Summary Judgment Evidence: Recognizing, Introducing, and Curing Evidence in Inadmissible Form

Description

Serious consequences flow from failing to recognize or in underestimating that the evidentiary standards governing summary judgment are not the same as those that govern at trial. Practitioners who conflate these separate standards may keep failing to introduce relevant material, raise meritless objections, routinely develop distorted views of the client's odds at the summary judgment stage, and lose credibility with the court.

When reviewing the evidence at summary judgment, courts are not called upon to determine if the proffered evidence is admissible under the Federal Rules of Evidence. Since 2010, Federal Rule of Civil Procedure 56(c) authorizes federal trial judges to consider any materials in the record at summary judgment unless those materials "cannot be presented in a form that would be admissible in evidence." Essentially, at summary judgment, a court can rely on anything if it is capable of being put into admissible form at trial, which may open up a world of opportunity.

The standard also creates concerns over objecting to material offered by opposing counsel, and many of these issues present in bench trials.

Listen as this premier panel of litigators reviews the difference between evidentiary standards at summary judgment and those at trial, discusses how underestimating those differences can prevent success at summary judgment, and offers strategies for maximizing those differences for the benefit of the client.