ISDLS - Authoritative Papers - Mediation: An Overview of Alternative Dispute Resolution, by Robert A. Goodin & Stephen A. Mayo

A familiar maxim in Anglo-American law is that “justice delayed is justice denied.” The phrase embodies a very significant, but often overlooked, point: that the success of a system of justice is dependent not only upon the fairness and reliability of the decisions ultimately produced by the judicial system, but, just as importantly, upon the system’s practical ability to render such decisions in a timely fashion.

An important factor in any judicial system’s success in resolving disputes in a timely fashion is its ability to develop mechanisms that enable the system to identify, accurately and efficiently, those cases that properly may be resolved expeditiously in a procedure short of a full trial.

The American legal system has developed a number of such legal mechanisms or tools. One such mechanism, which has a long common-law history, is a “demurrer” or, in the language of the Federal Rules of Civil Procedure, a “motion to dismiss an action for failure to state a cause of action,” by which a defendant to a lawsuit may obtain a speedy dismissal of a lawsuit prior to trial by establishing that, even if all of the facts that a plaintiff has alleged in its complaint are assumed to be true, the plaintiff, as a matter of law, still would not be entitled to prevail in the action. The demurrer can be a very useful procedure, permitting courts to weed out, at the outset of the litigation process, those cases in which the legal system need not and should not waste time and resources in conducting a trial aimed at resolving any factual disputes between the parties, because such factual disputes are, as a matter of law, irrelevant to the proper disposition of the case.

Although the demurrer is a valuable procedure, it cannot identify all, or even the great majority of, the cases that properly can be resolved without a full trial. As noted, a demurrer reaches only those cases in which a trial is unnecessary because the defendant is entitled to prevail even if all the facts alleged by the plaintiff are true. A demurrer cannot identify cases in which a plaintiff has alleged facts that would entitle it to prevail but has no substantial evidence to support its allegations, nor does a demurrer identify cases in which a trial is unnecessary because the defendant lacks sufficient evidence either to refute the plaintiff’s allegations or to support a defense to the plaintiff’s claim. To identify this larger category of cases that can be resolved expeditiously without a full trial, the American legal system has developed a procedure known as a motion for summary judgment, through which, in appropriate cases, either a plaintiff or a defendant may obtain a final and complete resolution of a lawsuit without incurring the often considerable delay and expense of a full trial.

2. SPECIFIC PURPOSES OF SUMMARY JUDGMENT PROCEDURE

A. Limiting abuse of the legal system.

In general, the legal system that exists in the United States places a high value on facilitating access to the civil litigation process, making it easy for individuals or businesses either to bring or to defend a civil lawsuit in court. Thus, a plaintiff may institute a lawsuit simply by filing a complaint alleging the existence of facts that entitle the plaintiff to relief, and, in response, a defendant may avoid an immediate judgment against it either by simply denying the existence of the facts alleged by the plaintiff or by alleging that other facts exist that constitute a defense to the plaintiff’s suit.

The ease with which a suit may be instituted or defended creates a significant potential for abuse by both plaintiffs and defendants. Thus, for example, a plaintiff may institute an action against a defendant even if it does not possess evidence to support the claim, anticipating that the burdens that the lawsuit will place on the defendant, in terms of the considerable time, expense, inconvenience and emotional distress inevitably incurred in litigating an action through a full trial, may lead the defendant to pay a sum of money to the plaintiff to settle the lawsuit even if the defendant is confident of ultimately prevailing after a full trial.

By the same token, a defendant who recognizes the validity of a lawsuit filed by a plaintiff and realizes that the plaintiff is likely to prevail after a full trial, may wrongfully deny the allegations of the complaint or improperly interpose an unsubstantiated defense, in the hope that the plaintiff, who may not be able or willing to await the final resolution of a full trial, will abandon the lawsuit altogether or be willing to accept a reduced amount from the defendant in settlement of the case.

One important purpose served by the existence of a summary judgment procedure is to prevent the misuse of the legal system for such vexation or delay, by minimizing the danger that one party will be able to use the threat of potentially long and expensive litigation as a tactic to harass or coerce an unwarranted settlement from the other party. As one federal circuit court decision explained: “[T]he function of a motion for summary judgment is to smoke out if there is any case, i.e., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.” (Bland v. Norfold & So. R.R. Co., 406 f.2d 863, 866 (4th Cir. 1969) (emphasis added).) Or, as another court put it: “Summary judgment is a marvelous instrument in expediting the administration of justice. It is the means by which causes or defenses with no real merit are weeded out without the hazard of a decision on an artificial situation described by artful pleadings, or without the cost in precious judicial time of a long protracted trial which ends with a determination that, on the facts viewed most favorably to a party, the claim or defense is not good as a matter of law.” (Bros. Inc. v. W.E. Grace Mfg. Co., 261 F.2d 428, 432 (5th Cir. 1958) (emphasis added).)

