Replies, Cross-Motions in Summary Judgment

Litigation Partner Daniel Small co-authored an article with the Honorable Judge Douglas H. Wilkins in Massachusetts Lawyers Weekly as part of a biweekly series. In this column, they discuss how to effectively reply to an opposition to a summary judgment motion. They advise attorneys to avoid merely restating points covered in the original brief and instead suggest that attorneys begin from a default of not replying at all, similar to deciding not to redirect a witness at trial so as to convey confidence in one's case. However, some circumstances do call for a written response, such as filing a cross-motion to strike any evidentiary material that would be inadmissible at trial. The authors also stress not waiting until the reply to address an issue — even if it means a new motion and opposition need to be filed — and touch on the rare cases warranting a cross-motion for summary judgment against the moving party.

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