Summary. Summary judgment is decided on a record and on compliance with a local rule, and most motions are lost on the second of those. This checklist covers the whole sequence: deciding whether to move, building the record during discovery, drafting the statement of undisputed facts that carries the motion, handling evidence and objections under the post-2010 framework, and preserving the ruling for appeal. It gives separate phases to the moving and opposing sides, and flags the two decisions that determine what survives a denial.

What this checklist is for. Filing or defeating a Rule 56 motion without losing on procedure. For the doctrine, see Summary Judgment Under Rule 56.

Phase 1 — Decide whether to move

  • Identify the legal question that disposes of a claim: limitations, preemption, immunity, release, contract interpretation, failure of a statutory prerequisite, economic loss rule.
  • Ask honestly whether you are arguing law or facts. If your best argument requires disbelieving a witness, do not file.
  • Consider partial relief under Rule 56(a) and fact-establishment under Rule 56(g): an unambiguous contract term, an enforceable liability cap, an unavailable damages category, a failed affirmative defense.
  • Assess whether a partial win materially changes trial or settlement.
  • Check the judge's grant rate in this kind of case and their standing order.
  • Weigh the cost of educating the opponent against the benefit.

Why this matters. Most denied motions were filed because the client wanted one. The best use of Rule 56 in a genuinely disputed case is narrowing — establishing the cap, killing a damages theory, or fixing the meaning of a contract term.

Phase 2 — Build the record during discovery

  • Outline the motion before the first deposition, and list the admissions you need.
  • Depose with closed questions on the dispositive points; avoid qualifiers that create ambiguity.
  • Use a Rule 30(b)(6) notice with topics mapped to the elements.
  • Obtain documents in a form you can authenticate, and get authentication admissions through requests for admission where possible.
  • Serve contention interrogatories to lock the opponent's theories.
  • Identify the evidentiary standard that governs (preponderance, clear and convincing) — it applies at summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

Why this matters. Rule 56 is decided on the record you built. A motion assembled from whatever discovery happened to produce is a much weaker document than one whose evidence was collected on purpose.

Phase 3 — Draft the fact statement first

  • Read the local rule (commonly Local Rule 56.1) and the judge's standing order before drafting.
  • One fact per numbered paragraph, short and neutral.
  • A pinpoint citation for every paragraph — page and line, not "Exhibit 12."
  • No argument in the fact statement.
  • Confirm each cited document is authenticated or authenticable and each declarant has personal knowledge, Rule 56(c)(4).
  • Check page and paragraph limits where they apply.

Why this matters and the trap. In most districts, facts not properly controverted with a record citation are deemed admitted. More summary judgment motions are decided by 56.1 compliance than by any doctrinal argument.

Phase 4 — Draft the motion

  • Identify, for each element, whether you or the opponent bears the trial burden — the Celotex showing differs. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
  • Where the opponent bears the burden, point to the absence of evidence by citing the specific discovery responses and testimony revealing it, Rule 56(c)(1)(B).
  • Where you bear the burden, affirmatively establish every element.
  • For each asserted undisputed fact, identify the contrary inference a jury could draw and address it.
  • Lead with the cleanest ground; three strong arguments beat eight of mixed quality.
  • Do not argue credibility — courts may not weigh evidence or make credibility findings. Tolan v. Cotton, 572 U.S. 650 (2014).
  • Use Scott v. Harris, 550 U.S. 372 (2007), only where objective evidence (video, telemetry, an authenticated recording) blatantly contradicts the opposing account.
  • File or coordinate any Rule 702 motion. See Expert Disclosure and Daubert Challenge Checklist.
  • Prepare a proposed order that is specific about what is granted.

Why this matters. Celotex did not authorize a bare assertion that the opponent has no evidence; it requires pointing to the parts of the record that reveal the absence. Motions that skip that step are denied without reaching the merits.

Phase 5 — Opposing

  • Calendar the deadline and the local rule requirements immediately.
  • Respond to every numbered fact with a citation. Never write "disputed" alone — it is treated as an admission.
  • Do not dispute everything. Admit what is true; make the genuine disputes stand out.
  • File a separate statement of additional material facts.
  • Submit affirmative evidence; a non-movant may not rest on the pleadings. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
  • Screen every declaration against prior deposition testimony for the sham affidavit problem; if a declaration differs, explain why in the declaration.
  • Make Rule 56(c)(2) objections with specificity — the question is whether the material can be presented in a form that would be admissible, not whether it is currently in admissible form.
  • File a Rule 56(d) declaration if discovery is genuinely incomplete, stating: the specific facts sought, why they are essential, why they have not been obtained (with diligence), and how and when they will be obtained.
  • Answer every argument; silence is treated as concession.
  • State, in one paragraph, the precise factual questions a jury must decide.

Why this matters. Vague Rule 56(d) declarations are denied. Specific ones are granted. The same is true of everything else on this list.

Phase 6 — Cross-motions, hearings, and consolidation

  • Remember that cross-motions do not mean the case can be decided as a matter of law; each is judged separately with inferences favoring the party opposing it.
  • Draft your own fact statement knowing it may be used against you.
  • Request an evidentiary hearing only where credibility or a disputed methodology genuinely requires it, identifying the specific disputes.
  • Watch for Rule 56(f) sua sponte action; the court must give notice and a reasonable time to respond.
  • Do not consent to Rule 56(a)(2) consolidation with trial without confirming a full opportunity to develop the record — findings at the preliminary stage are not binding. University of Texas v. Camenisch, 451 U.S. 390 (1981).

Phase 7 — After the ruling

  • If granted in part, confirm what remains and whether Rule 54(b) certification is worth seeking.
  • If denied, classify every argument as legal or factual:
  • When in doubt, make the Rule 50 motion — it costs a paragraph.
  • Preserve evidentiary objections and request findings where useful.
  • Consider Rule 56(h) relief if a declaration was submitted in bad faith.

Why this matters. Ortiz and Dupree together decide what an appellate court can reach. The classification exercise takes ten minutes and prevents the most common preservation failure in civil practice.

Common mistakes

  • Filing without reading the local rule.
  • Citing to exhibits rather than to pages and lines.
  • Arguing credibility, which is a request to try the case on paper.
  • Disputing every fact, which costs credibility and buries the real dispute.
  • A boilerplate Rule 56(d) declaration.
  • Attaching extrinsic material that converts the motion or draws an objection.
  • Overreading Matsushita, which addresses implausible inferences in antitrust conspiracy cases, not weighing evidence generally.
  • Forgetting the Rule 50 motion at trial after a denial.
  • Filing the exclusion motion after summary judgment is briefed.

Primary authority

Related

This checklist is educational and not legal advice. Summary judgment practice is heavily governed by local rules and individual standing orders. Consult qualified litigation counsel about any particular motion.