The term "summary judgment" suggests a judicial process that is simple, abbreviated, and inexpensive. But the federal summary judgment process is none of those. Lawyers say it's complicated and that judges try to avoid it. Clients say it's expensive and protracted. Judges say it's tedious and time-consuming. The very name for the procedure is a near-oxymoron that creates confusion and frustrates expectations.
For years, district courts have struggled to simplify and rationalize the process through local rules. Recently, national Rules Committees completed their first major overhaul of the summary judgment rule in forty years. Resulting amendments (awaiting Supreme Court and Congressional approval) are modest--appropriately so, since the Committees could not document that local experiments improved summary judgment proceedings materially. Consequently, the amendments will not mute the chorus of complaints about complexity, cost, and delay.
Instead, more than seventy years after its creation it is time for some realism and truth-in-labeling about federal summary judgment. We need to confront how it actually operates, adjust our expectations, and change our terminology. In truth, summary judgment is judgment without trial, a critical event in the course of federal civil justice. Determining whether the resolution of a lawsuit is appropriate demands substantial time, attention, and visibility from experienced lawyers and judges--without complaint or apology.
I
WHAT SUMMARY JUDGMENT DOES NOT DO
The term summary judgment creates false expectations. Summary judgment does
not
save lawyer time. It does
not
save legal fees. It does
not
significantly reduce court time or trials.
A. Lawyer Time and Fees
To seek or resist summary judgment, lawyers must discover--in advance--all the evidence needed for trial and more, including expert opinions. Discovery expense regularly serves as a poster child for everything wrong in litigation. Notably, about 50% of plaintiffs' lawyers, 47% of defense lawyers, and 44% of mixed practice lawyers believe "discovery is used
more to develop evidence for summary judgment
than it is to understand the other party's claims and defenses for trial." At summary judgment, lawyers cannot rely on what they expect witnesses will testify or on hope that brilliant cross-examination will persuade a judge and jury. Instead, they must follow sometimes arcane local rules on how to present and cite this "record." Both sides must file legal memoranda (the moving party also a reply) applying legal principles to disputed or undisputed facts, and explaining why their respective clients deserve victory. Summary judgment briefs are often longer and more complex than trial briefs.
Trial practice requires different skills, but summary judgment is neither shorter nor easier. Since lawyer time often drives legal fees, summary judgment is expensive for clients (for lawyers in contingent fee cases). But it is economically rewarding for lawyers who successfully bill for it.
B. Court Time
Summary judgment does not, overall, save court time. Yes, it may remove a multi-week patent or RICO case from the calendar; partial summary judgment may shave off an issue. But only a miniscule percentage of cases reach trial, so an actual trial is always a slim likelihood. For most cases judges, magistrate judges, and their law clerks collectively spend more time resolving summary judgment disputes and the ancillary motions they spawn than they would handling the trials. Someone must match up factual assertions; determine whether they are supported, adequate, and admissible at trial; decide whether a Rule violation justifies ignoring an asserted fact; fit all that into a legal analysis; and write an opinion that will withstand scrutiny.
C. Trial Numbers
About 2% of federal civil cases reach trial. Summary judgment resolves about 4%. No one knows how many of those would reach trial if summary judgment were denied. But most cases resolve without trial, and lawyers use summary judgment motions to decrease settlement value. It is unlikely that a significant number of cases where summary judgment is granted would proceed to trial if summary judgment were denied.
II
WHAT SUMMARY JUDGMENT DOES
A. Reassigning Work
Traditionally, much summary judgment preparation was delegated to junior lawyers. Associates accrued extensive billable hours conducting discovery and drafting statements of facts and legal memoranda. Experienced “trial lawyers” handled the cases that survived summary judgment and proceeded to trial. As trials have decreased, fewer lawyers possess skill and experience to try cases. But plenty of lawyers still acquire skill and experience with summary judgment.
When trials were frequent, trial judges--typically in the courtroom presiding--lacked solid blocks of time to parse facts, supporting documentation, and legal memoranda accompanying summary judgment motions, then produce written opinions. Without other options, earlier trial judges--often former trial lawyers--treated them summarily. After all, they make trial judging seem like appellate judging, writing opinions based on written records and briefs--not what earlier generations of trial judges signed up for as a steady diet.
These days, trials are fewer. But judges confront more summary judgment motions, other duties interrupt the time and attention they demand, and despite case-filing growth, Congress has not enacted omnibus judgeship legislation in twenty years. Congress has, however, provided funding for new magistrate judgeships authorized by the Judicial Conference. Judges confronting large caseloads without uninterrupted time to deal with complex summary judgment motions have two choices. They can ask magistrate judges to prepare recommended decisions, dispositions far easier to review because they condense and organize advocates’ positions into neutral resolutions. Or judges can (like busy magistrate judges) delegate the process to law clerks. Although responsible judges review their work-product carefully, law clerks (sometimes fresh out of law school) with little understanding of litigation’s practical aspects or how summary judgment works, then have first take at lawyers’ filings.
