civil litigation trilogy

U.S. Litigation Trilogy: Evaluation, Settlement, and Motion for Summary Judgment (“MSJ”)

American Litigation Trilogy

This Article summarizes my years of experience in the realm of American commercial litigation and dispute resolution settlements. First, it is important to note that more than 90% of cases in the United States eventually settle instead of going into trial. In other words, the sooner the dispute is settled, the less the client pays for attorney’s fees and the greater the economic benefit the client obtains. Because of this, we firmly believe that litigation clients should consider implementing a process of evaluation-settlement-MSJ in their cases.

A. Evaluation

Case evaluation includes the assessment of the opposing party’s ability to pay the damages, the client’s ability to pay the attorney’s fees, the overall financial strength of the plaintiff or defendant, whether witnesses can appear in court in the United States, the strength of the facts, the application of the laws, the potential consequences of filing a lawsuit (such as counterclaims by the opposing party), statutes of limitations, the other party’s payment structure for the attorney’s fees, the potential settlement amount, and other factors. Objective evaluations lay a solid foundation for earlier settlement or victory in MSJ. During this process, litigators should analyze the case in light of their client’s best interest and provide reasonable and objective evaluation rather than mainly focusing on an attorney’s fee-driven evaluation.  

B. Settlement 

Given the potentially expensive attorney’s fees and lengthy yet unpredictable litigation procedures, I have advised all of my clients for the last couple of years to aim to settle their cases based on my team’s objective evaluation at different stages of the proceedings. This recommendation stems mostly from an economic analysis rather from the client’s emotions or ego. The client’s unrealistic expectation coupled with ego or emotion in litigation comes with a price: the possibility of continuous payments of attorney’s fees without any results, followed by the client’s unwillingness or inability to pay attorney’s fees along the way, and ultimately being forced to settle with unfavorable outcomes. A client’s self-righteousness may also pay a heavy price: according to industry data, the probability of clients obtaining a judicial verdict is far less than 10%, which means very few clients could afford to wait to see the justice. Lastly, even if a party prevails in a jury trial, post-trial recovery presents another obstacle for the client. For a defendant, the attorney’s fees paid following litigation may far exceed the proposed settlement amount at an early stage.

C. Motion for Summary Judgment

Generally, a motion for summary judgment is filed by a litigator for a lack of genuine dispute as to any material fact after completing the discovery process. A motion for summary judgment signals that the moving party has the right to obtain a judgment as a matter of law, as determined by the judge. The federal law stipulates that the time limit for filing a motion for summary judgment is 30 days after discovery unless otherwise specified by the court. On the other hand, state courts have different rules on the deadline for filing motions for summary judgment. For example, the deadline may not necessarily be after Discovery ends, but if MSJ is filed before Discovery ends, the other party may collect more evidence to generate factual issues to overrule the previous ruling.

Once the motion for summary judgment has been filed, a judge’s finding of fact is based on the reasonable juror’s standard, meaning that if a reasonable juror does not dispute the facts, the judge can make a decision under the law based on such facts. As to whether the facts are disputed, the judge uses the standard of reasonable jury, but the judge actually decides a case based on the evidence presented. Therefore, it is reasonable to assume that the judge himself or herself is a reasonable juror. Therefore, if the lawyer wants to win the MSJ, the key is to convince the judge. Before convincing the judge, the lawyer needs to use the three weapons to convince himself or herself: the deposition (opposing party’s testimony), the objective written evidence, and affidavits.

Given a serious backlog of cases in the United States, judges tend to rule in favor of the MSJ to the extent permitted by law. This poses a great challenge to lawyers, who need to evaluate the case objectively, develop the case proactively, formulate deposition thoroughly, and prepare the MSJ concisely. If the judge rejects the motion for summary judgment, it means that the judge believes that there are factual disputes, that is, the jury may have different views on the facts presented, not necessarily in favor of the moving party.  As a result, the moving party is advised to resume the settlement process to avoid unpredictable jury verdicts.

Note: This article is purely informational in nature and does not constitute legal advice in any sense. If you have any dispute resolution issues, please contact the author of this article, lawyer Bao, via email

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