Settlement may be easier to achieve when neither side has incurred the cost of litigating summary judgment. Early dialogue can lead to serious settlement negotiations, avoid premature summary judgment motions, and simplify issues for trial. Before filing, a party should consider whether the case is ripe for summary judgment. Summary judgment motions which do not involve clear cut legal issues are often premature before the close of discovery. Therefore, an early summary judgment motion may result in delay as the necessary discovery is completed.
Courts are reluctant to enter summary judgment before the close of discovery.
Summary judgment should be actively discouraged for cases that can be tried in less than a week or which involve relatively small sums of money. This is particularly true where the number of witnesses is small and are within the Court's subpoena power. Consider the amount of effort required in preparing and responding to summary judgment. These costs should be compared to the amounts involved in the case and the cost of trial before the motion is filed. In smaller cases, the cost of trial may not be substantially greater than summary judgment.