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Jacqueline M. Sullivan, RPR

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ADMINISTRATIVE OFFICE

OF

THE UNITED STATES COURTS

ADMINISTRATIVE COMMITTEE ON CIVIL RULES

HEARING

NOVEMBER 17, 2008

WASHINGTON, D.C.

REPORTED BY JACQUELINE M. SULLIVAN

Proceedings reported by machine shorthand, transcript produced

by computer-aided transcription.
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P R O C E E D I N G S

JUDGE KRAVITZ: Good morning everyone, on this bright,

chilly day in Washington, D.C. There are a couple of things I

need to say at the outset, most important of which is that Gail

Mitchell needs your lunch order. That should be your first

order of business, and she'll come around and pick them up,

because she has to get the order in by 9:30. So you've got a

little bit of time to do it.

We're going to go around the room and introduce

ourselves so that we are familiar to our guests who are here to

testify on both Rule 56 and 26. The committee is enormously

grateful for those who have taken time out of their busy lives

to comment in writing and those who have chosen to come here

today to testify. We are very much appreciative of your

willingness to take time out of your lives to give us your

wisdom.

And we'll have two more hearings: one in San Antonio

in January, and another in San Francisco in early February. We

have a fair number of people who wish to testify. John Ravea

tells me that if everybody stayed about fifteen minutes total

each, we could get this done in time to have our meeting this

afternoon, so I guess I'd ask those who are testifying if they

could keep their remarks to approximately ten minutes or so, you

should assume that we've read your written statement, and then

that I'll allow for five minutes or so for questioning. I'm
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going to be a little bit more lenient at the beginning. A lot

of our questions are early on here. That is it.

My name is Martin Kravitz. I have the great privilege

of being the chair of the Civil Rules Advisory Committee. I'm a

district judge from Connecticut.

MR. McCABE: I'm Peter McCabe.

JUDGE COLLOTON: Steve Colloton, United States Circuit

Judge for the 8th Circuit, from Des Moines.

MR. KEISLER: Peter Keisler, attorney with Sidley

Austin here in Washington.

MR. MERCK: Tad Merck. I'm with the civil division

here at the Department of Justice.

JUDGE JOLSTICE: Michael Jolstice. I'm a judge on the

Eastern District of Pennsylvania court.

MR. GENSLER: Steve Gensler, University of Oklahoma

Law School.

MR. MARCUS: Rick Marcus, attorney, associate reporter

to the committee.

JUDGE WEDOFF: Gene Wedoff. I'm a bankruptcy judge in

Chicago.

JUDGE ROSENTHAL: Lee Rosenthal. I'm a district judge

in Houston, Texas, and I'm the chair of the standing committee.

MR. RABIEJ: John Rabiej. I'm from the Rules

Committee support office.

MR. ISHIDA: James Ishida.
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MR. BARR: Jeff Barr, attorney, with Peter McCantz

also.

MR. WILLGING: Tom Willging, researcher with the

Federal Judicial Center.

MS. BRIGGS: Laura Briggs, Federal District Court in

Southern District of Indiana, and a clerk representative.

MAGISTRATE JUDGE HAGY: Chris Hagy, United States

magistrate judge from the Northern District of Georgia.

JUDGE SHEPARD: Randy Shepard, Chief Justice of the

Indiana Supreme Court.

MR. VARNER: Chilton Davis Varner, with the law firm

of King & Spalding.

MR. GIRARD: Daniel Girard, civil practitioner from

San Francisco.

JUDGE CAMPBELL: Dave Campbell, district judge from

Arizona.

MR. HEIM: Bob Heim, lawyer in Dechert LLP in

Philadelphia.

JUDGE WOOD: Diane Wood. I'm a circuit judge on the

7th Circuit in Chicago, Illinois, and on the standing committee.

MR. VALUKAS: Tony Valukas. I'm a lawyer with the law

firm of Jenner & Block in Chicago.

