Summary Judgment misses the “point-counterpoint”

In a victory for whistleblowers, and all parties who believe in civil jury trials, the federal Advisory Committee on the Rules of Civil Procedure has rejected a series of proposals that defense lawyers had advanced to modify the rules for "summary judgment."  

Rule 56 of the Federal Rules of Civil Procedure (FRCP) permits judges to grant "summary judgment" when they find that there is no "genuine dispute" as to any "material fact."  All inferences from the facts are supposed to be drawn in favor of the non-moving party so that the jury can make the decision in all cases where the facts permit more than one conclusion. Whistleblower advocates, and other civil rights attorneys, have long complained that judges are abusing summary judgment by taking the boss’ word that an adverse decision was not made on account of discrimination or retaliation.  Companies can then avoid a jury trial, and get a case dismissed with an order finding they are not liable at all. Many employment and whistleblower cases are decided on appeal on the issue of whether the record supports an inference that the boss is lying to cover up discrimination.

Defense lawyers, however, were hoping they could change the rules of summary judgment so they could win even more cases.  Their major proposal would have them list all the facts they claim are "undisputed."  It would then be up to the employee’s attorney to explain, with citations to the record, how they contest each and every factual claim.  If they failed to respond to one, or if the judge found their response was not sufficiently specific, then they could lose the whole case. In districts where local rules already require "point-counterpoint," civil rights attorneys complain that the process is slanted in favor of the big defense firms who have the staff to look through voluminous records to find points that are burdensome to oppose.  The result has been that under "point-counterpoint," more cases are dismissed at summary judgment without ever getting to a jury.

Meeting today in Chicago, the federal Advisory Committee rejected this defense proposal.  Whistleblowers are indebted to the American Association for Justice (AAJ) and the National Employment Lawyers Association (NELA) for mobilizing public comment against the defense bar proposals. I am indebted to the AAJ’s John Vail for alerting me to today’s decisions.

The Advisory Committee also rejected a proposal to say that entry of summary judgment is mandatory when a judge finds there is no "genuine dispute." Currently, summary judgment is discretionary, and judges can decline to enter a summary judgment if they think a case should go to a jury.  Even though judges normally find a "genuine dispute" in cases where summary judgment is denied, defense lawyers wanted to take away a judge’s option of declining summary judgment as a matter of discretion.  Defense lawyers also wanted discovery of all communications between lawyers and their experts.  The Advisory Committee rejected this proposal to keep discovery focused on the conclusions, and not on the communications.  However, discovery will be permitted of communications of experts who are employed by one of the parties.

While civil rights and whistleblower interests will benefits from today’s decisions, a new hurdle approaches.  The Advisory Committee has scheduled a major retrospective on the civil rules.  It is scheduled for May 10-11, 2010, at Duke University. New York Judge John G. Koeltl will lead the event.  A series of papers and conferences are planned on discovery, electronic discovery, pleadings and motions, and other topics.  By opening the door to a larger revamping of civil rules, the Advisory Committee has set the stage for a new round of advocacy and public participation on what we need to preserve our civil rights.



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