Discovery has ended.  You have your documents, depositions have been taken, subpoenas have been answered and now it is time for both sides to make their arguments to the Court.  The summary judgment motion is a motion, typically made by the employer (although employees have been known to make them as well from time to time, especially on FMLA cases) that is filed with the Court asking the Judge to toss the employee’s court case out because the evidence does not show that any reasonable jury could find for the employee.  Basically, the employer asks the Court to say there is no chance at all that the employee could ever win at jury trial based on the evidence in the case. Because this is such a harsh result for the employee if the employer wins (it will end the case and the employee will lose), the standard is high and the employer must show that there are no genuine facts in dispute that support the employee’s claims.  But just because the standard is high, does not mean that courts do not often grant summary judgment to the employer – because they do and a large portion of the time.

In fact, there is a whole lot of research out there suggesting that summary judgment is being unfairly granted to employers in employment cases…but that is a post for another day.  If that happens, the employee can always appeal the decision to the 4th Circuit (located in Richmond, Virginia) but that is a long and hard road.

Procedurally, the employer will file their motion and the employee’s attorney will normally have about 2-3 weeks to file a reply.  These are very in-depth, long, and complicated motions.  Generally, each side will present their argument in a 35-page memo with many accompanying Affidavits, deposition excerpts, etc.  After both sides have had their chance to make their argument, the Court will consider the motions and this normally takes approximately 6 months in South Carolina.  During this 6 month period, nothing will happen and both sides will be patiently waiting for the written decision from the Court.  After the Court renders a decision, if it rules for the employer, the employee’s case is over and she loses.  The end.  However, if the employee is able to defeat summary judgment, the loss is normally catastrophic for the employer who is now faced with a looming jury trial.  Generally, that results in a larger settlement for the employee because the employer will now take the case more seriously.  However, some employers still will not resolve a case after they lose summary judgment and will seek to take the case to the jury.  Employers have a right to do so but at a potential for great loss.  Almost all federal employment statutes provide for attorney’s fees if the employee wins. Employment cases are very expensive to try and employers recognize this.  Also, jury verdict statistics do not lend in the employer’s favor.  In a nutshell, summary judgment will either make or break the employee’s case.  If the employee survives summary judgment, then she is well on her way.