Summary Judgment Introduction

     The broad discovery allowed under the federal rules effectively permits the full development of all factual issues prior to trial. This was not the case under the writs, traditional equity practice, or code pleading, where both parties might discover important factual developments only in the midst of trial. The broad scope of discovery in federal cases was designed to prevent ‘trial by ambush,’ and to allow the parties to enter trial fully aware of the important facts.

     While the broad expansion of discovery was aimed at allowing trials to proceed more fairly, it has had a number of apparently unintended and unexpected consequences. One has been enabling parties to voluntarily settle the case through negotiation. Once the legal and factual issues have been fully exposed, the parties often are able to price the claims and resolve matters without the expense and delay of trial.

     Another development has been the expansion of summary judgment practice. Summary judgment did not exist in the common law but entered English practice in the mid-1800s as part of procedural reforms. Even then, it was generally limited to situations such as liquidated claims on certain forms of commercial paper. The use of summary judgment expanded over the next three quarters of a century and was used by many courts in the United States prior to the adoption of the rules. Again, however, use of the device at that time might be limited to certain causes of action or certain settings.

     Rule 56 expanded the use of summary judgment in the federal courts. Unlike many prior state versions, it allowed the use of the device without regard to the cause of action involved in the claim or counterclaim. That said, old habits die hard, and some time passed before the use of summary judgment took on its modern form.

     Ways to Establish That Summary Judgment is Warranted. The cases we are about to read will trace the development of summary judgment as a way of resolving lawsuits. Without spoiling any surprises that might await you, be on the lookout for two settings where summary judgment might apply. One is a situation where a fact is definitively established without any ability to contradict it that will prevent the other party from prevailing on its claim - 'proving the negative.' This fact can be established by a judgment in a prior case, an admission, an interrogatory answer, uncontroverted deposition testimony, or any other of the fruits of discovery. The other situation to look for is where we have a situation similar to a motion to dismiss under Rule 12(b)(6). A motion to dismiss looks to the burden of pleading; summary judgment can address much the same question at the burden of production stage, claiming that there is an absence of proof for essential elements of a claim. Look for situations where summary judgment allows the party to argue that taking into account all the evidence that has been unearthed through discovery essential elements of the cause of action simply cannot be established with the facts available.

     Partial and Complete Summary Judgment. Summary judgment can be partial or complete. It can be used to dispose of the entire lawsuit, or it can be used to reduce the scope of a claim or the level of damages. In a multicount case, for example, summary judgment might be used to remove one set of claims (say, treble damage antitrust or civil RICO claims) while not addressing others. It might be used against one party but not others. It might be used to exclude damages that occurred before a certain date or from certain causes that are outside the cause of action. Even though partial summary judgments do not dispose of the claim altogether, they can be very significant in terms of settlement negotiations. As a claim shrinks or is confirmed, bargaining positions and leverage shift. What's more, removing uncertainty (Will this claim for treble damages be in? Will there be a jury trial?) allows the parties to more precisely price their claims, which also enables settlement.

     Not For Defendants Only. Summary judgment can also be used by any party. It can be used by the plaintiff to establish a claim if the facts required to prove the claim are not contested. It can be used by a plaintiff to defeat a counterclaim. It can be used by the defendant in the same way to establish a counterclaim or to defeat a claim by the plaintiff.

     Standard of Proof. Another issue to look for in summary judgment is the standard of proof to be applied. When we look at the evidence involved, does the showing at summary judgment track the burden of proof that needs to be met at trial?

     Controversies. Summary judgment is now a critical part of modern American litigation practice, and summary judgment motions are routinely made in complex US litigation. Summary judgment allows the parties to avoid the cost and delay of trial in those situations when there is no dispute as to the material facts. In some ways, summary judgment can be viewed as a response to the relatively permissive entry to the courts allowed under American rules of pleading. It allows resolution without trial if after discovery the critical facts have not been developed.

     That said, summary judgment has been controversial. In the United States, as we will see later in this quarter, litigants have the right to a jury trial in many civil cases, which means they have a right to have ordinary citizens rather than judges decide the facts and determine what level of damages is appropriate. Some claim that summary judgment interferes with this right to a jury trial. As you read the following cases, ask yourself if there are among the cases decided by summary judgment some where a litigant might have a fair claim that a jury should have been allowed to resolve the case.

     Another controversy arises from a distributive element to summary judgment, since even though any party can make a motion for summary judgment, in reality they most often are made by defendants, who are the beneficiaries if the case is dismissed or reduced thanks to summary judgment practice. Some claim that this skews results toward defendants. Summary judgment also affects the negotiation of lawsuits, because the possibility that summary judgment might be granted will affect the risk-adjusted value of the plaintiff’s claim, and hence settlement results. A grant of even a partial summary judgment likewise will affect the value of the plaintiff's claim. In a world where summary judgment did not exist, and trial could confidently be expected in every case, plaintiffs would enjoy stronger bargaining positions.