that misstates the law or facts, or asks you to make an assumption you are not qualified to make.
• Eliminate answer choices that sound incorrect. Don’t pick answer choices just because they sound good. For example, answers citing the “privileges and immunities clause of the 14^th Amendment” are oftentimes incorrect. Same with answers the cite the “best evidence rule.”
• Beware of answer choices that are too definite – and use words like “always” “never” “must” etc. There are almost always exceptions so these overly-definite words are, many times, incorrect.
• When in doubt, choose the longest response. These tend to be right because they more precisely state the legal rule. (But of course they are not always right — like in this case, the longest response is not correct!)
• If the above tips don’t help you, then dissect the answer choices to see if they make sense. It is helpful if you can precisely state the law prior to dissecting the answer choices.

Let’s look at the answer choices provided and dissect them:

(A) Yes, because the employer supported its motion with affidavits and demonstrated that there was no genuine issue of material fact for trial. This is too broad. Just because someone provides an affidavit does not mean that the affidavit is “good enough” to support a motion. I could attach any nonsensical or irrelevant affidavit to a motion and I won’t win because of it!
(B) Yes, because the employee failed to respond to the motion. Many students choose this one because they forget the burden-shifting required.  If you were considering this one, step back for a minute and ask yourself “what is the law being tested?” This should help you answer the question correctly.
(C) No, since the employee’s complaint alleged specific facts regarding the harassment. This one does not get to the issue provided. When a motion is filed, the court is going to look at the substance of the motion and the documents attached in support of that motion. The court is not looking at the complaint again.
(D) No, because the affidavits filed by the employer create a factual dispute. This is the correct one! It discusses the motion itself (the affidavit) and gets right to the heart of the matter–that it creates a factual dispute!

Even if you forgot the burden-shifting involved in this kind of motion, you should still be able to eliminate (A) and (C) if you have a general knowledge of motions for summary judgment.