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Will Your Case Get to a Jury? It May Not, if You’re Not Diligent


If your accident case ends up being filed in court, you probably imagine that you will ultimately end up having to go through with a trial.   You’d be wrong.  Over 98% of cases are resolved short of trial.  They are either settled or dismissed through what is called a Rule 12 motion to dismiss or through a Rule 56 motion for summary judgment.

What is Summary Judgment?

Summary judgment is when a judge dismisses your case, before you get the chance to present evidence, and before you even get to argue your case in front of a jury. This seems like it’s against our American system—after all, isn’t everybody entitled to “their day in court?” Well, the answer is yes—but only if you survive summary judgment.

Why Kick Cases Out?

You’ve probably heard people say “anybody can sue for anything,” and that’s true—there is no bar to anybody filing any kind of case no matter how meritless or frivolous. But courts have a way of getting rid of baseless cases through the summary judgment process.

In other words, just because you can file a case doesn’t mean you have a right to go to trial.

Avoiding Summary Judgment

Summary judgment is granted when a party to a lawsuit can convince the judge that the other side cannot prove an essential part of the claim.  For example, in a slip and fall case, judges frequently dismiss cases through summary judgment because the injured party cannot establish the existence of a dangerous condition or that the property owner was aware of the existence of a dangerous condition – which is an essential element of the claim.

Of course, summary judgment is not appropriate in every case.  Lawyers have to be selective in the cases they take in order to avoid summary judgment.

To convince a judge to dismiss a case at the summary judgment phase, the Defendant has to show that you, as the victim, simply don’t have evidence to support each element of your claim.

The Defendant does this by providing citations to the court record and arguing that there is no genuine dispute as to any material fact of consequence.  That’s a fancy way of saying that the parties agree on what the proof is in the case and based on that proof, there’s not enough evidence to get the case to the jury.

To survive a motion for summary judgment, the victim must show that there exists a genuine dispute as to a material fact which requires the fact finder (i.e., the jury) to make a determination.

Getting Your Evidence Early

Defeating a motion for summary judgments starts early—it requires that victim’s attorneys be diligent about gathering the evidence that they need, so that if the summary judgment motion comes, they have the evidence to defeat it.  It also requires competent legal representation from the very beginning.  It often means that lawyers pass on serious injury cases because they know that an essential element of the claim might be missing.

Is your injury case being handled correctly? Call the Knoxville personal injury attorneys at Fox Farley Willis & Burnette, PLLC, today.



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