Genuine Issues of Material Fact

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ConfusedL1
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Re: Genuine Issues of Material Fact

Postby ConfusedL1 » Mon Apr 13, 2015 6:14 pm

AreJay711 wrote:
ConfusedL1 wrote:
BVest wrote:The Slaven case hinged on whether the city "knew or should have known" that the man in jail was suicidal, thus creating a duty to monitor. It's not intent, but that's another one of those hard-to-prove issues like intent. I think that grant of summary judgment was upheld though.



I looked for the appellant brief but couldn't find it. Would be really interesting to see how they framed it.

On a related issue, if you're fighting a MSJ, is what you can use to show genuine fact dependent on the legal test provided?

For example, can you oppose saying both "there is a factual dispute here the judge didn't consider. X says Y knew. Y says she didn't. They're disagreeing." AND also say "btw, the case law says evidence of intent can be shown by timing...there's a timing issue right here that, even though the two parties agree factually that it happened (i.e. don't dispute its occurrence), is evidence supporting intent the trial judge missed"


Yeah, you got it. If it was something in consequential to the case, then its not a material fact.

In your example, you wouldn't need the actual disagreement. In the pleadings it would be clear that the defendant didn't agree on the intent. It would be valid to argue it solely based on the permissible inference that the fact finder could make. Really the question is: "Is there enough here to indicate that there will be something for the jury / fact finder to determine by the end of this thing?"


I guess my question more gets at "this is something the judge failed to consider in their opinion that leads to a reasonable inference" and less "the parties disagree about this."

If the judge straight up ignores a fact material to P's case in their opinion (some evidentiary basis for a reasonable inference like a repeated history that P/D agree happened but D isn't that concerned with and P feels is a strong indicator of intent), what is that called? Just not meeting the requirements to show D was entitled to a judgment as a matter of law? It doesn´t seem to fit the "genuine issue of material fact" description

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AreJay711
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Re: Genuine Issues of Material Fact

Postby AreJay711 » Mon Apr 13, 2015 6:49 pm

ConfusedL1 wrote:
I guess my question more gets at "this is something the judge failed to consider in their opinion that leads to a reasonable inference" and less "the parties disagree about this."

If the judge straight up ignores a fact material to P's case in their opinion (some evidentiary basis for a reasonable inference like a repeated history that P/D agree happened but D isn't that concerned with and P feels is a strong indicator of intent), what is that called? Just not meeting the requirements to show D was entitled to a judgment as a matter of law? It doesn´t seem to fit the "genuine issue of material fact" description


The party disagreed with the underlying conduct that the inference is being used to prove in the pleadings. So say discriminatory intent, if that's the example. The defendant is saying that there is no discriminatory intent. The plaintiff is saying that the totality of the conduct is enough for a reasonable fact finder to potentially determine there was a discriminatory intent (since it's not a mandatory inference). The issue of material fact is whether there was discriminatory intent.

If the trial judge grants summary judgement for the defendant, what he's (yeah, he's a man, deal with it) saying is that the evidence wasn't sufficient to support the inference of discriminatory intent. He's essentially saying the issue wasn't genuine, if you want to fit it in with the term. That's a legal determination, so you can appeal.

On appeal, the plaintiff is going to want to point to the genuine issue(s) that exists. So it would be trying to show why a reasonable jury could infer discrimination from the totality of the conduct. There are probably cases. The appellate judges decide if it is sufficient. You don't need to call it anything. You just say it was ignored / wrongly evaluated.

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A. Nony Mouse
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Re: Genuine Issues of Material Fact

Postby A. Nony Mouse » Mon Apr 13, 2015 7:23 pm

I mean, if the trial court flat out ignored legitimate evidence that was submitted properly in a timely fashion - like, just left it out of the analysis altogether - that would be error. But that doesn't really happen. It will be what AreJay describes. It's really a legal dispute over whether the trial court was correct to find the evidence insufficient to prove intent, bc no reasonavle juror could infer intent from that evidence. (You've said the parties agree that the evidence exists, just that P thinks it means intent and D says it's not that important.)