PROFESSOR COOPER: Ed Cooper, University of Michigan

Law School, reporter for the committee.

JUDGE KRAVITZ: So we're back around. One reminder
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for those who will be testifying: If you could speak into the

microphone, that would be great. It's quite a long table here

and we want to hear your remarks. If there's anyone here who

needs to leave early, we do have a list of those who will

testify. Is there anyone who needs to be moved up earlier in

the list? Then just come on up and let me know that and we'll

try to accommodate you, and we have.

Van, do you want to introduce yourself?

MR. RANWELL: Van Ranwell. I thought I had spilled

coffee on the way in. Since I'm from the West Coast, I figured

I'd arrive late.

JUDGE KRAVITZ: All right. So I think Claudia

McCarron is our first witness. Welcome.

MS. McCARRON: Good morning.

JUDGE KRAVITZ: Mark, each of the witnesses could

simply just identify where they practice or what organization

they're speaking on behalf of, if they are speaking on behalf of

an organization, and then jump in.

MS. McCARRON: Thank you. Good morning, Judge

Kravitz, members of the committee. My name is Claudia McCarron.

I'm a partner and general counsel for the law firm of -- can you

hear me well enough?

JUDGE KRAVITZ: Yes.

MS. McCARRON: I'm a partner and general counsel for

the law firm of Nelson, Levine, deLuca & Horst. Our office is
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located just outside of Philadelphia in Blue Bell, Pennsylvania.

We provide primary litigation services to the insurance

industry. We represent the industry in class actions, coverage

litigation, extra considerable liability matters, as well as

subrogation matters. For that reason, we're frequently involved

in lawsuits both as plaintiffs and defendants.

I personally have been involved in litigation for 25

years. I spent the first three years of my career as a law

clerk for the late Honorable Judge Hewitt of the Eastern

District, and since that time I have represented individuals,

other types of commercial entities, both as the plaintiff and

the defendant, but represented the insurance industry

exclusively for the last seven years. I'm not here on behalf of

any particular organization. Although in the interest of full

disclosure, I will tell you that I'm a member of DUL and

defense-oriented organizations, as well as the Insurance

Committee of the American Bar Association.

Thank you for the opportunity to be here today and

comment on proposed changes to Rule 56. Over the course of my

career, I think I've prepared, reviewed, and responded to

countless motions for summary judgment, and one of the reasons

why I wanted to speak with you today, in addition to my written

comments, which I'm not going to repeat, is that I was surprised

to see in the commentary submitted to the committee criticism of

the proposed procedure for use of a statement of material fact
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in future motions for summary judgment. For some time the

Middle District of Pennsylvania as well as by individual order

in the Eastern District and Western District of Pennsylvania,

the courts that I'm admitted to, the procedure has been in

effect, and so I've had an opportunity to prepare or respond to

motions for summary judgment that include a requirement that

there be a statement of material facts in addition to a brief,

and that the opposing party respond to it. And obviously I've

also had the opportunity to be involved in motions where no such

requirement was in place. I have given an example in my written

testimony of the problem that I see developed and that I've

probably been at fault for myself.

Insurance coverage matters frequently begin with both

sides believing that the matter can be resolved on cross-motions

for summary judgment, both parties come in and tell the Court

that this is a case that's appropriate for cross-motions for

summary judgment, and yet when we finally get to the point where

we've completed discovery and we file our briefs, if there is no

requirement in that court for a statement of material fact and

for a response to that, I find that the advocate in each lawyer

makes it nearly impossible to file a brief that really clarify

the points of agreement and disagreement, but when that

procedure is in place for a statement of material fact by each

party, real clarity can be achieved. Without it, I, in the last

six months, I've had a colleague standing in my doorway with an
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order in his hand saying, you know, that coverage matter we've

been talking about, well, the cross-motions were denied, we're

not really sure what we're going to try, and I think that that

is generally a failure of the attorneys, because obviously they

haven't done a good job of convincing the Court that there is no

genuine issue of material fact. I have had the experience in

the Middle District of being faced with a 50-page brief and an

opponent who failed to respond to my statement of material fact.