By affording a party who is subjected to a sham or frivolous claim or defense a means of obtaining an expeditious judicial disposition of the matter on the merits without trial, the summary judgment procedure enables such a party to resist being coerced into an unjust settlement simply to avoid the expense of extended litigation. In addition, the availability of a summary judgment procedure may be useful in deterring parties from proffering frivolous or sham claims or defenses in the first place.

B. Expediting the administration of justice.

Even when both parties to a lawsuit are acting in good faith, there will be many instances in which a party believes it can establish, or disprove, the facts set forth in the pleadings, but in which, upon investigation, it turns out that the evidence upon which the party has relied does not exist or is not available, or is of a type that is not admissible at trial. In addition, there also are many instances in which a party or its attorney may be mistaken both as to some of the facts and as to legal consequences of such facts, and in which the facts that the party may be able to prove will not be sufficient either to establish a claim or to constitute a defense.

In such instances, the summary judgment procedure makes a very substantial contribution to the efficient operation of the judicial process by enabling the courts to identify at an early stage of the litigation process those cases in which a trial is unnecessary and unwarranted because the actual evidence that a party possesses is insufficient to raise a triable issue of fact—that is, the evidence, if presented at trial, would not be sufficient to warrant submission of the matter to the jury but rather would call for determination by the court as a matter of law. Thus, as one decision observed: “Summary judgment has, as one of its most important roles, the elimination of the waste of the time and resources of both the litigants and the courts in cases in which a trial would be a useless formality.” (Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36 (9th Cir. 1975).)

By affording courts the means to determine which cases can be resolved, as a matter of law, without the need to resort to the elaborate machinery of the full trial process, the summary judgment procedure serves the interests of all litigants, providing a speedier decision in those cases amenable to resolution by summary judgment and reducing the overall trial court backlog so as to permit other cases to proceed to trial more expeditiously.

3. COMPATIBILITY WITH THE RIGHT TO TRIAL BY JURY

When the summary judgment procedure first was developed, a serious question was raised whether a trial court’s entry of summary judgment violated the nonmoving party’s right to trial by jury, since the case was fully resolved by the court and never submitted to the jury. The decisions have uniformly held, however, that the procedure does not violate the right to trial by jury, but simply provides a means for determining whether an issue, to be tried by a jury, exists. (Fidelity & Deposit Co. v. United States, 187 U.S. 315, 320 (1902).) As one member of the advisory committee that drafted the original federal rule on summary judgment explained: “[T]he rule does not interfere in the slightest degree with the right of trial by jury, because the court cannot . . . enter summary judgment if there is any issue of fact to be tried, and if the court erroneously orders a summary judgment, the right of appeal will protect the party.” (Proceedings, Washington Institute on the Federal Rules of Civil Procedure (1938) p. 176 [comment of Robert Dodge].)

Nevertheless, in order to assure that the right to jury trial is protected, courts generally take considerable care not to deny the non-moving party a full trial whenever it appears that a genuine issue of fact exists or that the resolution of the matter may depend upon the credibility of witnesses.

4. BASIC PROCEDURE UNDER RULE 56 OF THE FEDERAL RULES OF CIVIL PROCEDURE

A. Filing the motion.

(i) Timing.

As noted, the summary judgment procedure is generally available to either party to the action. Under the applicable federal rule of civil procedure (Rule 56), a plaintiff may file a motion for summary judgment as early as 20 days after the commencement of the action, and a defendant may file such a motion at any time. Thus, this procedure permits resolution of the action at the earliest stages of the litigation.

(ii) Contents.

In bringing a motion for summary judgment, the moving party maintains that, notwithstanding the allegations of the pleadings, there is no genuine issue of material fact that requires a trial—that is, no “triable issue of fact”—and that the moving party is entitled to judgment as a matter of law. To support its position, the moving party may rely upon a variety of materials, including the pleadings in the case, transcripts of the depositions of the parties or potential witnesses, answers to interrogatories or affidavits or declarations of potential witnesses. The rules generally require the moving party to attach the relevant material as exhibits to its summary judgment motion.

Although the federal rule permits a summary judgment motion to be made “with or without supporting affidavits,” because the general purpose of summary judgment is “to pierce the allegations in the pleadings and permit consideration of the dispute’s merits at an early stage of the proceedings, the claimant, as a practical matter, almost always will file supporting affidavits.” (10A Wright et al., Federal Practice and Procedure (1983) § 2719, p. 3.) Whenever the moving party does file supporting affidavits or other evidentiary material (such as depositions, answers to interrogatories, or admissions), the opposing party may not rely simply upon the allegations or denials of its pleading, but must file its own counter-affidavits or evidentiary material in order to establish that there is a triable issue of material fact that precludes the granting of summary judgment.

Because the purpose of a summary judgment motion is to determine whether, were the case to go to trial, there would be sufficient evidence to warrant submitting the issues to the jury, the affidavits or other evidentiary material must refer to evidence that would be admissible at trial. This is an important limitation upon both the moving and opposing parties, and permits the moving party to uncover sham or frivolous claims or defenses, or allegations that, although made in good faith, cannot be proved in court.