ConfusedL1
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Re: Genuine Issues of Material Fact

Postby ConfusedL1 » Mon Apr 13, 2015 9:10 pm

A. Nony Mouse wrote:I mean, if the trial court flat out ignored legitimate evidence that was submitted properly in a timely fashion - like, just left it out of the analysis altogether - that would be error. But that doesn't really happen. It will be what AreJay describes. It's really a legal dispute over whether the trial court was correct to find the evidence insufficient to prove intent, bc no reasonavle juror could infer intent from that evidence. (You've said the parties agree that the evidence exists, just that P thinks it means intent and D says it's not that important.)


so how does that analysis so? Essentially you say, "judge considered x,y,z and didn't even mention a and b. X, y, and z are super important and he looked at them wrong, and a and b are worth a look because blah blah. Oh btw here's some analogous case law" ?

ConfusedL1
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Re: Genuine Issues of Material Fact

Postby ConfusedL1 » Mon Apr 13, 2015 9:13 pm

AreJay711 wrote:
ConfusedL1 wrote:
I guess my question more gets at "this is something the judge failed to consider in their opinion that leads to a reasonable inference" and less "the parties disagree about this."

If the judge straight up ignores a fact material to P's case in their opinion (some evidentiary basis for a reasonable inference like a repeated history that P/D agree happened but D isn't that concerned with and P feels is a strong indicator of intent), what is that called? Just not meeting the requirements to show D was entitled to a judgment as a matter of law? It doesn´t seem to fit the "genuine issue of material fact" description


The party disagreed with the underlying conduct that the inference is being used to prove in the pleadings. So say discriminatory intent, if that's the example. The defendant is saying that there is no discriminatory intent. The plaintiff is saying that the totality of the conduct is enough for a reasonable fact finder to potentially determine there was a discriminatory intent (since it's not a mandatory inference). The issue of material fact is whether there was discriminatory intent.

If the trial judge grants summary judgement for the defendant, what he's (yeah, he's a man, deal with it) saying is that the evidence wasn't sufficient to support the inference of discriminatory intent. He's essentially saying the issue wasn't genuine, if you want to fit it in with the term. That's a legal determination, so you can appeal.

On appeal, the plaintiff is going to want to point to the genuine issue(s) that exists. So it would be trying to show why a reasonable jury could infer discrimination from the totality of the conduct. There are probably cases. The appellate judges decide if it is sufficient. You don't need to call it anything. You just say it was ignored / wrongly evaluated.


Can the plaintiff use the whole record to do that? Like, make arguments that don't even consider Ps point of view, but really just attack why a jury would doubt D's testimony? Using the discrimination example, saying "Oh come on look at the history here! It's certainly relevant to whether an inference could be made in this instance" (let's assume evidence clear from D testimony that he does have a history)

ConfusedL1
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Re: Genuine Issues of Material Fact

Postby ConfusedL1 » Tue Apr 14, 2015 11:13 pm

ConfusedL1 wrote:
AreJay711 wrote:
ConfusedL1 wrote:
I guess my question more gets at "this is something the judge failed to consider in their opinion that leads to a reasonable inference" and less "the parties disagree about this."

If the judge straight up ignores a fact material to P's case in their opinion (some evidentiary basis for a reasonable inference like a repeated history that P/D agree happened but D isn't that concerned with and P feels is a strong indicator of intent), what is that called? Just not meeting the requirements to show D was entitled to a judgment as a matter of law? It doesn´t seem to fit the "genuine issue of material fact" description


The party disagreed with the underlying conduct that the inference is being used to prove in the pleadings. So say discriminatory intent, if that's the example. The defendant is saying that there is no discriminatory intent. The plaintiff is saying that the totality of the conduct is enough for a reasonable fact finder to potentially determine there was a discriminatory intent (since it's not a mandatory inference). The issue of material fact is whether there was discriminatory intent.

