How to Draft a Motion for Summary Judgment

The standard: no genuine dispute of material fact

A motion for summary judgment (MSJ) asks the court to decide the case — or specific claims — without trial because, as Federal Rule of Civil Procedure 56(a) puts it, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Most states mirror this standard (California CCP § 437c, New York CPLR § 3212, Texas Rule 166a, and so on). The two words that do all the work are genuine and material: a fact is material if it could affect the outcome under the governing substantive law, and a dispute is genuine only if a reasonable jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

The moving party bears the initial burden. Under Celotex Corp. v. Catrett, 477 U.S. 317 (1986), a defendant-movant can meet that burden either by producing evidence that negates an essential element of the plaintiff's claim or by pointing out that the plaintiff — who bears the trial burden — has failed to produce evidence sufficient to establish an essential element. Only after the movant carries its initial burden does the non-movant have to come forward with specific, admissible evidence showing a triable issue.

Timing and the local rules

Federal MSJs must be filed within 30 days after the close of discovery unless the court orders otherwise (Fed. R. Civ. P. 56(b)). Most state courts have their own deadline plus a service-and-hearing runway that is stricter than a typical motion — California, for example, requires 75 days' notice before the hearing under CCP § 437c(a). Confirm three deadlines before you draft: the scheduling-order MSJ cutoff, the local-rule notice period, and the court's separate deadline for the moving papers, opposition, and reply.

Check local rules for page limits (federal districts typically cap the brief at 25 pages), font and spacing requirements, and whether the court requires a separate statement of undisputed material facts. California, Arizona, and several federal districts do require a separate statement — omitting it is a common summary-denial ground.

The structural pieces of a motion for summary judgment

A complete MSJ typically has eight components:

1. Notice of motion — hearing date, time, department, and the relief requested.
2. Memorandum of points and authorities — legal argument tied to the standard, organized claim-by-claim (or element-by-element for a partial MSJ).
3. Separate statement of undisputed material facts — a numbered table listing each material fact and the specific evidence supporting it. Every fact needs a citation to a declaration, deposition transcript, admission, or authenticated exhibit.
4. Supporting declarations — sworn statements by percipient witnesses or the custodian of records authenticating documents. Declarations must be on personal knowledge, admissible at trial, and specific — conclusory declarations are routinely disregarded.
5. Request for judicial notice — for court records, statutes, and other facts within the narrow scope of Federal Rule of Evidence 201 or the state analogue.
6. Compendium of evidence — the deposition excerpts, discovery responses, and exhibits cited in the separate statement, tabbed and indexed.
7. Proposed order and, in many jurisdictions, a proposed judgment.
8. Proof of service.

Drafting the memorandum

Lead with a one-paragraph introduction that tells the court exactly what you want and why the record compels it. Then dedicate a section to the summary-judgment standard, one to the undisputed facts (with citations to the separate statement, not the record), and one legal-argument section per cause of action or affirmative defense. For each claim, list the elements the non-movant must prove, then walk through why the record cannot support one or more of them.

Two drafting habits separate MSJs that get granted from those that get denied on the papers:

• Argue elements, not narrative. Judges deciding an MSJ want to know which specific element fails and why the record cannot support it. A chronological story invites the court to find disputed inferences.
• Draw every inference in the non-movant's favor and still win. Under Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574 (1986), the court must view the evidence in the light most favorable to the non-movant. Concede that framing on the page, then explain why the claim still fails as a matter of law.

Evidence and the separate statement

The separate statement is often the make-or-break document. Every listed fact must be (1) material, (2) supported by admissible evidence, and (3) cited to a specific page and line — not a whole deposition. Padding the statement with obvious background facts dilutes your best evidence and invites the opponent to concede those and dispute only the material ones. Keep the statement tight: 15–30 well-sourced facts usually beats 120 general ones.

Anticipate evidentiary objections. Hearsay, lack of foundation, and improper opinion testimony all render evidence non-cognizable on summary judgment. If a key fact depends on a document, attach the document as an exhibit to a declaration by someone who can authenticate it under Federal Rule of Evidence 901 or the state analogue.

Partial summary judgment and summary adjudication

Rule 56(a) authorizes summary judgment "on part of each claim or defense." State analogues vary — some (like California) require an entire claim or affirmative defense to be resolved. A well-targeted partial MSJ can knock out a punitive-damages theory, an affirmative defense, or a duplicative cause of action even when the core dispute must go to trial. Confirm the scope your jurisdiction allows before you invest drafting time.

Common pitfalls that get MSJs denied

• Omitting or shortcutting the separate statement in a jurisdiction that requires it.
• Citing to the record instead of numbered separate-statement facts in the brief.
• Declarations that recite conclusions ("Defendant acted negligently") instead of facts on personal knowledge.
• Relying on inadmissible hearsay or unauthenticated documents.
• Missing an element of the claim in the analysis (the court will assume every element is disputed).
• Failing to address a plausible inference in the non-movant's favor — courts read that as a concession.

The takeaway

A motion for summary judgment is won on structure. Nail the applicable standard, organize the argument element-by-element, tie every material fact to admissible evidence in the separate statement, and give the court a clean path to grant relief. Do that consistently and even a mixed record can produce a narrowed case that settles on your terms.