I don’t mean to paint with too broad a brush. Some experienced trial lawyers write their own motions or oppositions. Some judges assess motions independently, not referring them to magistrate judges. Some judges and magistrate judges take the laboring oar instead of law clerks. But good lawyers know you cannot write a decent motion or opposition in short time segments, with constant interruptions. Likewise, judges and magistrate judges cannot write decent opinions without large segments of uninterrupted time, an often unavailable luxury.
Finally, although federal court time for sustained attention to these motions is limited, it is
abundant
compared to state courts with severely overloaded dockets. State court defendants who believe they have a shot at winning summary judgment frequently remove their cases to federal court if there is jurisdiction. They know federal courts have more time and resources for these motions than beleaguered state courts.
So cases get removed and work moves around.
B. Delaying Outcomes
Over 56% of plaintiffs’ lawyers and 60% of defendants’ and mixed practice lawyers report federal judges
routinely
do not rule promptly on summary judgment motions. And 25% of all lawyers pick delayed motions rulings as the
primary
cause of delay (48% blame discovery). These perceptions are troubling.
Troubling, but not surprising. Promptness is in the beholder’s eye. Lawyers whose clients ask why their case has stalled can forget the time it took to prepare the motion or opposition and be unforgiving of the judicial officer who fails to give immediate endorsement to their position. Moreover, busy judges or magistrate judges cannot easily assemble sufficient blocks of time to produce a decision, especially when confronting many motions simultaneously. (Every issue looks like a “federal case” to unseasoned law clerks assigned initial drafting responsibility.) Ironically, the pending amendment exhorting judges to explain even summary judgment
denials
risks increasing delay in cases that otherwise would receive peremptory denials and advance promptly to trial or settlement.
C. Changing Stakes
Summary judgment motions change litigation stakes. By filing them, defendants delay recovery and increase plaintiffs’ legal expenses (or plaintiffs’ lawyers’ expenses in contingent fee cases). They also increase plaintiffs’ risk because, if plaintiffs lose, all is over except an expensive, delayed, and uncertain appeal. Therefore, plaintiffs’ case values decrease for settlement purposes.But if summary judgment is denied, then case values increase, for now that obstacle has been surmounted, and a judge has given quasi-approval to the plaintiff’s case. The Rules Committee observed this stakes-changing role, reporting that defendants’ lawyers “emphasize the importance of summary judgment as a protection against . . .
the shift of settlement bargaining that follows denial of summary judgment
.”
For pro se claims, the effect of summary judgment motions is dramatic. At trials, parties without lawyers can at least testify. Win or lose, they air their complaints publicly (subject to evidentiary rule hurdles) and receive a determination of their claims’ merits. Not so when defendants file summary judgment motions. Then, rule technicalities befitting Kafka can exclude factual assertions and prevent even a judge, let alone a jury, from considering the merits. The amendments address this pro se disadvantage. They say that when a party does not properly support or dispute a fact, a court may “give an opportunity to properly support or address the fact,” or “issue any other appropriate order.” The Advisory Committee Note admonishes: “Many courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed. And the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant.”
III
WHAT CAN WE DO ABOUT SUMMARY JUDGMENT?
The candid answer is, not much! Despite serious and prolonged attention to reform, the national Rules Committees could not devise significant simplifying changes for Rule 56. Local rules experiments have not provided demonstrable benefits that support national adoption. Strong economic interests make more than incremental change unlikely.
A. We Can’ t Eliminate It
Some academics say the Seventh Amendment makes summary judgment unconstitutional. Only the Supreme Court can resolve that challenge and, for over seventy years, there has been no hint of unconstitutionality. Many in the plaintiffs’ bar would like to be rid of it. There is some academic and empirical support for their grievances about how it is administered. But unless it is ruled unconstitutional, the defense bar and interests they represent will continue to support it strongly, for reasons I have mentioned. Few federal judges would support its complete repeal. Although it can be tedious and time-consuming, its availability undoubtedly deters some frivolous lawsuits. Barring an unexpected Supreme Court decision, summary judgment is here to stay.