If the trial judge grants summary judgement for the defendant, what he's (yeah, he's a man, deal with it) saying is that the evidence wasn't sufficient to support the inference of discriminatory intent. He's essentially saying the issue wasn't genuine, if you want to fit it in with the term. That's a legal determination, so you can appeal.

On appeal, the plaintiff is going to want to point to the genuine issue(s) that exists. So it would be trying to show why a reasonable jury could infer discrimination from the totality of the conduct. There are probably cases. The appellate judges decide if it is sufficient. You don't need to call it anything. You just say it was ignored / wrongly evaluated.


Can the plaintiff use the whole record to do that? Like, make arguments that don't even consider Ps point of view, but really just attack why a jury would doubt D's testimony? Using the discrimination example, saying "Oh come on look at the history here! It's certainly relevant to whether an inference could be made in this instance" (let's assume evidence clear from D testimony that he does have a history)


I want to reformulate this a bit:

In appealing a SJM by saying reasonable inferences can be made in favor of the non-moving party, can you use the moving party's evidence against them to weaken the inference they support? Does that necessarily make your inference more likely? Or, does this tactic not matter because you really need to show more support for your OWN inference, not attack some one else's.

E.g. Explaining in your appeal to a granted SJM against your discrimination claim that, among other things, counters your opponent by arguing that part of his case is supported by weak/incomplete evidence. Undermining this evidence would would make an inference LESS likely to be reasonably found for their side (discrimination didn't happen or was justified), but does that necessarily help yours?

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alphasteve
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Re: Genuine Issues of Material Fact

Postby alphasteve » Wed Apr 15, 2015 9:59 am

ConfusedL1 wrote:
I want to reformulate this a bit:

In appealing a SJM by saying reasonable inferences can be made in favor of the non-moving party, can you use the moving party's evidence against them to weaken the inference they support? Does that necessarily make your inference more likely? Or, does this tactic not matter because you really need to show more support for your OWN inference, not attack some one else's.

E.g. Explaining in your appeal to a granted SJM against your discrimination claim that, among other things, counters your opponent by arguing that part of his case is supported by weak/incomplete evidence. Undermining this evidence would would make an inference LESS likely to be reasonably found for their side (discrimination didn't happen or was justified), but does that necessarily help yours?


You can use any 56(c)(1) evidence to support your position. If you think the movant has proffered evidence and interpreted it one way, but you think a different interpretation is more logical and either supports your position or undermines theirs, you can advance it. Really, this is too abstract still to even be a solid question because it is heavily fact dependent.

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Emma.
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Re: Genuine Issues of Material Fact

Postby Emma. » Wed Apr 15, 2015 10:37 am

ConfusedL1 wrote:
A. Nony Mouse wrote:I mean, if the trial court flat out ignored legitimate evidence that was submitted properly in a timely fashion - like, just left it out of the analysis altogether - that would be error. But that doesn't really happen. It will be what AreJay describes. It's really a legal dispute over whether the trial court was correct to find the evidence insufficient to prove intent, bc no reasonavle juror could infer intent from that evidence. (You've said the parties agree that the evidence exists, just that P thinks it means intent and D says it's not that important.)


so how does that analysis so? Essentially you say, "judge considered x,y,z and didn't even mention a and b. X, y, and z are super important and he looked at them wrong, and a and b are worth a look because blah blah. Oh btw here's some analogous case law" ?


At least in my circuit, the case law is clear that the judge is only required to consider the evidence that is properly cited in the party's motion. The Court doesn't have to comb through the whole record looking for things that could lead to a factual dispute. This means it isn't likely that there will be some important fact issue that the judge just ignores; the parties will have identified what they see as the important issues. But remember also that SJ is reviewed de novo, so on appeal it doesn't really matter what the trial judge did. The appellate court is just going to look at the evidence presented to the trial court and come to its own conclusion about whether SJ was warranted.
Last edited by Emma. on Wed Apr 15, 2015 12:33 pm, edited 1 time in total.

