Summary judgment and the vanishing trial: Implications of the litigation matrix

Stanford Law Review

Volumn 57, Issue 5, 2005, Pages 1329-1359

  Redish, Martin H ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 33646034908     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (108)

1. See infra Part I.
2. Summary judgment in the federal courts is made available by Rule 56 of the Federal Rules of Civil Procedure.
3. See discussion infra pp. 1334-35.
4. See EDWARD J. BRUNET, MARTIN H. REDISH & MICHAEL A. REITER, SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE §1.01, at 2 (2d ed. 2000).
5. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (holding that the defendant was entitled to discharge its burden of production on summary judgment by "pointing out" the lack of evidence to support the opposing party's case); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (holding that the plaintiffs in a libel suit had failed to meet the burden of proof to survive summary judgment because that burden must be identical to the heightened burden a plaintiff would ultimately bear at trial); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (holding that to survive a motion for summary judgment, the party bearing the burden of proof in an antitrust conspiracy suit must show more than a "metaphysical doubt as to the material facts" of a predatory pricing scheme).
6. See infra Part I. It should be noted that the connection between summary judgment and the vanishing trial may be more subtle than simply an increase in the number of summary judgment motions granted. It is quite conceivable, for example, that the expanded availability of summary judgment post-1986 may have influenced litigants' willingness to settle cases that they otherwise would not have settled.
7. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 DUKE L.J. 561, 568 (2001).
8. See infra Part III.B.1.
9. See infra Part III.B.2.
10. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 460 (2004) (footnote omitted).
11. Id.
12. See, e.g., Gillian K. Hadfield, Where Have All the Trials Gone?, 1 J. EMPIRICAL LEGAL STUD. 705, 706 (2004).
13. Galanter, supra note 10, at 461-64. Galanter notes that "the number of civil trials in 2002 was more than 20 percent lower than the number in 1962." Id. at 461.
14. See In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298-99 (7th Cir. 1995) (discussing heavy pressure on defendants in class actions to settle).
15. See RICHARD L. MARCUS, MARTIN H. REDISH & EDWARD F. SHERMAN, CIVIL PROCEDURE: A MODERN APPROACH 106-14 (3d ed. 2000).
16. Summary judgment in the federal courts is controlled by Federal Rule of Civil Procedure 56. However, the rule is facially silent - or at the very least, not particularly helpful - on many of the most controversial doctrinal issues to which the practice gives rise. See infra Part IV.
17. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
18. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970).
19. See infra Part III.B.1.
20. 477 U.S. 242, 255 (1986).
21. 475 U.S. 574, 586 (1986).
22. See infra Part III.B.2.
23. Galanter, supra note 10, at 461.
24. Id. (footnote omitted) (emphasis added).
25. William W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 465 (1984). Judge Schwarzer has served as the director of the Federal Judicial Center.
26. Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary Judgment, 100 YALE L.J. 73, 73 (1990);
27. see also John E. Kennedy, Federal Summary Judgment, 6 REV. LITIG. 227, 230 (1987) (noting that Celotex "signal[s] a significant change in attitude toward grants of summary judgment").
28. For my initial discussion of the content of the litigation matrix, see Redish, supra note 7, at 567-68. In that prior work, I explained that [b]y "matrix" I refer to the synthesis of the fundamental social, moral, political, and economic values society seeks to foster in shaping its civil litigation process. On occasion, those values will interact in a reinforcing manner because they will be simultaneously advanced by use of a particular procedure. In other instances, however, the values may be in tension or even in direct conflict because use of a particular procedure may simultaneously advance one value while undermining another. Id. at 568 n.20.
29. Note that while this listing is generally similar to that in my earlier work, it is not identical. See id. at 594. I now recognize the need for slight modification in the nature of the matrix.
30. See ROBERT P. BURNS, A THEORY OF THE TRIAL 13 (1999).
31. 424 U.S. 319, 335 (1976). The Mathews Court took into account three factors in its utilitarian calculus: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id.; see also Connecticut v. Doehr, 501 U.S. 1, 10-11 (1991).