In that case, of course as a moving party I asked the Court to

simply grant my motion, but a wise judge simply issued an order

directing the opposing party to reply to a very simple statement

of material fact, which cut through 50 pages of briefing, got us

down to the salient point, and resolved the case, which was

again an insurance coverage matter on the point of law that

really mattered, but fundamentally there was not a disagreement

as to the material facts of the case.

I think one of the criticisms that's been leveled by

the commentators who have written to this committee was that the

use of the statement of material facts will result in motions

that arrive in boxes. I get complaints that arrive in boxes

with that number of exhibits and the exhibits for a trial that

would take place following a motion that arrive in a box will

fill a room. I have worked in large firms; I've worked in

smaller firms. I understand the burden when you see that box

come in the door, but as long as the Court is willing to work
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with the individual lawyers and give them the necessary time to

work through those very large exhibits, overall it seems to me

that's the better way to resolve a case than asking twelve

citizens to share your misery as you go through a trial with

many, many, many more exhibits. I also, my experience is, as a

practical matter, those motions have not arrived in boxes in my

office because the -- these are not requests for admissions,

which can be burdensome. These statements are an intention by

both parties to get down to the material facts of the case. And

so as an advocate you lose the advantage of the statement if you

burden it with subsidiary facts. Used properly, it will hone

the case down to its essential factual components. That's my

principal comment on use of that on a motion for summary

judgment.

I would like to speak briefly to the controversy

regarding the change from "shall" to "should," and it is my

belief that the more appropriate phrasing for the rule is to

change "should" to "must."

My initial reaction simply as an advocate is that I

never misunderstood the meaning of" shall" in any order that I

received from the Court. But I realize that maybe the ship has

sailed on whether or not "shall" was ever ambiguous, but I do

think that 90 percent of the advocates out there believed, until

this most recent controversy, that if they could demonstrate no

genuine issue of material fact and that the law entitled their
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client to prevail, that they were truly entitled to judgment.

The interjection of a discretion to deny an otherwise

meritorious motion suggests a kind of arbitrariness that I

believe will breed distrust. I've reviewed the cases that were

cited to support the use of the word "should." Personally, I

think in most of those cases, as I read them, in my humble

opinion, that the holding of those cases was not so much that

there was discretion to deny, but that those cases might just

have easily been decided by finding that a material issue of

fact existed. The leading case which was cited to support the

change to "should," Kennedy vs. Siless, I reviewed it again last

night and it does talk about a change in facts, which again says

to me that the case in modern terms might have been decided as

one in which summary judgment was inappropriate simply because

there were terrible issues of fact, but I also think the flavor

of that opinion suggests a generally unfavorable view of summary

resolution of cases. And if that were the view in 1948 when

Kennedy was decided, surely that position was swept away in 1986

by Celotex and that line of cases.

I took the opportunity after submitting my written

statement to look at some of the cases that have been decided

since December 1, 2007. This is not part of my written

testimony, but I was curious to see whether or not my concern

that the use of the word "should" instead of "shall" and instead

of "must" has led to a greater number of discretionary denials
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of the motion for summary judgment, and I must tell the

committee frankly, I did not find that, and I think that the

reason is that these changes, to which you are all very

sensitive, are not yet in the collective consciousness of the

ordinary practitioner. When you look at the cases that have

been decided in the last year or just about a year, frankly,

there are some cases that don't acknowledge the amendment,

they're still quoting the old one, so the rule books haven't

been replaced yet, and so for that reason there hasn't been an

effort to seize upon a change in language.