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encore1101
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Re: Genuine Issues of Material Fact

Postby encore1101 » Wed Apr 15, 2015 10:48 am

ConfusedL1 wrote:
ConfusedL1 wrote:
AreJay711 wrote:
ConfusedL1 wrote:
I guess my question more gets at "this is something the judge failed to consider in their opinion that leads to a reasonable inference" and less "the parties disagree about this."

If the judge straight up ignores a fact material to P's case in their opinion (some evidentiary basis for a reasonable inference like a repeated history that P/D agree happened but D isn't that concerned with and P feels is a strong indicator of intent), what is that called? Just not meeting the requirements to show D was entitled to a judgment as a matter of law? It doesn´t seem to fit the "genuine issue of material fact" description


The party disagreed with the underlying conduct that the inference is being used to prove in the pleadings. So say discriminatory intent, if that's the example. The defendant is saying that there is no discriminatory intent. The plaintiff is saying that the totality of the conduct is enough for a reasonable fact finder to potentially determine there was a discriminatory intent (since it's not a mandatory inference). The issue of material fact is whether there was discriminatory intent.

If the trial judge grants summary judgement for the defendant, what he's (yeah, he's a man, deal with it) saying is that the evidence wasn't sufficient to support the inference of discriminatory intent. He's essentially saying the issue wasn't genuine, if you want to fit it in with the term. That's a legal determination, so you can appeal.

On appeal, the plaintiff is going to want to point to the genuine issue(s) that exists. So it would be trying to show why a reasonable jury could infer discrimination from the totality of the conduct. There are probably cases. The appellate judges decide if it is sufficient. You don't need to call it anything. You just say it was ignored / wrongly evaluated.


Can the plaintiff use the whole record to do that? Like, make arguments that don't even consider Ps point of view, but really just attack why a jury would doubt D's testimony? Using the discrimination example, saying "Oh come on look at the history here! It's certainly relevant to whether an inference could be made in this instance" (let's assume evidence clear from D testimony that he does have a history)


I want to reformulate this a bit:

In appealing a SJM by saying reasonable inferences can be made in favor of the non-moving party, can you use the moving party's evidence against them to weaken the inference they support? Does that necessarily make your inference more likely? Or, does this tactic not matter because you really need to show more support for your OWN inference, not attack some one else's.

E.g. Explaining in your appeal to a granted SJM against your discrimination claim that, among other things, counters your opponent by arguing that part of his case is supported by weak/incomplete evidence. Undermining this evidence would would make an inference LESS likely to be reasonably found for their side (discrimination didn't happen or was justified), but does that necessarily help yours?



Okay, first of all, you wouldn't appeal a grant of a SJM by saying reasonable inferences can be made in favor of the nonmoving party.

The proper standard is-- all evidence is viewed in light most favorable to the nonmoving party, there is no genuine issue of material fact.

That means that you don't, and shouldn't, argue that a reasonable inference can be made in favor of the nonmoving party. The standard for SJ already takes care of that. You'd be wasting time if you appealed a SJ by arguing that reasonable inferences can be drawn in favor of the nonmoving party.

Summary judgment is, essentially -- "Even assuming that everything (the nonmoving party) says is true, I'm still entitled to judgment as a matter of law because he does not dispute any of the material facts."

edit: and this is going way beyond what you should know as a 1L for civpro. I think you're just confusing yourself by overthinking this and trying to contextualize this without a proper foundation.

Edit2: to be clear, this is a separate question from whether a reasonable jury could find in favor of the non moving party. One is the standard to be applied, while the other is the question to be answered. rereading your question, it seems like you're asking about what a reasonable jury could infer, but going back to my first edit, I think you're confusing yourself, and us, by overthinking this. This mix up of vocabulary is one example.
Last edited by encore1101 on Wed Apr 15, 2015 11:38 am, edited 1 time in total.

