As I said in my last blog, a party to a
personal injury lawsuit can ask the judge to grant “summary judgment” in a case. This
rule applies in courts all over Georgia, from Atlanta to Columbus to Macon,
and pretty much everywhere else in the nation as well.
I represent plaintiffs in personal injury lawsuits, and I often explain
to my clients that in a personal injury or car wreck case, the plaintiff
bears the burden of proof. The plaintiff cannot win the lawsuit unless
the plaintiff meets the burden of proof by proving all of the elements
of negligence. If a defendant moves for summary judgment on the plaintiff’s
whole case, and the Court grants it, then the whole case is over for the
plaintiff. The fraud case, the medical malpractice case, the car wreck
case, whatever – is gone entirely. The plaintiff has lost, and the
case is over.
Obviously summary judgment motions are very important, especially to a
plaintiff. So what does your lawyer do when a summary judgment motion
gets filed in your case?
In Georgia, the statute that governs summary judgment motions is
O.C.G.A. § 9-11-56.
Motion and proceedings thereon. The motion shall be served at least 30
days before the time fixed for the hearing. The adverse party prior to
the day of hearing may serve opposing affidavits. The judgment sought
shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law; but
nothing in this Code section shall be construed as denying to any party
the right to trial by jury where there are substantial issues of fact
to be determined. A summary judgment may be rendered on the issue of liability
alone although there is a genuine issue as to the amount of damage.
O.C.G.A. § 9-11-56(c).
The fist step is that one party to the lawsuit – usually the defendant
– files a motion asking the court to grant summary judgment. The
defendant files a thick brief that explains to the court why the defendant
thinks the court should grant summary judgment against the plaintiff.
Your lawyer writes his or her own brief responding to what the defendant
has said. The brief has to offer real evidence that supports your claims.
This process is the same whether you have a premises liability case, a
product liability case, a car accident case, or any other type of negligence
or personal injury lawsuit.
When I am responding to a summary judgment motion filed against my client,
I usually file several different types of evidence. I always cite to depositions
that have been taken in the case. I like to quote right from the deposition.
I also attach affidavits from my clients or from key witnesses who have
not been deposed. In a medical malpractice case, I might file affidavits
from doctors who are my expert witnesses. In a product liability case,
I might file copies of government reports that say that the product is
defective, or that show it has been recalled. In a car wreck case, I might
attach the accident report. My goal is to marshal the evidence that supports
my client’s case.