Summary judgment panel offers practical advice at AC05

Issue April 2005 By Andrea R. Barter, Esq.

At this year's annual conference, a coterie of law clerks joined seasoned practitioners in learning more about summary judgment standards in employment-related cases and comparing state and federal practice.

U.S. District Court Chief Judge William G. Young and Superior Court Judge Stephen E. Neel were joined by practitioners Patrick Bannon of Gadsby & Hannah, LLP and Harvey Schwartz of Rodgers, Powers & Schwartz, Boston in offering practical advice and insights to session attendees.

This seminar was one of 13 "Briefings" sessions offered at Annual Conference 2005, which presented thought-provoking discussions on timely matters affecting a variety of practice areas.

During the employment law program on summary judgment, all panel members readily agreed upon the need for thorough, accurate factual development and mastery of the record.

"A summary judgment motion rises and falls on the facts much more than the law," Schwartz said. "Much like in a game of rock-paper-scissors, good facts cover bad law."

The panel strongly urged attorneys to work on factual development through informal discovery methods rather than relying on depositions.

"There is nothing wrong with calling someone and asking to talk without a stenographer present," Schwartz said. "You have to go out and get the facts; the facts are not in your office. Sit in diners and people's living rooms. Then put the information into an affidavit."

As a subtle warning to junior associates who cut their teeth arguing motions for more senior attorneys, Young said, "The attorney must be fully conversant with the record. The judge is concerned with the case as a whole, not just the motion. Make sure you know [the record] and your opponent is citing it correctly."

The judges also expressed a wish for practitioners to "streamline" their motions for summary judgment. If adding deposition transcripts, give only the pages on point and underline the relevant text. If relying on out-of-state or unpublished authority, append those authorities.

Neel admitted that he groans when he receives a summary judgment motion because of the demands on the court's resources, but he "still allows a fair number of them." He also recommends streamlining the complaint.

"Why build in additional counts that will allow for two- to five-months' delay on a summary judgment motion the judge has to consider? Focus on the heart of your case," said Neel.

The judges also were concerned with court resources when discussing whether a moving party should file a separate brief if an opponent files a response containing evidence that may be inadmissible.

Calling such a separate filing "a terrible waste of time" and "unduly formalistic," the judges assured the audience that they are aware of controversial evidence and will avoid basing any rulings on challenged evidence if at all possible.

In closing, the judges also cautioned against a common defense practice of automatically filing a summary judgment motion to force the plaintiff to reveal his or her case.

"The practice really has a counter-effect," said Young. "If the plaintiff wins the summary judgment motion, it bolsters his case and educates him as to what his strengths are."

Neel said that the affidavits would become a great cross-examination tool for the plaintiff.

"Leave it to judges to get rid of non-issues at the final pretrial conference," said Young.