There are other cases in which the courts acknowledge

the change in language and yet prefer to use the word "shall,"

so what the Court said in their opinion acknowledged the change

in language, nevertheless, outside of quotes, write about the

standard for summary judgment this way: they say summary

judgment shall be rendered, quote, and then pick up the standard

that's in the rule, so to me that's an indication that the view

of dimension, there's a number of cases out of Hawaii, Illinois,

Minnesota, use summary judgment as a mandatory remedy when the

two prongs of the test have otherwise been met. In other words,

there's no genuine issue of material fact. As a matter of law,

the litigant's entitled to prevail, so you'll see cases that use

"shall," summary judgment is required, summary judgment is

mandated, and that may lead some people to say that there's no

need for concern, but I think there is still a need for concern
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about the change in language. In none of the cases that I've

reviewed was discretion really an issue. In other words, the

motion was granted. There certainly was no request from the

nonmoving party for a discretionary denial, and so the issue was

never squarely presented, but I do think the concept that a

discretionary denial is a realistic alternative when a motion is

pending before the court will enter the lexicon of nonmoving

parties, and I say that because I have in my office what is a

common desk book. It's called Federal Rules of Civil Procedure

Handbook. It's a West publication, and the edition -- I've had

it in my office for years. The edition that came after 2008 has

an entirely new discussion following Rule 56, and that

discussion is entitled discretion of the district court. And

this is what it says about the December 1st amendments. The

2007 amendments emphasize the breadth of the district court's

discretion when resolving a motion for summary judgment. I

don't think that that is/was part of the general thinking of the

bar when faced with a summary judgment motion. I think as

commentators like this, the commentator picked up on the change

in language. There will be more requests for discretionary

denial. We're pleased to go to trial on a case that was

inadequately prepared and greater pressure on the district court

as an institution to let those cases go forward.

I thank you very much for your time. It's been a

privilege to be here today.
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JUDGE KRAVITZ: Do any of the committee members have

any questions that they wish to direct to Ms. McCarron? Go

ahead.

MS. McCARRON: Good morning, Judge Baylson.

JUDGE BAYLSON: I want to thank you very much for your

letter and articulate reviews, and we have struggled with this a

great deal. I'm not sure I'm going to say this exactly in the

right order, but there are several thoughts that have been

discussed and I'd like your views on them.

First of all, as you say, complaints come in boxes as

well as motions come in boxes. And sometimes judges get motions

for summary judgment that are so -- they're -- the motions are

more complex than the case, and sometimes we feel we could try

the case in less time than it would take to figure out whether

or not there are disputed facts. Having a trial and just

calling witnesses to the stand would be a more efficient way to

deal with the case than to struggle through pages and pages of

depositions and so forth, including what it takes to put

together an opinion that will get past the 3rd Circuit

hopefully. That is one reason I think warrants the use of the

word "should." If you use the word "must," some judges would

feel that, oh, I've got to go through these papers because if

there are no disputes, I must grant summary judgment so I'm

going to have to put the trial off for however long it's going

to take me to go through these papers. Why in that situation
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would it be better to have "must"? And a concomitant to that

is, if the word is "must," then, and we're all cognizant that

we're in an era for whatever reason or many reasons of declining

trials, but the use of the word "must" there is going to cause

trials to decline even further.

MS. McCARRON: Thank you, Judge.

I'm concerned about declining trials because I have a

lot of young lawyers working for me who have very little

opportunity to try cases. My initial reaction is, and as a law

clerk I was on the receiving end of filings by big law firms

that seemed to be overwhelming, so I do have some sympathy for

the burden on a single judicial chambers with a judge, and I

guess now it's three law clerks, but I generally think that when

a motion arrives with that much factual material, there are

issues of fact, and that summary judgment certainly shouldn't be

a substitute for -- it shouldn't become trial in a paper record,

but as soon as it becomes that detailed, there are going to be

credibility questions, there are going to be -- there are going

to be issues of fact, and that just as a matter of an appearance

of even-handedness, is it better to decide that particular

motion because of issues of fact that can't be resolved than to

institutionalize a right for arbitrary denial? And that's just

my personal opinion, but I believe that the bar will view a

denial, a discretionary denial, and litigants even more than the

bar, as something that is arbitrary and unpredictable. If you
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lose a motion because the judge disagrees with you on the law or

because the judge believes you and your opponent have not done a

fair job of identifying the undisputed facts that can support a

judgment, everyone can understand in a lawyer-like way how that

happened. It's much more difficult to communicate a

discretionary denial to litigants.