32. See, e.g., Linda Beale, Note, Connecticut v. Doehr and Procedural Due Process Values: The Sniadach Tetrad Revisited, 79 CORNELL L. REV. 1603, 1642-43 (1994) (arguing that "the test requires subjective and impressionistic evaluations");
33. see also Jerry L. Mashaw, Administrative Due Process: The Quest for a Dignitary Theory, 61 B.U. L. REV. 885, 910-12 (1981) (criticizing a purely utilitarian approach to procedural due process).
34. See, e.g., Hanna v. Plumer, 380 U.S. 460, 475 (1965) (Harlan, J., concurring) (arguing that "the proper line of approach" in applying a rule is to inquire "if the choice of rule would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation"); see also Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 489-90 (1954) (arguing that the law is concerned with settling problems "emerging at the level of private activity with the gloss of private adjustments and maladjustments already put upon them").
35. See infra text accompanying notes 41-67.
36. See infra text accompanying notes 68-91.
37. See infra Part IV.
38. BRUNET ET AL., supra note 4, § 1.01, at 1.
39. Id. (footnote omitted); see also Robert K. Smits, Comment, Federal Summary Judgment: The "New" Workhorse for an Overburdened Federal Court System, 20 U.C. DAVIS L. REV. 955, 955 (1987).
40. FED. R. CIV. P. 50 (encompassing the concepts of directed verdict and judgment notwithstanding the verdict).
41. Recall that on neither summary judgment nor judgment as a matter of law motions is the court supposed to consider issues of credibility (except, perhaps, in the most extreme cases, which are not generally likely to occur). Thus, the inquiry made on the two motions is, for all practical purposes, the same. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
42. Anderson, 477 U.S. at 251-52.
43. 398 U.S. 144, 158 (1970).
44. See 42 U.S.C. § 1983 (2000).
45. Adickes, 398 U.S. at 152.
46. See id. at 154-55.
47. Id. at 158.
48. See infra notes 58-61 and accompanying text.
49. See generally David P. Currie, Thoughts on Directed Verdicts and Summary Judgments, 45 U. CHI. L. REV. 72 (1978) (arguing that the burden on non-burden-bearing movants should be identical at the summary judgment and directed verdict stages).
50. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
51. Id. (quoting FED. R. CIV. P. 56(c)).
52. Id. at 325.
53. See Currie, supra note 47, at 76-77. The Celotex Court did rely on its earlier conclusion in Anderson that the standards for summary judgment and directed verdict were fungible, Celotex, 477 U.S. at 323, without noting that Anderson concerned a very different issue. This reasoning would, in fact, seem to equate the initial movant's burden in the two situations. However, the Court's subsequent use of the more ambiguous "pointing out" language confuses the situation.
54. Martin Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 YALE L.J. 745, 749-50 (1974).
55. "It . . . appears to us that, on the basis of the showing before the Court in Adickes, the motion for summary judgment in that case should have been denied." Celotex, 477 U.S. at 325. This was so even though the plaintiff in Adickes, in response to the defendant's summary judgment motion, could produce not a single piece of admissible probative evidence on an essential element of her substantive claim. The Celotex Court's description of Adickes, then, brings to mind Groucho Marx's famous line when his wife surprised him in the company of his lover: "Who are you going to believe, me or your own eyes?"
56. Id. at 328 (White, J., concurring).
57. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998); Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1071 (6th Cir. 1993); Whetstine v. Gates Rubber Co., 895 F.2d 388, 394 (7th Cir. 1990); Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1172-73 (1st Cir. 1988).
58. See, e.g., Hunter v. Caliber Sys., Inc., 220 F.3d 702, 725-26 (6th Cir. 2000) (noting that the movant has the "initial burden of production and persuasion on the motion"); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) ("In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial."); Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993) ("It is not enough for the moving party to merely make a conclusory statement that the other party has no evidence to prove his case."); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) ("[T]he Adickes rule remains the general rule.").
59. Issacharoff & Loewenstein, supra note 26, at 75; see also Jeffrey W. Stempel, A Distorted Mirror, 49 OHIO ST. L.J. 95, 108 (1989).
