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Changes coming to summary judgment

By Michelle Lore
Dolan Media Newswires

Minneapolis – Beginning next month, federal court practitioners may need to make some adjustments to their summary judgment motion practice.

The U.S. Supreme Court approved several amendments to Rule 56 of the Federal Rule of Civil Procedure back in April. Absent action from Congress before the end of this month, the amendments will automatically become effective Dec. 1.

The amendments are mostly procedural and don’t alter the summary judgment standard or burdens, but practitioners nonetheless need to be aware of the specific changes, including more stringent requirements with respect to record evidence citations.

“It seems they are trying to have the rules comply with existing law and also to clarify the [summary judgment] procedure so it’s not too much of a headache for both the participants and for the judge,” said Minneapolis federal court litigator David Gross. “Sometimes just having clear rules makes a big difference.”

National uniformity

A report issued earlier this year by the Judicial Conference Advisory Committee on Civil Rules indicates that the amendments to the federal civil rules are intended to improve the procedures for presenting and deciding summary judgment motions, make the procedures more consistent across the districts, and close the gap that has developed between the rule text and actual practice.

The amendments include:

Requiring that a party asserting a fact that cannot be genuinely disputed or can be disputed provide a “pinpoint citation” to the record supporting its fact position;

Recognizing that a party may submit an unsworn written declaration under penalty of perjury as a substitute for an affidavit to support or oppose a summary judgment motion;

Setting out the court’s options when a party fails to assert a fact properly or a party fails to respond to an asserted fact, including affording the party an opportunity to amend the motion, considering the fact undisputed for purposes of the motion (“deemed admitted”), or granting summary judgment;

Setting a time deadline, subject to variation by local rule or court order in a case, for the filing of a summary judgment motion;

Explicitly recognizing that “partial summary judgment” may be entered; and

Clarifying the procedure for challenging the admissibility of summary judgment evidence.

The committee also decided to return to the term “shall grant” in Rule 56(a) in describing the court’s task in ruling on a motion when no genuine dispute exists.

Federal procedure experts say that for the most part, the amendments clarify what’s already the practice in the majority of federal courts around the country.

“It’s much more of a restyling of the rule than a major overhaul in substance,” said Minneapolis attorney Patrick Arenz.

U.S. District Court Judge Donovan Frank said the amendments don’t contain any monumental changes that will alter summary judgment practice.

“This is mostly a reflection of good practice and cleans up some language,” he said. “To the extent that this clarifies things so there can’t be a misunderstanding, that can never be a bad thing,” he added.

But Minneapolis attorney David Herr, an authority on the rules of civil procedure, said the amendments do more than just codify what lawyers are already doing. “They may be codifying what judges should expect but aren’t getting now,” he said.

Herr added that while he agrees the amendments won’t dramatically change summary judgment practice, they will improve and streamline it.

“The rules are really designed to make it easier for the court to home in on whether it’s a real summary judgment situation or not,” he said.

Gross said one aspect of the amendments that jumped out at him is the explicit requirement that parties cite to something very specific in the record to support their positions. Seeing that requirement in the rule tells people that the courts are tired of briefs stating that the other side is wrong without explaining why, he said.

“You’re going to have to put our money where your mouth is and be very clear with the judge,” Gross said. “It’s a good message to send to litigants.”

Arenz agreed that the revised rule on pinpoint citations is more specific.

“The drafters acknowledge it’s probably an elementary point to make in that if you are going to bring a successful summary judgment motion, you really do need to direct the court to the evidence that supports you,” he said. “It’s more of a reminder than a change in practice.”

Admissible evidence

Gross also pointed to the clarification in the procedure for challenging the admissibility of evidence as being significant.

Whether you are fighting summary judgment or trying to get it, if you are relying on something “questionable” or something that wouldn’t be admissible for some reason, the opposing party can argue that it doesn’t count, he said.

“Generally people always thought that was true, but now it’s crystal clear,” said Gross. “You may have to win an evidentiary admissibility fight that you typically wouldn’t have until you get to trial.”

Arenz said the new rule on admissible evidence is more specific and flows better than the old rule, but agrees that it doesn’t change the practice significantly. “It goes more to a restyling of the rule,” he said.

Gross believes the overarching message in the amendments is that litigators need to spend more time on their case in discovery, making sure that they have admissible evidence they can cite to in order to show there are or are not material facts in dispute.

“You can’t rely on general attacks, you can’t rely on sweeping statements and you can’t rely on shaky evidence,” he said. “I think that was where the law was in any event, but this just makes it that much clearer.”

Michelle Lore can be reached at michelle.lore@minnlawyer.com.

One comment

  1. I remember a time when the moving party had the burden to prove that there were no material facts in dispute and that it was entitled to a judgment as a matter of law. See, Grams v Boss, 97 Wis.2d 332 (1980). Then the US Supreme Court ruled that all defendant had to do was move for summary judgment and the burden shifted to the non-moving party. Wisconsin adopted that rule in the Transportation Ins. Co. v. Hunzinger Construction, 179 Wis.2d 281 (Ct. App. 1983) case. It basically stood the SJ methodology on its head. It’s been downhill ever since. In federal court, they grant far too many motions for summary judgment.

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