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AreJay711
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Re: Genuine Issues of Material Fact

Postby AreJay711 » Wed Apr 15, 2015 10:59 am

As the plaintiff, you would usually need to show that your own inference is a possibility, but it depends on the initial burdens and whether they shift. The plaintiff typically has the burden of production and proof (and hence there is a presumption in favor of the defendant), meaning the plaintiff needs to put together an affirmative showing. This can be through direct evidence, some brand of res ipsa loquitur, or circumstantial evidence. At trial, the defendant just needs to put together evidence that makes the plaintiff's theory unlikely, rather than actually prove by preponderance that something else happened. Plaintiff is trying to show X, while defendant is trying to show ~X, which could be any number of other things (e.g. the indicators of X are not present, Y is more likely than X, etc.). Attacking the defendant's evidence is not going to be effective on appeal, absent sufficient evidence for the fact finder to accept a theory for which relief could be granted to the plaintiff, because the defendant didn't need to produce or prove anything.

A defendant appealing a grant of summary judgement in favor of the plaintiff could effectively attack the plaintiff's evidence on appeal without presenting a plausible alternative. For a plaintiff with the burden of production and persuasion to prevail, he would have to show that his theory was the only thing the evidence could support. The fact finder could come to no other reasonable decision. By attacking the evidence, the defendant would be arguing that the fact finder could find the evidence supporting the plaintiff should be found lacking credibility or not sufficient to prove the elements of the action by a preponderance of the evidence.

In discrimination cases, the burdens of proof do often shift. In some discrimination cases, once the plaintiff makes a certain initial showing (the burden of production), the burden of persuasion shifts to the defendant to explain why the conduct wasn't illegally discriminatory. It will be up to the defendant to propose an alternative to rebut this presumption. In such a case, SJ isn't appropriate unless there is no rational way that a jury could refuse to accept the non-discriminatory reasons proposed by the the defendant. Attacking the evidence of the moving party would be effective in such a case. (From my soapbox: This is why creating new causes of action for varying types discrimination is tricky business.)

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encore1101
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Re: Genuine Issues of Material Fact

Postby encore1101 » Wed Apr 15, 2015 11:10 am

AreJay711 wrote:As the plaintiff, you would usually need to show that your own inference is a possibility, but it depends on the initial burdens and whether they shift. The plaintiff typically has the burden of production and proof (and hence there is a presumption in favor of the defendant), meaning the plaintiff needs to put together an affirmative showing. This can be through direct evidence, some brand of res ipsa loquitur, or circumstantial evidence. At trial, the defendant just needs to put together evidence that makes the plaintiff's theory unlikely, rather than actually prove by preponderance that something else happened. Plaintiff is trying to show X, while defendant is trying to show ~X, which could be any number of other things (e.g. the indicators of X are not present, Y is more likely than X, etc.). Attacking the defendant's evidence is not going to be effective on appeal, absent sufficient evidence for the fact finder to accept a theory for which relief could be granted to the plaintiff, because the defendant didn't need to produce or prove anything.

A defendant appealing a grant of summary judgement in favor of the plaintiff could effectively attack the plaintiff's evidence on appeal without presenting a plausible alternative. For a plaintiff with the burden of production and persuasion to prevail, he would have to show that his theory was the only thing the evidence could support. The fact finder could come to no other reasonable decision. By attacking the evidence, the defendant would be arguing that the fact finder could find the evidence supporting the plaintiff should be found lacking credibility or not sufficient to prove the elements of the action by a preponderance of the evidence.

In discrimination cases, the burdens of proof do often shift. In some discrimination cases, once the plaintiff makes a certain initial showing (the burden of production), the burden of persuasion shifts to the defendant to explain why the conduct wasn't illegally discriminatory. It will be up to the defendant to propose an alternative to rebut this presumption. In such a case, SJ isn't appropriate unless there is no rational way that a jury could refuse to accept the non-discriminatory reasons proposed by the the defendant. Attacking the evidence of the moving party would be effective in such a case. (From my soapbox: This is why creating new causes of action for varying types discrimination is tricky business.)