B . We Can’t Reduce Complexity
Federal summary judgment is complex because federal lawsuits reflect the complexity of law and life. Statutes and regulations--employment, patents, securities--are lengthy, byzantine, and ambiguous. Facts on which claims and defenses depend can be convoluted, encompass many years, and raise difficult issues (sometimes cutting-edge) of economics, science, and technology. Summary judgment motions often deal with entire cases, asking judges to conclude that, even after considering all the plaintiff’s evidence, there is not enough to reach a jury. Since the constitutional right to jury trial is at stake, judges must assiduously avoid deciding disputed facts or inferences, and can only sift the record to determine what facts are material, and whether a genuine dispute exists. This exercise--paper-intensive and often tedious--contributes to complexity. But it is constitutionally required as a prelude to granting summary judgment instead of adjudication by trial.
Ironically, cases usually are
more
complex at summary judgment. At trial, experienced lawyers strategically simplify the facts for juries, and allow judges to narrow legal issues in jury instructions. Those same dynamics do not operate at summary judgment, at least with less experienced lawyers. They may lack talent or incentive to reduce issues, details, and arguments they have uncovered. “Every- thing-but-the-kitchen-sink” sometimes seems the rule-of-thumb.
Some lawyer economic self-interest feeds the complexity, perhaps unintentionally. But couple lawyers’ benefit in billing for summary judgment with clients’ fear of out-of-control verdicts; add today’s greater prevalence of cases threatening defendants’ financial stability; calculate summary judgment’s effect on settlement value; and you begin to see that complexity will not easily be exorcised.
The Supreme Court could make one simplifying change. It could eliminate
McDonnell Douglas
’s cumbersome requirements for assessing employment discrimination based on circumstantial evidence at summary judgment. The central question is whether there is enough evidence of discriminatory intent. Circuit courts recognize that
McDonnell Douglas
has no relevance to a jury considering the evidence. Neither do trial judges need a multi-step test that mostly complicates analysis and verbiage.
But summary judgment still will be complex, expensive, and time-consuming. We judges and lawyers need to change our mindsets about these characteristics and accept the inevitable. Constant efforts to simplify, through local rules and procedures, perversely drive up legal expense and shift bargaining positions in favor of those best able to meet the new demands.
C. We Can’t Prevent Work Delegation
Busy district judges must take indictment waivers, accept guilty pleas, resolve difficult sentencing issues, and conduct supervised-release-violation hearings. They won’ t find uninterrupted time to take primary responsibility for their summary judgment motions, except in select cases. Rules Committees, academics, and appellate courts tend to impose academic and appellate work models on trial judges by asking for detailed written elaborations of decisions. Until academic and appellate
schedules
(large uninterrupted blocks of time) apply to trial judges, they will continue delegating these responsibilities to magistrate judges and law clerks. Although critics occasionally bemoan how judges use law clerks or magistrate judges, lawyers generally seem satisfied with federal practices here.
Clients’ desire to avoid risk or delay payment, coupled with the revenue summary judgment generates, will continue to motivate defendants’ lawyers to file such motions. Law firm economics will lead to using junior lawyers with lower billing rates and uninterrupted time segments. Perhaps we can take a few steps to involve seasoned lawyers more, but generally delegation in law firms will continue.
D. What We Can Do
1. We Can Change Terminology and Expectations
In marketing, labeling and terminology are critical. The wrong label causes misunderstanding, failed expectations, and confusion. That is an apt description of summary judgment at work. As long as we call it summary, people will try to make it so, and complain when it is not. Or plaintiffs will interpret summary as meaning short shrift to their claims. The process is not summary, we cannot make it summary, and this is no place for a legal fiction.
Instead, we must change the label. That requires a rule amendment, but an easy one, and there is precedent. We recognized the “motion for a directed verdict” as a misnomer and changed it to “motion for judgment as a matter of law .” The Rules Committees should rename summary judgment a “motion for judgment without trial.” That is an accurate, even-handed description of the process. It may underline its gravity and help us stop expecting simplicity and brevity.
2. We Can Take It Out of the Back Room,
Make It Part of Public Litigation, and Elevate Its Status
In many districts, summary judgment now is largely back-office. Lawyers file materials electronically, without ever visiting the courthouse. Judges, magistrate judges, and law clerks read them in their offices and write decisions there, without ever visiting the courtroom. Parties and the public have nothing to observe, except electronic written exchanges. Too many--judges and lawyers--are comfortable with this “office practice,” and see face-to-face inter- change as a distraction and delay. Yet many judges rue the disappearance of public trials where the local bar, citizenry, and media used to watch law at work. When we do have civil trials, economics now keep bar and media observers away. But we can bring lawyers in the particular case back into the courthouse and demonstrate a human face to civil justice. Sound institutional reasons counsel it, ranging from public scrutiny, to court-bar relations, to maintaining federal courtrooms as an active presence in the community.