I also think that there are opportunities for partial

summary judgment in these circumstances, and I do wonder what

would happen if the Court, and oral arguments are a disappearing

animal as well, but if the litigants knew from an oral argument

or communications to the Court that they had not done a good

enough job and that this case was not going to get resolved on

summary judgment, whether or not they would do a better job of

trying to achieve that clarity, and in the end there are cases

that will be urgently needed to try, there will be injunctive

matters, and there's just going to be an institutional pressure

because of that to resolve the motions, but I think it is better

to resolve the motions on one of the two existing prongs than to

invoke a discretionary denial, either because of time pressure

or just the overwhelming bulk of the record that's submitted.

JUDGE KRAVITZ: I thank you very much, Ms. McCarron.

MS. McCARRON: Thank you very much.

JUDGE KRAVITZ: Welcome, sir.

MR. SEYMOUR: Thank you.

JUDGE KRAVITZ: We have your written statement.
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MR. SEYMOUR: Thank you. I apologize for not having

it done early enough. This was actually finished about twenty

minutes to four this morning.

I'd like to say just a word of self-introduction.

I've been practicing law largely in the field of civil rights

and employment discrimination since I left the government in

1969, so it's a little shy of 40 years now. I co-authored a

book for the American Bar Association section of labor

employment law, which required that I read and analyze virtually

all of the published employment law decisions handed down by the

appellate courts, and so the perceptions I'm making are based

upon reading an ungodly number of decisions.

My concern, the testimony here is chiefly on the

question of the right where summary judgment is granted, and the

suggestion of the last witness is a good segue into this

testimony. The problem that I see in looking at decision after

decision is that it's clear that there are many cases that are

filed baselessly or the defenses are baseless. We need to have

a Rule 56 to dispose of those. The problem is that far too

often I see cases, and this is my judgment, but I see cases that

ought to have been resolved by a jury but are instead resolved

by a judge taking a rule of thumb, transmitting it into no

reasonable juror could disagree with this principle of law, that

then becomes incepted by the appellate court, results in the

destruction in a large number of cases before the Supreme Court
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disproves it, and that generally is the life cycle. I've got

several examples that are later in the proceedings.

But yesterday I looked at 145 cases, September 1st

through last night, published decisions, well, published and

nonpublished decisions both, from the courts of appeals, dealing

with employment discrimination, retaliation, whistleblower cases

and so on. Out of those, there are 122 -- the 145 cases came

down to 122 that actually met the criteria to be useful for

analysis. Of those, almost one in five resulted in partial or

full reversals by the courts of appeals. That to me indicates

that there is a problem, that summary judgment is being granted

in cases that are close cases. There are three courts of

appeals, the 1st, 2nd, and 3rd, that have come in and published

decisions on sort of a rush to judgment resulting in summary

judgment being granted in what the courts of appeals saw as a

docket-clearing mechanism, more than a device to identify

hopeless cases and get rid of them.

One problem may be a structural one in that there is

nothing in the text of Rule 56 that requires that inferences be

dealt with the way that they have to be dealt with if we're to

follow the Supreme Court's guidance on the subject of summary

judgment. In other words, a motion for summary judgment can be

made and supported and granted without the movant ever having to

say what is the range of inferences that can permissibly be

drawn on behalf of the nonmovant, that to show that granting the
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motion does not in fact require the drawing of an inference in

favor of the movant. The nonmovant is not required to respond

to any discussion like that, so that when it comes to the judge

for decision, there is no developed argument that enables the

judge to take a look at what both sides have to say about the

range of permissible inferences. It comes out of whole cloth at

that point, and because of what that, when seized a lot of cases

in which the inferences are actually drawn on behalf of the

movants, and again there are some examples in here. I've given

two illustrations to put some flesh on to the bones.