60. FED. R. CIV. P. 11. Note that when Louis published his article in 1974 arguing for a burden on a movant for summary judgment, his concern about possible harassment of nonmovants could not effectively have been prevented by Rule 11. See Louis, supra note 52, at 749-50. Rule 11, prior to its substantial amendments in both 1983 and 1993, provided virtually no protection against harassing motions.
61. See FED. R. CIV. P. 11 (as amended, 1938).
62. FED. R. CIV. P. 56(f).
63. Jack H. Friedenthal, Cases on Summary Judgment: Has There Been a Material Change in Standards?, 63 NOTRE DAME L. REV. 770, 776 (1988).
64. Id.
65. All agree that if the movant for summary judgment would, in fact, have a burden of production at trial, it makes sense to require her to meet and shift a burden of production prior to obtaining summary judgment - in other words, to establish not only that a rational finder of fact could find for her, but that, absent persuasive counterevidence by the nonmovant, a rational finder of fact would have to find for her. This is for the simple reason that at trial, a party possessing a burden of production would have to do exactly that to obtain a judgment as a matter of law under Rule 50, and the entire purpose of summary judgment is to determine whether the trial would be unnecessary. See Currie, supra note 47, at 78-79.
66. Louis, supra note 52, at 750.
67. Celotex Corp. v. Catrett, 477 U.S. 317, 331-32 (1986) (Brennan, J., dissenting).
68. Melissa L. Nelken, One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40 HASTINGS L.J. 53, 66 (1988).
69. This issue is discussed in detail infra in Part III.B.2.
70. See discussion supra pp. 1334-35.
71. Where the evidentiary persuasion burden at trial would be more demanding - for example, a clear and convincing standard - the burden on a nonmovant for summary judgment who would have the burden of production at trial will parallel the trial burden. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) (one of the 1986 trilogy). This conclusion makes perfect sense from the perspective of the litigation matrix. The goal of summary judgment is to avoid unnecessary trial, and if the party with the burden of production would fail to reach the jury at trial because of a failure to meet the required evidentiary burden, that trial would be unnecessary.
72. See FED. R. CIV. P. 56(c) ("The judgment sought shall be rendered forthwith if [the evidence produced] show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."); see also, e.g., Burrell v. City of Mattoon, 378 F.3d 642, 646 (7th Cir. 2004); Roe v. Aware Woman Ctr. for Choice, Inc., 357 F.3d 1226, 1228 (11th Cir. 2004); Pasco v. Holly Springs, No. 03-60586, 2004 U.S. App. LEXIS 11210, at *2-*3 (5th Cir. June 8, 2004); Frick v. Wells Fargo & Co., No. 02-1535, 2003 U.S. App. LEXIS 12813, at *6 (10th Cir. June 23, 2003).
73. I say "virtually" free, because it should be recalled that, after Anderson v. Liberty Lobby, Inc., whatever standard is employed at summary judgment will also be employed at trial in a motion for judgment as a matter of law (JMOL). Anderson, 477 U.S. at 257. Hence a JMOL motion will provide no second line of defense should summary judgment fail. It is true that a losing litigant may still move for a new trial because the verdict is against the clear weight of the evidence. FED. R. CIV. P. 59. However, even if the high threshold imposed by this rule for overturning a jury's verdict were satisfied, the end result would simply be a new trial before a different jury, presumably just as uncontrolled as the prior one.
74. For a discussion of how the value of accuracy fits within the framework of the litigation matrix, see discussion supra p. 1336.
75. See BRUNET ET AL., supra note 4, § 9.06, at 260.
76. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
77. See Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2d Cir. 1945) (opinion of Frank, J.).
78. See Galloway v. United States, 319 U.S. 372, 403-04 (1943) (Black, J., dissenting) (describing the development of the "substantial evidence" test).
79. Arnstein v. Porter, 154 F.2d 464, 467 (2d Cir. 1946). The three-judge panel in Arnstein was made up of what may well have been the most intellectual grouping of judges in American history: Learned Hand, Charles Clark, and Jerome Frank. The majority opinion was written by Frank, over a vigorous and often bitter dissent by Clark. 154 F.2d at 475-80 (Clark, J., dissenting).