For example, judges could require conferences, after discovery is complete, to discuss where cases stand before summary judgment motions can be filed. At such a conference, the judicial officer could ask any lawyer who wants to file such a motion to identify specifically the key issues on which there is no factual dispute and invite a response to see if the list shrinks. After the conference, the judge could issue an order limiting the motion only to issues that remain. This practice might simplify some motions and briefs. Admittedly, it demands judicial officers’ commitment earlier, not merely at the opinion-signing stage. But most judges wouldn’t think of starting trials without final pretrial conferences and orders, because experience shows those procedures are helpful to effective and orderly trials.35 Determining whether to grant judgment
without
trial after all the evidence is compiled deserves similar preparation and judicial attention. Authority to conduct pre-summary-judgment conferences exists now.36 Doing it in person could encourage law firms to send well-qualified, well-prepared lawyers.
Moreover, judges could require oral argument on motions more often, demonstrating to the parties and the public that federal judges take seriously the determination whether cases should terminate without trial. Oral argument might get more skilled, experienced lawyers involved. In any event, face-to-face with a judge,lawyers of all experience levels are more reasonable in their positions. Even parties might attend, especially if their lawyers tell them this is likely the only public courtroom proceeding in their case. Judgment without trial surely deserves comparable public attention to adjudication by trial.
Trial lawyers could help by ending their denigration of motion practice and the lawyers (“litigators,” said sneeringly) who engage in it. It’s impolite, contrary to the economic interests of their firms, and insulting to the system of justice we all support.
3. We Can Just Say No
Some say expanding caseloads, together with Speedy Trial Act pressures in criminal cases, lead federal judges to prefer summary judgment over civil trials. Statistical studies show employment discrimination cases in particular generate a significantly higher share of summary judgments than other categories. But over 61% of defense lawyers and 54% of mixed practice lawyers believe “judges decline to grant summary judgment even when warranted.” (About 19% of plaintiffs’ lawyers agree; about 26% of plaintiffs’ lawyers disagree strongly.)
What should we make of data and criticisms like these? Obviously, there is no correct proportion of summary judgment grants; energized advocates always will disagree over a judge’s decision. Nevertheless, some propositions must govern.
First, judges are duty-bound to resolve legal disputes, no matter how close the call. But when facts or inferences are conflicting, judges are duty-bound at summary judgment
not
to decide them. As Chief Justice Rehnquist said in
Celotex
, the rule demands a balanced approach, requiring a grant of summary judgment when there is no material factual dispute and a trial when there is one. Still, just because summary judgment did not provoke reversal in a similar case when appellate judges found no issue of material fact, that does not necessarily mean that the trial judge must grant summary judgment in
this
case. The point is particularly pertinent in employment discrimination cases, where the critical issue--inference of discriminatory intent--is so fact-intensive. Judges should be slow to take inference questions away from juries, even when colleagues are affirmed in doing so.
Second, judges and magistrate judges must be careful that their chambers’ investment of substantial time and energy assessing motions does not subliminally counsel
granting
them so as to justify the investment.
Third, many districts no longer confront heavy trial calendars. And we know that even where summary judgment is denied, trial likelihood remains slim because other forces motivate settlements. So busy judges should resist consciously
any
tendency--even unintentional--to choose summary judgment over trial because of docket concerns.
Fourth, there is no constitutional right to summary judgment, but there is to a jury trial. Federal judges should not be reluctant to send parties to trial.
And so I say: when in doubt whether facts or inferences (not law) support summary judgment, judges should “just say no,” and let the case proceed to trial or settlement.
Now, given the intense struggle over the appropriate auxiliary verb in the pending Rule amendments (“must,” “may,” “shall,” or “should” grant), I don’t expect a full-throated chorus of hoorays to my suggestion. But a modest change of judicial tone here would be appropriate.
CONCLUSION
Summary judgment is complex--necessarily so, because of the nature of federal law and life, and the constitutional right to jury trial. Unlike trials, the process is tedious for trial judges and lawyers. But many are committed to it, it will not go away, and no miracle will cure its complexity. Experienced lawyers and judges, therefore, need to give full, serious attention to summary judgment motions. Although they cannot avoid delegating parts of their responsibilities, we need more of their experience in refining the motions and decisions they generate. These motions seek
judgment without trial
, and they should receive fitting prominence, energy, and attention accordingly. I suggest it is time to give an accurate label to this part of federal civil justice, bring it into public courtrooms where civil trials largely have disappeared, and showcase advocacy and judging skills there. And when in doubt on facts or their inferences, judges should “just say no.”
***
This piece was originally published in
The Green Bag
, and is republished here with the author's permission. The original piece, which includes footnotes, can be found at
https://www.uscourts.gov/sites/default/files/judge_hornby_summary_judgment_without_illusions.pdf.
