After a lawsuit is filed in an employment case, there will be a time of discovery where both sides explore the position, documents, and evidence of the other side. After this period and before a trial, the defendant can file what’s referred to as a motion for summary judgment. Most employment cases nowadays will face these motions, as defendants have been emboldened by defense sympathetic judges to grant these motions when possible to avoid a jury trial. The defendant will file the motion supported by excerpts from deposition testimony, affidavits, and other documents in an attempt to show that the plaintiff will be unable to present legally sufficient admissible evidence to create a fact question for a jury to decide on the plaintiff’s elements of his case. Every cause of action (for example age discrimination) is authorized by a statute that sets out the elements of the suit which must be proved in order for the plaintiff to prevail. If the plaintiff is not able to raise a fact question for the jury to decide on each one of the elements of the cause of action, then the judge can dismiss the suit. In response to the motion for summary judgment, the plaintiff must file a brief supported by evidence showing that he can produce evidence raising a fact question for a jury to decide. A fact question is simply enough evidence that a reasonable jury could decide either for or against the plaintiff or defendant on the issue. The courts, especially in federal court, are more frequently reviewing the evidence before trial and just deciding that no reasonable jury could find for the plaintiff on the facts presented. These judges also depend on opinions from other cases as authority for their decisions. So, you can see that as these conservative judges more frequently find against the plaintiff on these cases, it helps the other judges to have legal precedents to also do the same. This is an increasingly difficult problem for plaintiffs to get their cases to a jury. It takes a lot of work , knowledge of the law, and skill to be able to avoid these summary judgments and convince some of these judges to allow the case to proceed to a jury trial.