80. Id. at 467.
81. Id. at 469-70.
82. Recall that use of a particular standard for summary judgment would lead to use of the same standard on JMOL.
83. See discussion supra pp. 1337-38.
84. See, e.g., Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) ("[T]he mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party."); Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972) ("The rule of Arnstein v. Porter . . . that summary judgment may not be rendered when there is the 'slightest doubt' as to the facts no longer is good law."); see also Hayman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319 (2d Cir. 1975); Repp v. Webber, 858 F. Supp. 1292, 1300 n.13 (S.D.N.Y. 1994); Scott v. Paramount Pictures Corp., 449 F. Supp. 518, 520 (D.D.C. 1978). It should be emphasized, however, that where the plaintiff is able to present evidence undermining the dependent witness's credibility, and disbelief of that witness could satisfy the plaintiffs burden, presentation of such evidence would be sufficient to get the case to the jury. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000).
85. See Louis L. Jaffe, Res Ipsa Loquitur Vindicated, 1 BUFF. L. REV. 1, 11-12 (1951) ("[I]f on the slightest of evidence from plaintiff and the fullest of explanations from the defendant, the case is nevertheless put to the jury, the result is in effect a change in the burden of proof and, it may be, even in the basis of liability.").
86. 327 U.S. 645 (1946).
87. Id. at 649-51.
88. Id. at 650.
89. Id. at 652-53.
90. Id. at 653.
91. See, e.g., Jaffe, supra note 82, at 14-15; see also Arthur R. Miller, The Pretrial Rush to Judgment, 78 N.Y.U. L. REV. 982, 1107-08 (2003).
92. See discussion supra pp. 1337-38.
93. See Miller, supra note 88, at 1077; see also Note, Developments in the Law: The Civil Jury, 110 HARV. L. REV. 1408, 1413 (1997) (discussing "values that juries are intended to promote, including liberty, democracy, and political community"). Note, however, that I make no judgment here on the jury's value in so-called "complex" cases.
94. See generally Graham C. Lilly, The Decline of the American Jury, 72 U. COLO. L. REV. 53 (2001) (challenging the jury's value in complex cases).
95. Early in my scholarly career, I was highly critical of the civil jury. See Martin H. Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 NW. U. L. REV. 486, 502-08 (1975).
96. Rule 56(c) was amended in 1963 to insert the words "answers to interrogatories" as a category of information that may be relied upon in support of a summary judgment motion. FED. R. CIV. P. 56(c) advisory committee's note on 1963 amendments.
97. FED. R. CIV. P. 56(c).
98. In Celotex, Justice Rehnquist's opinion for the Court did rely in part on the words "if any" to support his conclusion that a movant need not provide supporting affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, this is a rather slender textual reed upon which to rely for so important a conclusion. In any event, purely as a linguistic matter, the words "if any" may arguably be construed to modify only the listing of affidavits, telling us nothing about whether a movant must rely on one or another of the other listed categories.
99. See discussion supra pp. 1336-38.
100. See Jack H. Friedenthal & Joshua E. Gardner, Judicial Discretion to Deny Summary Judgment in the Era of Managerial Judging, 31 HOFSTRA L. REV. 91, 116-21 (2002).
101. See discussion supra Part III.B.1.
102. For example, the Advisory Committee sponsored a conference at Brooklyn Law School on the subject of electronic discovery on October 27, 2000.
103. See, e.g., Francis E. McGovern, Toward a Functional Approach for Managing Complex Litigation, 53 U. CHI. L. REV. 440, 441 (1986) (noting "the significant commitment made by academics and leaders of the judiciary in encouraging judges to become more active litigation managers").
104. See discussion supra Part III.B.2.
105. See sources cited supra notes 10 and 12.
106. See discussion supra Part II for a detailed explanation of the concept and content of the litigation matrix.
107. Of course, to the extent one rejects one or more of the elements of my litigation matrix, one may well reach alternative conclusions as to how the procedural system should be structured.
108. See discussion supra Part III.