I assume everything AreJay711 is saying is correct, but this is what i meant by you're confusing yourself by trying to contextualize it

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encore1101
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Re: Genuine Issues of Material Fact

Postby encore1101 » Wed Apr 15, 2015 11:11 am

BTW, TLS's face when Confused1L takes his CivPro final:

Image

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AreJay711
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Re: Genuine Issues of Material Fact

Postby AreJay711 » Wed Apr 15, 2015 11:24 am

encore1101 wrote:
I assume everything AreJay711 is saying is correct, but this is what i meant by you're confusing yourself by trying to contextualize it


Yeah. And, honestly, that's probably not going to come up on the exam. A paragraph about why you didn't try to challenge the defendant's evidence is going to get you a couple points max, and might eat time away from getting BLL down.

I just find that crap interesting.

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Re: Genuine Issues of Material Fact

Postby ConfusedL1 » Wed Apr 15, 2015 7:32 pm

AreJay711 wrote:
encore1101 wrote:
I assume everything AreJay711 is saying is correct, but this is what i meant by you're confusing yourself by trying to contextualize it


Yeah. And, honestly, that's probably not going to come up on the exam. A paragraph about why you didn't try to challenge the defendant's evidence is going to get you a couple points max, and might eat time away from getting BLL down.

I just find that crap interesting.


Thanks all. This was helpful. There was some term confusion, but that's because I got lazy and assumed people would know what I was talking about from other posts in the thread. Let me try and state my question as clearly as I can:

Let's say we have a discrimination case where some sort of evidentiary support of showing intent is necessary to make a claim. At the trial level, Defendant make a MSJ and the court says "Sounds good. D shows no genuine issue of material fact, and P just doesn't have enough to meet their evidentiary burden."

In appealing this, would P effectively just be making its best argument for why the lower court erred by trying to say:

- Hey! there are genuine issues of material fact that support our case. They're a,b,c
- Plus, there is circumstantial evidence not in dispute and ignored in the opinion that really does support a reasonable jury inference for our case (timing, behavior, etc.)
- Plus, D's factual claims are not good because they have inconsistencies/don't reasonably add. Because that may speak to credibility and an inference for us, a jury should hear this case.

Would the second two of those be relevant? In an appeal reviewed de novo, wouldn't P be arguing all of those? I guess my issue here is how to use things that AREN'T in dispute. Since it's de novo, does dispute even matter anymore?

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Re: Genuine Issues of Material Fact

Postby A. Nony Mouse » Wed Apr 15, 2015 11:09 pm

ConfusedL1 wrote:Thanks all. This was helpful. There was some term confusion, but that's because I got lazy and assumed people would know what I was talking about from other posts in the thread. Let me try and state my question as clearly as I can:

Let's say we have a discrimination case where some sort of evidentiary support of showing intent is necessary to make a claim. At the trial level, Defendant make a MSJ and the court says "Sounds good. D shows no genuine issue of material fact, and P just doesn't have enough to meet their evidentiary burden."

In appealing this, would P effectively just be making its best argument for why the lower court erred by trying to say:

- Hey! there are genuine issues of material fact that support our case. They're a,b,c
- Plus, there is circumstantial evidence not in dispute and ignored in the opinion that really does support a reasonable jury inference for our case (timing, behavior, etc.)
- Plus, D's factual claims are not good because they have inconsistencies/don't reasonably add. Because that may speak to credibility and an inference for us, a jury should hear this case.

Would the second two of those be relevant? In an appeal reviewed de novo, wouldn't P be arguing all of those? I guess my issue here is how to use things that AREN'T in dispute. Since it's de novo, does dispute even matter anymore?

P would probably say:
1) the facts are undisputed and they prove that what I say happened, happened, and based on those facts, the court should have granted me SJ because under the law those undisputed facts prove discrimination
2) in the alternative, SJ was inappropriate because there are genuine disputes of material fact (it doesn't matter who they support; there just has to be some kind of factual dispute that a jury has to resolve, not the court), and I submitted enough evidence that a reasonable jury could find that what I say happened, happened (P could use whatever evidence has been properly submitted in support/opposition to the MSJ).
3) in the alternative, even if the facts are undisputed in D's favor (that is, what D says happened is actually what happened), the court still got the law wrong and under the law, even with those facts, we still win.

