The Indiana Supreme Court once again issued an opinion highlighting the bright line rule that a party opposing summary judgment must file affidavits in opposition to summary judgment or a request for enlargement of time within 30 days of the filing of the motion for summary judgment or else their affidavits in opposition may not be considered by the trial court. There used to be some inconsistency on this point, but since 2004, these time frames should be strictly adhered to by the courts.
I’m a little bitter on this point since, in 2006, I believe, I had a trial court refuse to adhere to the trial rules on this point. I filed for summary judgment on behalf of my client. The opposition didn’t file any affidavits in opposition until the day of the hearing (at least 60 days after my motion was filed). Ready for this eventuality, I objected and cited the appropriate case law at the hearing. The court overruled my objection. I filed a motion to correct error, citing chapter and verse on the propriety of considering untimely affidavits. That motion was denied. I requested certification of an interlocutory appeal (an appeal taken before final judgment) so that I could get a higher court to look at the issue. The trial court denied my request. Eventually the case went to trial and my client got a judgment for about 60% of what it was entitled to. I explained that we had a great shot on appeal, but ultimately the client decided it had to cut its legal expenses and settled for the 60%.
So, remember kids, it’s not always enough to have the law on your side.
There’s nothing more intimidating than arguing a motion that is a slam dunk. Sometimes I feel like my batting average is lower on those than on the tough ones.
Sometimes I feel bad about pushing this particular SJ issue, because it’s a pretty draconian rule and calendar entry mistakes do happen. But right now, I’m pushing the issue in a meritless case that should have been voluntarily dismissed months ago. Instead, opposing counsel stonewalled his way into malpractice. I certainly don’t feel bad about it in this case.
As a general rule, I’m pretty easy to work with when it comes to opposing counsel. In this particular situation, opposing counsel had not provided the slightest clue as to what the nature of their defense was. From my perspective, there was an account due, services had been rendered. Their answer to the complaint just contained a bare bones denial. We hadn’t conducted any formal discovery, but I had sent a letter asking about the nature of the dispute, suggesting that maybe we could work out a settlement informally, depending on the nature of the fight.
As it turned out, they were claiming entitlement to an offset against the account in issue based on a dispute over a separate account upon which my client was not suing.
The day of the hearing, opposing counsel called and said he’d be filing an opposing affidavit. I was apologetic, but told him I’d have to object. It wasn’t a tough choice in that case where there hadn’t been an earlier explanation for the non-payment. It would be a tougher case in the hypothetical situation where the lines of communication had been open, where I knew the nature of the opposition, but opposing counsel just spaced on a deadline. In that case, particularly with local counsel against whom I’ll be practicing for years and from whom I will inevitably need a favor some day; I’d probably want to agree to let them file opposing affidavits. But, it would probably be an ethical violation of my duty to my client to agree, post-deadline, to an extension request.
Obviously, in the case I described, I don’t know what went on between opposing counsel and his clients; but, there’s a good chance that the trial court judge disagreeing with what I considered to be pretty clear case law saved that attorney from a malpractice suit.
I wonder if you could have filed an original action.
The problem with the summary judgment issue is exactly as you describe: if I give someone a hard time, despite no prejudice to my client, about missing a discovery deadline or an expert disclosure deadline, I’m just being a jerk. But with so many appellate decisions on the SJ issue making clear that allowing a late filing is an abuse of discretion and reversible error, my hands are tied. Unless my client has some non-legal reason for letting the other side off the hook, I can no sooner waive it than I can waive a statute of limitation.
I’ve noticed in the past judges always seemed to let pro se defendants get away without filing affidavits in summary judgment motions in collection matters.
A defendant raising a factual issue at the hearing could be enough to have a matter set for trial, depending on the judge.
I have been concentrating on matters in Illinois for the past several years, so it is good news to hear courts are requiring that affidavits be timely filed in response to MSJs.
Well, I was a pro se defendant, in a small town, where a lawyer wouldn’t take my case because of “conflict of interest” with the local collection center. I filed an answer, and a disclosure, however, I did not file an affidavit. And, even though I had a cancelled check from the insurance company (paid towards bills I was getting sued for), proof the hospital had poor billing practices, an expert witness (degrees and certs in medical billing), proof my max out of pocket deductible with my insurance and annual max had been met, proof of payment I made that hadn’t been applied, I never got to show anyone any of this, because I did not file an “affidavit”. In less than a minute the judge granted a summary judgment. And even though I had tons of evidence proving otherwise, my appeal was denied because of not filing an affidavit in the first place. It only further disgusts me more to read the comments above that are “for” summary judgments. They are an injustice and a simple way to collect money from people who can’t afford their way through the legal system.