You’re staring at an MBE question about a motion for summary judgment, and you freeze. Was there a genuine issue of material fact? Did the moving party meet their burden? What standard does the court apply? Summary judgment questions consistently trip up bar examinees because they require you to understand not just the black-letter rule, but how courts analyze evidence at the pre-trial stage.

Let’s break down Rule 56 so you can spot these issues instantly on exam day.

What Summary Judgment Actually Does

Summary judgment under Federal Rule of Civil Procedure 56 allows a court to resolve a case—or individual claims within a case—without a trial when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Think of it as the court saying: “Even viewing all the evidence in the light most favorable to the non-moving party, no reasonable jury could find for them.”

This is not the court weighing evidence or determining credibility. That’s what trials are for. Summary judgment asks a narrower question: Is there enough disputed factual evidence that a jury would need to resolve it, or is this case so one-sided that the law compels a particular result?

On the MBE, summary judgment questions test whether you understand this distinction. The examiners love to give you fact patterns where there’s some evidence supporting the non-moving party’s position, then ask whether summary judgment was properly granted. Your job is to determine whether that evidence creates a genuine issue of material fact.

The Two-Part Test for Summary Judgment

Rule 56 requires the moving party to show two things:

First: No genuine dispute as to any material fact exists. A fact is material if it would affect the outcome under the governing substantive law. A dispute is genuine if a reasonable jury could return a verdict for the non-moving party based on the evidence.

Second: The moving party is entitled to judgment as a matter of law. Even if the facts are undisputed, the law must compel the result the moving party seeks.

Here’s where students get confused: the standard changes depending on who moves for summary judgment.

Burden of Production vs. Burden of Persuasion

When the defendant moves for summary judgment on a claim where the plaintiff bears the burden of proof at trial, the defendant can meet their initial burden in two ways:

  1. Produce evidence negating an essential element of the plaintiff’s claim, OR
  2. Point out that the plaintiff lacks evidence to support an essential element

If the defendant satisfies this initial burden, the burden shifts to the plaintiff. The plaintiff must then produce specific evidence showing a genuine issue for trial. Conclusory allegations in the pleadings won’t cut it. The plaintiff needs affidavits, depositions, documents, or other admissible evidence.

When the plaintiff moves for summary judgment, they bear a heavier burden. They must establish every element of their claim so conclusively that no reasonable jury could find otherwise.

Here’s a hypothetical to illustrate: Plaintiff sues Defendant for breach of contract, claiming Defendant failed to deliver 1,000 widgets by March 1. Defendant moves for summary judgment and attaches a signed delivery receipt showing 1,000 widgets delivered on February 28. Plaintiff responds with only their complaint alleging non-delivery. Summary judgment should be granted. Why? Defendant produced evidence satisfying their obligation, and Plaintiff failed to create a genuine dispute. If Plaintiff had submitted an affidavit stating “I never received those widgets and the signature on the receipt isn’t mine,” that would create a genuine issue requiring a jury to assess credibility.

What Evidence the Court Considers

The court doesn’t consider just anything when ruling on summary judgment. Under Rule 56(c), the evidence must be in a form that would be admissible at trial. You can’t defeat summary judgment with inadmissible hearsay or speculation.

The court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in their favor. This is critical for the MBE. Even if you think the moving party’s evidence is stronger, if the non-moving party has produced admissible evidence creating a factual dispute on a material issue, summary judgment must be denied.

Watch for answer choices that say summary judgment was proper because “the moving party presented more persuasive evidence.” That’s wrong. Summary judgment isn’t about persuasiveness—it’s about whether a genuine dispute exists.

Partial Summary Judgment

Rule 56 allows courts to grant summary judgment on some claims or issues while leaving others for trial. This is called partial summary judgment.

For example, in a negligence case, the court might grant summary judgment on the issue of whether the defendant owed the plaintiff a duty, but leave the questions of breach and causation for the jury. The MBE tests whether you understand that summary judgment can resolve discrete issues even when the entire case can’t be decided.

Common MBE Traps on Summary Judgment

Trap #1: Confusing summary judgment with motions to dismiss. A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint, accepting all allegations as true. Summary judgment looks beyond the pleadings to the actual evidence. If the question mentions affidavits, depositions, or discovery materials, you’re dealing with summary judgment territory.

Trap #2: Thinking any factual dispute defeats summary judgment. The dispute must be both genuine and material. If the parties disagree about what color shirt the defendant was wearing, but shirt color is irrelevant to the legal claims, that dispute doesn’t preclude summary judgment.

Trap #3: Forgetting the standard of review. The court must view evidence in the light most favorable to the non-moving party. If an answer choice requires you to resolve a credibility determination or choose between competing inferences, summary judgment is improper.

Trap #4: Ignoring who bears the burden of proof at trial. This determines what the moving party must show initially. If the defendant moves on an issue where they’d bear the burden at trial (like an affirmative defense), they must produce evidence establishing every element of that defense.

How This Shows Up on the MBE

MBE Civil Procedure questions on summary judgment typically present a scenario where one party moves for summary judgment, then ask whether the motion should be granted. You’ll need to:

Consider this pattern: “Plaintiff sued Defendant for negligence. Defendant moved for summary judgment, submitting an affidavit stating he was out of state when the accident occurred. Plaintiff submitted no response. Should the court grant the motion?”

Answer: Yes. Defendant produced evidence negating an essential element (causation—he couldn’t have caused the accident if he wasn’t there). Plaintiff’s failure to respond with contradictory evidence means no genuine dispute exists.

Now change one fact: “Plaintiff responded with an affidavit from a witness stating she saw Defendant at the accident scene.” Now there’s a genuine dispute about a material fact (whether Defendant was present), and summary judgment must be denied.

Connecting the Dots to Your Bar Prep

Summary judgment questions require you to know not just the Rule 56 standard, but how it interacts with the substantive law governing the underlying claim. You need to quickly identify what elements matter, what evidence exists, and whether a reasonable jury could rule for the non-moving party.

This is exactly why organized, active recall matters for Civil Procedure. You can’t afford to flip through outlines during the exam trying to remember whether the burden shifts or what “material fact” means. The rule needs to be instantly accessible.

If you want all 99 Civil Procedure rules structured for exactly this kind of rapid recall, FlashTables Civil Procedure breaks down every major doctrine—from jurisdiction through post-trial motions—in a two-column format designed for active testing. You see the rule name, you recall the elements, you check yourself. No fluff, no narrative you have to re-read three times.

Key Takeaways for Summary Judgment

Memorize this framework:

Summary judgment is proper when: (1) no genuine dispute exists as to any material fact, AND (2) the moving party is entitled to judgment as a matter of law.

Material fact: A fact that would affect the outcome under governing law.

Genuine dispute: A reasonable jury could find for the non-moving party based on the evidence.

Defendant’s initial burden (when plaintiff has burden of proof at trial): Produce evidence negating an element OR show plaintiff lacks evidence.

Plaintiff’s initial burden: Establish every element so conclusively no reasonable jury could find otherwise.

Standard of review: View all evidence in the light most favorable to the non-moving party; draw all reasonable inferences in their favor.

Evidence considered: Must be admissible at trial; pleadings alone are insufficient to defeat summary judgment.

When you see a summary judgment question on the MBE, don’t panic. Identify the material facts. Check what evidence each side produced. Ask whether a reasonable jury could rule for the non-moving party. If the answer is no, summary judgment is proper. If there’s any genuine dispute on a material issue, it must be denied. Master this analysis, and you’ll handle these questions with confidence.