Summary Judgment by Stealth – How Get By Summary Judgment Without Ever Filing a Motion

So your opponent has decided to seek summary judgment on its affirmative defense against your client. This seems to happen often enough. However, if the defense is not careful in preparing their motion and does not properly support it with evidence, the surprise may be on them.

Indiana Trial Rule 56(B) can reverse the tables on your opponent when they file a motion for summary judgment. Indiana TR 56(B) provides as follows:

(B) For defending party–When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.”

Many attorneys are unaware of this provision. They mistakenly believe that the door can swing only one way… against the plaintiff as the non-moving party. However, this is incorrect. The door swings both ways.

I have used this provision to obtain summary judgment in favor of my client when the defendant moves for summary judgment on their affirmative defense.

A defendant has the burden of production when it comes to an affirmative defense. The plaintiff has no obligation to present any evidence in opposition to the affirmative defense unless and until it has been properly raised by producing evidence that shows the defense was facially valid.

An unsupported motion for summary judgment on an affirmative defense leaves the defendant open to an oral motion for summary judgment in favor of the plaintiff made at the time of hearing. Always wait until the actual hearing to make your motion as it will be too late to correct their mistake.

Next time you confront a defense attorney who fails to properly support their motion for summary judgment on an affirmative defense, do not be afraid to orally move at the hearing for summary judgment in your client’s s favor. If the defense has failed to produce admissible evidence in support of its position, then you are entitled to receive summary judgment. I have won summary judgment on affirmative defenses numerous times by using this tactic to the dismay and surprise of my opponent.

Good luck using this stealthy tactic. They won’t see you coming until it is too late.

About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on July 7, 2021, in Uncategorized. Bookmark the permalink. Leave a comment.

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