Evidence on the Motion

A summary judgment motion asks the court to decide, from the papers alone, whether anything remains for a jury to decide. Parties can end a lawsuit by a settlement contract, with or without a mediator’s help, or by submitting the dispute to arbitration;¹ summary judgment ends it when the court rules, on the written record, that no trial is needed. The motion’s main purpose is to avoid useless trials and to reach a final determination on the merits,² and even a denied motion helps the parties, because the exchange of information needed to rule on it lets each side shape its case for trial.³

What the record contains can therefore decide the case. Once the movant’s papers show no genuine dispute of material fact, the burden shifts to the opponent to introduce outside evidence rebutting that showing; if the opponent introduces none, the court takes the movant’s evidence as true, and in most cases the motion succeeds.⁴ Rule 56(c) controls what that record may contain. Paragraph (c)(1)(A) lets a party cite particular parts of the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, and other materials,⁵ so written stand-ins take the place of live witnesses. Three further provisions limit those stand-ins: (c)(2) lets the opposing party object that cited material cannot be presented in admissible form, (c)(4) sets three requirements for affidavits and declarations, and (c)(3) says how much of the record the court must read. This unit takes them in that order.

Admissibility Objections

Rule 56(c)(2) lets a party object that the material cited to support or dispute a fact “cannot be presented in a form that would be admissible in evidence.”⁶ The operative word is can. Material need not arrive in trial-ready form; the objection succeeds only when its substance could not reach a jury in any admissible form. The Advisory Committee describes the objection as functioning much as an objection at trial does, adjusted for the pretrial setting, and it places the burden on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. A proponent who can do neither loses the evidence, because the court will not consider it.⁷

The objection exists because of what the motion does. Rule 56 is designed to avoid a trial that would be unnecessary, and the motion could not serve that function if courts, in deciding whether issues exist for trial, considered evidence that could not later be admitted at trial.⁸ A court that credited inadmissible proof would be forecasting a verdict from evidence the jury would never hear. The burden sits with the proponent for a practical reason: the proponent knows who the witness is and how the evidence will come in, while the objector sees only the paper.

A familiar problem shows the objection at work. United moves for summary judgment, and its evidence is its sales manager’s statement that he “heard” one of Spinoza’s coworkers, whose name he had forgotten, “guess” that they had not used United’s products.⁹ The quoted words expose two layers of trouble. The manager repeats what someone else said outside court, and what that person said was a guess rather than something he saw. No witness could carry that content into a trial, since the speaker is unidentified and had only speculation to offer. Content that could not be received at trial cannot support a ruling that forecasts the trial, so Spinoza’s timely objection removes it.

An oath does not repair the defect. A deponent who testifies that he “heard Bill say that Joe told him that Larry did it” has given inadmissible, unreliable hearsay, even though he spoke under oath.¹⁰ The deposition remains one of the kinds of material a party may cite,¹¹ but that particular answer adds nothing the court can use.

The objection has a limit, and Celotex drew it in favor of the party opposing the motion. Mrs. Catrett opposed summary judgment with evidence from a witness named Hoff in a form that was hearsay and possibly unauthenticated.¹² The Supreme Court nonetheless refused to demand trial-admissible form: “We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses.” The nonmovant may instead rely on any of the kinds of evidentiary materials the rule lists, “except the mere pleadings themselves.”¹³ Excluding Hoff’s statement would have forced Mrs. Catrett to depose her own witness when she might simply interview him informally and call him at trial.¹⁴

Hoff’s statement and the sales manager’s report are both hearsay in the form submitted, so what separates them? A witness with personal knowledge stands behind Hoff’s content. If Mrs. Catrett called Hoff at trial, he could presumably testify from personal knowledge and overcome both objections,¹⁵ so the proponent can answer the objection by explaining that anticipated form. The anonymous coworker offers nothing comparable: no named witness, and nothing but a guess. A nonmovant who relies on an item like Hoff’s should therefore say who the witness is and what the witness will say at trial, because the burden of explaining the anticipated form is the proponent’s.

The objection protects only a party who makes it. It functions much as an objection at trial does,¹⁶ and as at trial, an objection that no one raises keeps nothing out; a party who lets a defective affidavit pass in silence leaves it before the court.

Affidavits and Declarations

Rule 56(c)(4) governs the written statements that carry most summary judgment motions. An affidavit or declaration used to support or oppose a motion “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”¹⁸ The rule treats movant and opponent alike, so all three requirements bind both sides. Each does separate work, and the reasons show up once you ask what an affidavit replaces.

An affidavit replaces the witness on the stand. It is a sworn statement based on personal knowledge, and it earns a place on the motion because the affiant could come into court at trial and give the same testimony; the affidavit therefore shows that the party has admissible evidence.¹⁹ Accepting paper in place of the witness spares parties from staging testimony for a ruling on the papers, the same concern behind the Court’s statement that Rule 56 does not require a nonmovant to depose her own witnesses.²⁰ The allowance covers the form in which the witness speaks. It leaves the substance of what the witness says to the three requirements.

No one cross-examines an affiant, so the three requirements do the screening that cross-examination would otherwise do. Personal knowledge means the affiant perceived the facts directly, as an eyewitness would; a court cannot test a rumor or inference whose source it cannot see. The requirement of facts “that would be admissible in evidence” keeps out argument, characterization, and secondhand reports, each of which a trial judge would exclude from the witness stand. And competence must be shown: a judge who only reads cannot watch the witness or ask a follow-up question, so the document itself must explain why this person is in a position to know.

