Paper Trail is a 12-part series that follows a single fictional case through every phase of American civil litigation, from pre-litigation to post-trial.
In Part 7, five people sat for depositions. Depot Print Shop’s independent medical exam doctor testified that Patty needed less time off work than she took. The store manager, deposed as Depot Print Shop’s designated witness, grew visibly agitated once questioning turned to what he knew about the stacked paper before Patty’s fall, and his deposition was recorded on video. With that testimony now locked in, both sides turn to motion practice, filing arguments aimed at shaping, narrowing, or ending the case before it ever reaches a jury.
A motion is a formal request asking the court to rule on a specific issue. One side, known as the moving party, files their motion, laying out what they want and why they’re entitled to it. The opposing side can then file a motion in opposition, arguing why that request should be denied. The moving party can then file a reply responding to the opposition.
In practice, it’s two sides arguing back and forth on paper, with each round growing sharper and more targeted as the exchange continues. That back-and-forth often culminates in a hearing, where both sides argue those same positions out loud in front of a judge.
A motion for summary judgment (MSJ) asks the court to rule that a trial isn’t necessary, either for the whole case or part of it, because the outcome is already clear as a matter of law. The MSJ argues that there’s no point spending time or money to argue at trial if it’s already obvious which side legally has to win. When it targets the whole case, it’s simply an MSJ. When it targets one specific issue, and the rest of the case will continue to trial, it’s called a motion for partial summary judgment. Both work the same way, under the same legal standard, just at different scales.
For an MSJ to be granted, the moving party must show that there is no genuine dispute of material fact and that they’re entitled to judgment as a matter of law. That standard breaks down into the three pieces described below.
At trial, factual questions are decided by the fact finder—a jury, if there is one, or a judge, if there’s not. Legal questions are decided by the judge alone, regardless of whether there’s a jury. A judge can only grant summary judgment if the question being asked is legal. A disputed factual question cannot be decided pre-trial by the judge in a jury trial, because doing so would deprive the parties of their right to have that question decided by a jury.
For example, whether Depot Print Shop owes a legal duty to maintain safe walkways is a question of law a judge can resolve. Whether an employee actually noticed the hazard before Patty’s fall is a factual question a jury would normally have to decide.
Almost any issue will have at least one side disputing it, since arguing for their client’s position is a lawyer’s job. That it’s being argued, however, does not in and of itself make a dispute genuine. The question is whether a reasonable jury, looking at the available evidence, could come out either way. If one side’s version is backed by evidence and the other side’s is just a denial with nothing behind it, there’s no genuine dispute left to send to a jury.
For example, if an eyewitness account and surveillance footage both confirm that Patty slipped and fell, the store simply insisting otherwise, with no contrary evidence of their own, is not presenting a genuine dispute.
The fact in question must be material, meaning it has to affect the outcome of the case, not just be something the parties disagree about.
For example, whether Patty broke her wrist is material, since it goes directly to her damages. Whether she was wearing green shoes that day isn’t material, since it has nothing to do with whether Depot Print Shop is liable.
These three pieces work together. Once there’s no genuine dispute about what the material facts are, the question shifts from “what happened” to “who wins, given what happened,” which is precisely the kind of legal question a judge should resolve. If a genuine factual dispute survives, the judge can’t resolve the issue, and it goes to the jury.
Amanda moves for partial summary judgment on the issue of notice. Her argument is that the internal email to the store manager already proves, as a matter of law, that the manager knew about the hazard before Patty’s fall, so there’s nothing left for a jury to decide on that specific point.
Depot Print Shop’s attorney opposes the motion, arguing that what the manager actually understood is far from settled. They claim that the email shows he was told about the stacked paper, but whether he registered it as a safety hazard rather than a purely aesthetic complaint is a question about his own state of mind—exactly the kind of thing a jury, not a judge, is supposed to weigh.
Not every expert who’s hired to testify is ultimately allowed to give their opinion at trial. A party can challenge whether an expert’s methodology and reasoning are reliable enough to put in front of a jury.
In federal court, this is governed by the Daubert standard, which asks a judge to act as a gatekeeper before expert testimony ever reaches a jury. A judge considers four things:
Is the expert qualified to offer the opinion in question?
Does their opinion rest on sufficient facts or data?
Does their opinion come from reliable principles and methods?
Were those principles and methods were reliably applied to the specific facts of the case?
Courts often lean on a set of factors to help answer those four questions: whether the expert’s technique can be tested and repeated, whether it’s been subject to peer review, its known or potential error rate, and whether it’s generally accepted in the relevant field. Most state courts either apply Daubert directly or use a substantially similar standard. A small number of states, including California, use their own version of this same reliability test without formally adopting Daubert by name.
Amanda moves to exclude the IME doctor’s testimony on Patty’s recovery time. He is an orthopedic specialist, but his training is in foot and ankle injuries, not wrist injuries like the one Patty suffered. His opinion is also entirely based on a single, brief examination. He never reviewed Patty’s imaging or compared her case to standard recovery timelines. Amanda’s motion also points out that this isn’t the first time the doctor’s opinion has been challenged. He testifies frequently as a defense-side expert, and his opinions have been excluded in three prior cases, each time because his conclusions were unsupported.
Depot Print Shop’s attorney opposes the motion, arguing that the doctor’s broader orthopedic background is enough to qualify him, and that any gaps in his methodology might affect the weight given to his testimony, but shouldn’t prevent the jury from hearing it at all.
Once a motion and its opposition are on file, the court may hold a hearing. Plenty of motions are instead decided entirely on the papers, with no oral argument. Many courts also issue tentative rulings in advance, a preview of how the judge intends to rule, which will become final unless either side specifically requests a hearing.
A hearing goes beyond what’s already included in the filed motions. It gives the judge a chance to press on specific weak points in either side’s argument, ask questions the filings never quite answered, or let the losing side make one last attempt to sway their opinion before a ruling comes down. Hearings are usually argued attorney versus attorney, with no need for the client to attend.
The range of ways hearings might play out is wide. A heavily contested, case-shaping motion might get a real, dedicated chunk of a judge’s calendar and substantial oral argument. A routine motion often gets folded into a crowded calendar slot instead, where dozens of attorneys from unrelated cases each wait their turn to argue for a few minutes before the judge moves on to the next matter.
Amanda’s motion for partial summary judgment as to the issue of the manager’s notice of potential hazard is heard first, well ahead of trial. The judge denies it. Whether the manager understood the email about the stacked paper to be a safety warning versus an aesthetic complaint was found to be a genuine, disputed question of fact. Therefore, it must be decided by the jury and cannot be resolved by an MSJ.
Her motion to exclude the IME doctor is heard separately. The judge grants it, agreeing that the specialty mismatch combined with the doctor’s documented pattern of unsupported conclusions is enough to keep his opinion away from the jury entirely. His testimony on Patty’s recovery time will not be presented at trial.
Notice is still a live, disputed issue, and it’s headed to trial along with every other issue yet to be resolved. Depot Print Shop’s medical opinion questioning Patty’s recovery time, on the other hand, is gone entirely. These decisions have shifted how this case will look heading into trial.
In the next installment of Paper Trail, both sides take stock (no paper pun intended) of where they stand and consider whether it’s in their best interest to settle before trial. Start at the beginning to read Patty’s story from the morning of the incident to final resolution.
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