October-November 2016:Never Too Young to Share Old Battle Wounds
“I have been doing this for 30 years, and I have . . .” “Back in my day, we didn’t . . .” “I remember this one time . . .” You do not have to practice 30 years to get a “battle scar” in this business! Like myself recently, if you are not careful, the new Motion for Summary Judgment1 rules and procedure can “bruise” you quickly.
Recent amendments to the summary judgment law became effective on Jan. 1, 2016, and they impose more stringent filing deadlines and service requirements. Some of the more substantial changes are the deadlines for filing and serving oppositions to a MSJ, the deadline for filing reply memoranda, and the type of documentary evidence allowed on a MSJ.
A recent amendment provides that a MSJ “shall be filed and served on all parties in accordance with La. C.C.P. art. 1313 not less than sixty-five days prior to the trial.” Practically speaking, this amendment may require the mover to file his/her motion too soon without the benefit of evidence or information that could be obtained later in the discovery process.
Under the prior version of 966, an opposition to a MSJ had to be filed and served eight days prior to the hearing. Pursuant to the recent amendment, oppositions to a MSJ and all documentary evidence contained therein must be filed and served in accordance with art. 1313 15 days prior to the hearing. Additionally, reply memoranda must be filed and served five days prior to the hearing. It is important to note that reply memoranda cannot include any additional documents in support of the motion for summary judgment.
There are now specific statutory limitations on the type of documentary evidence that can be filed in support of or in opposition to a motion for summary judgment. The new, current version allows for the filing of only pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions in support of motions for summary judgment. Further, opposing counsel must state their objections to submitted documents in timely filed opposition or reply memoranda, as said objections cannot be made orally at the hearing or by motion to strike the evidence. Thus, it is important to review the evidence submitted promptly and make all appropriate objections in timely filed memoranda.
The recent amendments have not technically changed the burden of proof set forth in art. 966. But as a word to the wise, the wording of this section of the statute has changed to “the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” The former version of the statute stated, “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.”
If I can give any free “advice” to the Young Lawyers Division, it would be that upon receipt of a MSJ, immediately read it and begin opposing it. At the very least, be diligent in calendaring the new deadlines required by art. 966. Please read the new article closely to avoid receiving your very own “battle wound.”
1. Louisiana Code of Civil Procedure art. 966 (hereinafter referred to as “La. C.C.P. art. 966” or “MSJ”).