Say P is a Jehovah's Witness and is claiming he got fired b/c he's a JW. His statement of facts in his complaint is, "I told my boss I was JW and he fired me 2 days later with no other reason." D files for SJ, saying "1) P never told the boss he was JW and the boss didn't even know he was JW [factual dispute] 2) P got fired because he was late 17 times in the previous month [factual dispute], and 3) even if the boss knew and fired him 2 days later, that's not enough to prove discriminatory intent [legal argument]."

Likelihood of success depends on what evidence P and D offer. If P says "I told my boss I was JW and here's an affidavit from my best friend who was there when I told him," and D says, "Here's an affidavit from boss saying P never told him," that would likely be a factual dispute the jury has to resolve - P has a witness and D doesn't, but P's witness is his best buddy who might be willing to lie for him, so it could kind of go either way - you need a jury to judge the witness' credibility and decide who's telling the truth.

However, if P says, "I told my boss and here's the e-mail chain in which I told him and he wrote back acknowledging that he knew and here's the affidavit from a computer expert explaining why these e-mails are legit/couldn't be faked," and D has nothing but the boss's word, the court might conclude there's no genuine issue of fact because no reasonable juror could find that P didn't tell D/D didn't know.

On the other hand, if P says, "I told my boss on date X at location Y," and D says, "here are sworn affidavits from 40 people who saw me give a speech at an awards dinner at the exact time P says he told me, 1000 miles away from location Y," the court might conclude there's no genuine issue of fact because no reasonable juror could believe P.

So the court would do this kind of analysis for each fact that matters to the outcome of the case. To grant SJ for D, the court would have to look at both of their statements of fact, and either decide that P's facts are actually the same as D's, or that where they differ, no reasonable person could believe P's version. Then the court would then find that under the facts that remain, under the law, D's actions weren't discrimination.

If the court grants SJ for D, P could appeal by saying, "the court was wrong because there are disputed facts all over the place." He could do that by saying "my evidence really was good enough to prove the boss knew," or by saying, "the 40 sworn affidavits aren't enough to overcome my version [for reasons - they're unsigned, it's the wrong date, the affiants are all convicted felons, whatever]." He's saying "we have to go to trial because only the jury can figure out what happened." Of course, the court may have concluded that P's version of facts is correct, but that under the law even those facts can't prove P's claim. Then P would say, "the court got the law wrong because." (He'd probably argue both.)

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Re: Genuine Issues of Material Fact

Postby ConfusedL1 » Thu Apr 16, 2015 9:55 pm

A. Nony Mouse wrote:
ConfusedL1 wrote:Thanks all. This was helpful. There was some term confusion, but that's because I got lazy and assumed people would know what I was talking about from other posts in the thread. Let me try and state my question as clearly as I can:

Let's say we have a discrimination case where some sort of evidentiary support of showing intent is necessary to make a claim. At the trial level, Defendant make a MSJ and the court says "Sounds good. D shows no genuine issue of material fact, and P just doesn't have enough to meet their evidentiary burden."

In appealing this, would P effectively just be making its best argument for why the lower court erred by trying to say:

- Hey! there are genuine issues of material fact that support our case. They're a,b,c
- Plus, there is circumstantial evidence not in dispute and ignored in the opinion that really does support a reasonable jury inference for our case (timing, behavior, etc.)
- Plus, D's factual claims are not good because they have inconsistencies/don't reasonably add. Because that may speak to credibility and an inference for us, a jury should hear this case.

Would the second two of those be relevant? In an appeal reviewed de novo, wouldn't P be arguing all of those? I guess my issue here is how to use things that AREN'T in dispute. Since it's de novo, does dispute even matter anymore?

