Summary judgment is the main topic in Civil Procedure this week, and we're talking about why requests for summary judgment usually come after discovery. Why is that, anyway?
Backing up for a second, a request for summary judgment is essentially a request for the judge to issue a judgment in your favor without a trial. It's appropriate when there are no issues of fact, and where the law is unambiguous. If the other party hasn't proved an essential element of their claim, and there are no facts about the matter for a jury to decide, a summary judgment is appropriate. Since the judge is the legal expert, they can make the call.
Parties usually don't request summary judgment until discovery is over because discovery is about discovering things. After discovery, the facts are established, and it's easier to know if there are issues of material fact that need to be sorted out at trial. If a motion for summary judgment is made prematurely, the other party can claim that there is a genuine factual issue, and that they haven't yet gotten around to deposing the proper witnesses. Maybe they're traveling, or there are other scheduling conflicts, but when they say what they have to say, you'll see that there are issues of fact that have to be decided. So a summary judgment isn't appropriate, because those witnesses have not been deposed.
What made it into my notes when we covered this in class?
Not "witnesses have been deposed," but "witnesses have not been disposed of."
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