Summary Judgment, The Diet. Phase 1

What is summary judgment and why is it a diet?

SJ, as we aficionados call it, is a request one party to a lawsuit — in this case, the plaintiff (this thing is called Sidebar for Plaintiffs) — makes of the judge, usually before trial. In essence, the side filing a summary judgment motion is saying to the judge, “We’ve proven the facts in our case and have a lot of evidence to back up the facts, so there’s no need to go to trial. Here’s a large pile of facts and evidence. Please read it and decide this case in our favor now.”

Yeah, but that’s not the most important aspect of SJ which is: THE DIET.

We plaintiffs can lose quite a bit of weight while working on our SJ affidavits. How? Why? Yes, those are the questions you are asking right now. So let me lay it out for you here — because forget it, I’m not going to publish a Summary Judgment Diet Book. Summary Judgment Diet Post feels about right to me.

Phase One of the SJ Diet

First thing you plaintiffs should know is that the Summary Judgment motion consists of three parts, the most important one of which is yours: your affidavit. Because, as my lawyer said to me, this is your story and you get to tell it.

At this stage, you and your lawyer have completed discovery, i.e., you’ve collected zillions of pages of deposition testimony and documents proving your case. Now, especially if you’re a writer and/or can write coherently you have to write out the facts of your case and link each fact to one or more documents proving the fact. If you are not comfortable writing, you and your lawyer will, as you must have done with the complaint, work together to write the affidavit. (She, in her turn, will write an affirmation and a memorandum of law, but none of these documents has anything to do with the diet so never mind.)

I recently read a summary judgment motion that was fairly meager, because there were not a lot of bad actions the defendants had committed. (What they had done was weird and bad enough, but limited to one central action, repeated quite a few times.) But if you, like me, have lots of wrongful acts and accompanying proofs to lay out, your affidavit — and those links to documents — will take a lot of time.

Writing any story takes obsessive concentration. Putting down a chronology of your facts is a lot of work, even if you’ve pretty much memorized the sweep of events, and have — as I’ve recommended many, many, many, many, many times — maintained an accurate, up-to-date time line.

I’m not sure about you, but when I concentrate so fiercely on a computer screen, and pouring through the documents in my many binders in spurts, I don’t take long breaks. So when I start getting hungry, I can postpone satiation even past the gnaw in my stomach.  I’m sort of saying to my appetite, “Hang on just a minute, just until I finish this one paragraph.”

And of course I’m more or less lying to my stomach which behaves like a kid demanding a couple of cookies but not getting them: it subsides into a easily ignorable sulk. (But then, as we all know, our stomachs lie to us, insisting on being fed more than we need for our satisfaction, let alone survival.)

So. That’s the first phase of the diet. You’re so involved in what you’re writing, your appetite is transferred away from your stomach into your brain, so instead of the sort of pangs you get when you’re “dieting,” i.e., depriving yourself of sustenance, the work becomes your sustenance.

And as anybody who has dieted knows, if you can ignore hunger pangs for a few hours, they disappear. And when you do feed yourself, you are not as hungry as you thought you were.

So you eat less.

Working on a summary judgment affidavit is, like all sorts of storytelling, a powerful distraction from physical needs. You are Sheherazade (minus the scarves and schmattas).

After a couple of weeks, you’ll notice that your sweat pants are sliding down your hips.

To enhance this weight-loss experience, make sure you separate yourself from the computer at least once a day for fast walks, incorporating food-shopping into those walks. This way you’ll be getting exercise while hand-picking lo-cal nutrients for the few occasions when you do eat.

NEXT: Summary Judgment, The Diet. Phase 2.





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