Explanation

HOW TO SUCCESSFULLY APPEAL SUMMARY JUDGMENTS

AT THE LAW OFFICE OF DAVID A. SMYTH

The law requires that the Court of Appeals review the granting of a Summary Judgment motion “de novo” (meaning, anew) with no requirement that the Appellate Justices give any deference at all to the decision of the Superior Court and that they look for a way to set aside the judgment. The Court of Appeals is required to liberally construe the presentation that was made to the Superior Court by the losing party and to strictly construe the presentation made to the Superior Court by the prevailing party. This is because Summary Judgment is a drastic procedure that deprives a person of his/her right to a trial and the right to cross examine witnesses and to have a judge and/or a jury see and hear the witnesses and the evidence and decide who is telling the truth.

A Summary Judgment should only be granted if it is legally impossible for a party to prevail at trial. This means that there is some legal barrier to the party obtaining a verdict, including a situation where no reasonable trier of fact could believe the loser’s evidence. If this standard is not met the Court of Appeals will overturn the Summary Judgment even if it thinks that the party, who lost the Summary Judgment, has very little chance once the case gets to trial. Conversely, the Court of Appeals will uphold a Summary Judgment regardless of how strongly it believes that the losing party’s allegations are true if it also believes that there is a legal barrier to at least one essential element of the losing party’s case.