Hypothetical Illustration

A plaintiff sues on a promissory note and moves for summary judgment, which requires proof that the defendant signed it. The plaintiff first submits an affidavit from his lawyer: “My client told me he watched the defendant sign the note.” The lawyer was not in the room, so the statement is not made on personal knowledge, and it repeats an out-of-court account that would be hearsay at trial. The plaintiff next submits his own affidavit: “I know that the defendant signed the promissory note.” That sentence gives no basis for the knowledge it claims, and the court cannot tell whether he watched the signing, inferred it from the paperwork, or heard about it from someone else. A statement made “on information and belief” fails for the same reason, only more openly. The third version works. The plaintiff swears that on a stated date, standing three feet from the defendant at his desk, he watched the defendant sign the note. That is something he could say from the witness stand.

The same requirements govern the opponent. An affidavit promising only that the defendant “can prove forgery at trial” states no fact the affiant perceived, and it fails for the same reason as the bare “I know.” Nor can an opponent answer the movant’s affidavits by promising that cross-examination at trial will produce the proof. The opponent must indicate that it can produce the requisite quantum of evidence to reach the jury, and a hoped-for admission on cross-examination does not meet that burden.²¹

The court does not sort the believable affidavits from the doubtful ones. It will not weigh or assess the actual credibility of any witness, because that is the jury’s role. An opponent who wants to put an affiant’s credibility in question must introduce facts showing why it is in question, typically that the witness is not disinterested (a party, for example) or that the issue turns on someone’s state of mind or motive, so that the outcome depends on what was in that person’s mind at a given time. The court then asks only whether credibility may be determinative, and if it may, the motion is denied.²²

A defect does not necessarily sink the whole document. The objection targets the material cited to support or dispute a fact,²³ and the court will not consider what the proponent cannot present in admissible form.²⁴ When an affidavit mixes competent and incompetent statements and an objection is made, the court disregards the statements that fail and considers the rest.

Hypothetical Illustration

A driver whose car was rear-ended by a delivery truck opposes the trucking company’s motion with an affidavit containing three paragraphs. The first says the driver was stopped at a red light on Main Street and felt the truck strike the bumper. The second says the truck’s brakes were known to be defective. The third says a bystander told the driver that the truck’s operator had been drinking. The company objects to the second and third paragraphs. The first stands, because it recounts what the driver perceived. The second fails because the affidavit shows no basis for the driver’s knowledge of the brakes. The third fails because it repeats a bystander’s out-of-court statement, which would be hearsay at trial. The court disregards the second and third paragraphs and considers the first.

Materials Not Cited

Rule 56(c)(3) fixes how much of the file the court must read: “The court need consider only the cited materials, but it may consider other materials in the record.”²⁶ The sentence gives two permissions of different strength. Need sets a floor: the cited materials are the ones the court must take into account. May gives the court discretion over the rest, so a judge is free to look anywhere in the record but is not required to. The floor tracks Rule 56(c)(1)(A), under which a party supports a fact by citing particular parts of the record,²⁷ and a party who cites a deposition page, an affidavit paragraph, or an exhibit has told the court where the support is.

The duty falls on the parties because they know which pieces of a large file matter, and the judge does not. A record may hold several depositions, hundreds of documents, and multiple sets of discovery responses. A court that had to read all of it and assemble each side’s best case would be doing the lawyers’ work, and the opposing party would have no clear target to answer. The rule gives each party the job of finding its own proof. A nonmovant whose brief asserts that the record shows a dispute, without a citation, has asserted but not supported, and the court need not search the file for her.

Hypothetical Illustration

A passenger sues a bus company, and the company moves for summary judgment on the ground that its driver was not at the intersection when the collision occurred, citing a dispatcher’s affidavit. The passenger’s opposition brief says only that the record shows a dispute about the driver’s whereabouts. It cites no page, exhibit, or paragraph, although a mechanic’s deposition already filed in the case places the driver at the intersection. The court need not search the file for that testimony and may decide the motion on the cited materials, which leave the dispatcher’s affidavit unanswered. The judge may nonetheless notice the mechanic’s testimony while reviewing the record, and Rule 56(c)(3) permits her to rely on it even though no party cited it.²⁸ Whether she does is her choice, and the passenger should not count on it.

The discretion to look beyond the citations has a counterpart in discretion to hold back. Occasionally a judge denies summary judgment and sends the parties to trial because a fuller record may clarify the correct legal analysis.²⁹ The Supreme Court has approved that course, reasoning that it is “good judicial administration to withhold decision of the ultimate questions involved in this case until this or another record shall present a more solid basis of findings,” because a conclusion reached on the present record “might well be found later to be lacking in the thoroughness that should precede judgment of this importance.”³⁰ The course is occasional, not routine, so a party whose best evidence sits uncited cannot treat it as a safety net.

Two opposite mistakes come from misreading Rule 56(c)(3). One assumes that because the court may consider the whole record, a bare reference to “the record” is enough support. The other assumes that because the court need consider only cited materials, it may use nothing else. The sentence means neither. Cite the particular support you rely on, and treat the court’s discretion to find more as a bonus you cannot count on. A later section takes up what a court may do when a party fails to support or address a fact properly.