P would probably say:
1) the facts are undisputed and they prove that what I say happened, happened, and based on those facts, the court should have granted me SJ because under the law those undisputed facts prove discrimination
2) in the alternative, SJ was inappropriate because there are genuine disputes of material fact (it doesn't matter who they support; there just has to be some kind of factual dispute that a jury has to resolve, not the court), and I submitted enough evidence that a reasonable jury could find that what I say happened, happened (P could use whatever evidence has been properly submitted in support/opposition to the MSJ).
3) in the alternative, even if the facts are undisputed in D's favor (that is, what D says happened is actually what happened), the court still got the law wrong and under the law, even with those facts, we still win.

Say P is a Jehovah's Witness and is claiming he got fired b/c he's a JW. His statement of facts in his complaint is, "I told my boss I was JW and he fired me 2 days later with no other reason." D files for SJ, saying "1) P never told the boss he was JW and the boss didn't even know he was JW [factual dispute] 2) P got fired because he was late 17 times in the previous month [factual dispute], and 3) even if the boss knew and fired him 2 days later, that's not enough to prove discriminatory intent [legal argument]."

Likelihood of success depends on what evidence P and D offer. If P says "I told my boss I was JW and here's an affidavit from my best friend who was there when I told him," and D says, "Here's an affidavit from boss saying P never told him," that would likely be a factual dispute the jury has to resolve - P has a witness and D doesn't, but P's witness is his best buddy who might be willing to lie for him, so it could kind of go either way - you need a jury to judge the witness' credibility and decide who's telling the truth.

However, if P says, "I told my boss and here's the e-mail chain in which I told him and he wrote back acknowledging that he knew and here's the affidavit from a computer expert explaining why these e-mails are legit/couldn't be faked," and D has nothing but the boss's word, the court might conclude there's no genuine issue of fact because no reasonable juror could find that P didn't tell D/D didn't know.

On the other hand, if P says, "I told my boss on date X at location Y," and D says, "here are sworn affidavits from 40 people who saw me give a speech at an awards dinner at the exact time P says he told me, 1000 miles away from location Y," the court might conclude there's no genuine issue of fact because no reasonable juror could believe P.

So the court would do this kind of analysis for each fact that matters to the outcome of the case. To grant SJ for D, the court would have to look at both of their statements of fact, and either decide that P's facts are actually the same as D's, or that where they differ, no reasonable person could believe P's version. Then the court would then find that under the facts that remain, under the law, D's actions weren't discrimination.

If the court grants SJ for D, P could appeal by saying, "the court was wrong because there are disputed facts all over the place." He could do that by saying "my evidence really was good enough to prove the boss knew," or by saying, "the 40 sworn affidavits aren't enough to overcome my version [for reasons - they're unsigned, it's the wrong date, the affiants are all convicted felons, whatever]." He's saying "we have to go to trial because only the jury can figure out what happened." Of course, the court may have concluded that P's version of facts is correct, but that under the law even those facts can't prove P's claim. Then P would say, "the court got the law wrong because." (He'd probably argue both.)


Thanks for taking the time, this was really helpful. I did have two follow ups.

- Is 3 only really an argumentative technique if the court really did get the law wrong? Say, for instance, there really is only one test they could have used to answer a legal question. If that's not really in contest, that precludes being able to use that argument right?

- Does anyone know what the difference is between "judgment as a matter of law" and "judgment as a matter of law AND FACT?" I have no idea.

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A. Nony Mouse
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Re: Genuine Issues of Material Fact

Postby A. Nony Mouse » Thu Apr 16, 2015 10:58 pm

Re: 3, the plaintiff can argue anything they want, and will probably still argue that the court got the law wrong, because if they don't, they're conceding the argument. It doesn't have to be a good argument, or correct, and they probably won't win, but you can still make whatever legal argument you want, even if it's wrong.

I think judgment as a matter of law and fact just means that there are no factual disputes (no juror could find the P's facts)? Is it from a case? I'm not really familiar with that.




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