B. Opposing the motion.

Under Rule 56, a motion for summary judgment must be filed at least 10 days before any hearing on the motion, and thus the opposing party generally will have at least 10 days to file any opposition to the motion. The rule also permits the opposing party to submit an affidavit requesting a continuance to allow for further discovery in order to enable that party to respond to a summary judgment motion.

C. Summary judgment hearing.

(i) Form of hearing.

Although the federal rules do not preclude a trial court from ruling on a summary judgment motion on the basis of the written submissions alone, that is, without a hearing or oral argument, as a general rule courts routinely permit oral argument on a summary judgment motion, and, in some instances, may permit a party to present oral testimony at the hearing in support of or in opposition to the summary judgment motion.

(ii) Materials considered.

In passing on a summary judgment motion, the court considers all of the materials properly presented in support of or in opposition to the motion, including pleadings, depositions, answers to interrogatories, and affidavits; as noted, the court may consider any material that would be admissible at trial. The court’s decision usually is based solely upon the written materials accompanying the motion or opposition, but under the federal rules (see Rule 43(e)) the court is authorized to admit and consider oral testimony. (One prominent commentator has cautioned, however, that in this context a court should use oral testimony “sparingly and with great care,” because the purpose of summary judgment “would be compromised if the hearing [on the summary judgment motion] became a preliminary trial.” (10A Wright et al., supra, § 2723, p. 62.).)

(iii) Standard for granting or denying summary judgment.

Under the federal rule, a court will grant summary judgment in favor of the moving party if it finds 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;” if it does not so find, it will deny the motion. In determining whether there is a “genuine issue as to any material fact,” however, the court does not summarily try the facts itself, but simply determines whether a triable issue of fact exists.

In other words, “a party moving for summary judgment is not entitled to a judgment merely because the facts [it] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial. . . . [I]f the evidence presented on the motion is subject to conflicting interpretations, or reasonable [persons] might differ as to its significance, summary judgment is improper.” (10A Wright et al., § 2725, pp. 104-109.)

In general, the party moving for summary judgment has the burden of proving that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law; the burden generally is viewed as a stringent one, and any doubt as to the existence of a genuine issue of material fact will be resolved against the moving party. When the determinative issue in question is one on which the non-moving party bears the burden of proof at trial, however, the moving party may satisfy its initial burden by relying upon the pleadings and upon an allegation that the non-moving party has failed to establish an element critical to its case, thus shifting the burden to the non-moving party to go beyond the pleadings and designate specific facts establishing that there is a genuine issue for trial. (Celotex Corporation v. Catrett, 477 U.S. 317 (1986).)

(iv) Effect of ruling upon summary judgment motion.

When the trial court grants a summary judgment motion, the ruling operates to terminate the case on the merits and results in a judgment equivalent to a judgment that is entered after trial and verdict. Unless reversed on appeal, such a judgment will operate as res judicata, barring any further litigation of the claim.

By contrast, when the trial court denies a motion for summary judgment, the ruling is not a determination of the merits but is simply a determination that there is a material fact to be tried, and thus the ruling does not preclude either party from raising at trial any of the issues dealt with by the motion.

5. PARTIAL SUMMARY JUDGMENT OR SUMMARY ADJUDICATION OF ISSUES

Under the applicable federal rule and the governing rules in many states, the summary judgment procedure may be used not only when the entire case may be disposed of, as a matter of law, without trial, but also where a party contends that “a part of” a claim or defense can and should be resolved definitively by the court through the summary judgment procedure prior to trial. (See Rule 56, subds. (a), (b), and (d).) The court’s authority in this regard generally is referred to as the power to grant “partial summary judgment” or to grant “summary adjudication” of an issue.

Initially, the authority to grant partial summary judgment was limited to cases in which the court could determine the issue of the defendant’s liability as a matter of law, but the issue of the amount of damages presented factual questions to be resolved by the jury. More recently, however, the applicable rules have expanded the court’s authority so as to permit the trial court, on the basis of the evidentiary material presented through the summary judgment procedure, to specify individual material facts that appear “without substantial controversy,” and to summarily adjudicate any discrete issue, such as an alternative theory of recovery or a defense.

As a result of this expansion of the procedure’s applicability, the summary judgment procedure now can be quite useful even when a party’s motion for “complete” summary judgment must be denied, because the court is permitted “to salvage some results from the judicial effort involved [in such a denial]” (Yale Trans. Corp. v. Yellow Truck & Coach Mfg. Co., 3 F.R.D. 440, 441 (C.D.N.Y. 1944) by withdrawing sham issues from the case and specifying those material facts that cannot genuinely be controverted. Thus, even when the summary judgment procedure does not succeed in disposing entirely of a case without trial, it can limit the issues that remain to be resolved, thereby expediting further litigation and often facilitating the ultimate settlement of the case.