PROFESSOR MARCUS: I'm sorry. I just wanted to

follow-up what you just said.

Is this an argument for including a requirement that

an amended rule, an identification of inferences, or in

connection with the proposed amendments that are presently out

for comment? Is there something missing that would address what

you're talking about, and how does what you are talking about

relate to what's in the published amendment?

MR. SEYMOUR: Are you referring to an admission is in

the public amendment on whether it's on this occasion or a

subsequent occasion? I think it's something the committee

should really look at because it would make the use of summary

judgment more like the use it was intended as opposed to the

granting of summary judgment in close cases.

PROFESSOR MARCUS: Would the current proposed
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amendments at least seem to you a step in the direction of what

you are endorsing?

MR. SEYMOUR: I think the comments have more to do

with that than the actual text of the amendment, but nothing is

going to succeed as well as changing the text of Rule 56 to

require that inferences be addressed by the parties in an order

fashion.

The first case, two cases, the illustrations that I've

used, one case is a case in which the Court of Appeals caught

the problem in what the district court had done. The second

case is one in which the Court of Appeals did not catch the

problem and replicated it, and as a result there are going to be

cases down the line that are going to get the same unhappy

result. The first case is a fairly egregious sexual harassment

case involving a woman who worked for an Illinois state court

judge. The trial court found that there was no adequate showing

of an objective -- the objective test for sexual harassment. If

one looks on page four of the paper at what the 7th Circuit had

to say about the evidence in the case, and mind you we do not

have that for an awful lot of appellate decisions affirming

summary judgment because they're unpushlished and they're often

just very summary decisions where they say based on the X

opinion below, which is not published, we affirm, but there are

both comments that are too vulgar to repeat orally. The judge,

becoming very angry if he thought of the woman as seeing anybody
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else, demanding that she have lunch with him, demanding that she

shake hands so he's got some physical contact, flying his own

plane over her mother's farmstead when she was there just to

keep an eye on her, threatening to kill her if she has a

relationship with other men, these are things that the district

judge found did not meet the objective test of being severe

enough to constitute a sexual harrasment claim. Clearly a

miscarriage of justice in the district court, rectified on

appeal.

There's a 5th Circuit decision which the Court of

Appeals simply repeated the same types of mistake made by the

district court. The Stray Remarks Doctrine that has been

interpreted before the Supreme Court took action, Rieves against

Sanison Plumbing Products, was interpreted in a number of

circuits as requiring the same kind of evidentiary quality that

you would have to have to be a judicial admission of

discrimination, i.e., it's got to be the decision-maker, it's

got to be made at the time of the challenged decision, it's got

to be made with the reference to the plaintiff, it's got to be

made with the reference to the challenged decision.

Now, in the context of a murder case, I frankly cannot

imagine the court throwing out prosecution evidence of a threat

to murder someone fitting the description of the plaintiff just

because it was made a couple of months earlier. That's what

happened in the 5th Circuit in the Rieves against Sanison
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Plumbing Products case with respect to age-related comments that

weren't made at the same time; therefore, they're to be

discarded. And here there are a lot of things that the Court of

Appeals overlooked in the context affirming the grant of summary

judgment that a jury would clearly have been entitled clearly,

to my way of thinking. Many of you are judges and law

professors and probably know much better than I, but to me the

jury clearly would have been permitted to find for the plaintiff

in those cases and that should have been sustained. The use of

summary judgment, the abuse in terms of the rate of summary

judgment, has become sufficiently extreme in the field of

employment law, which is the one field of law that I can speak

with some knowledge about.

I mentioned before the life cycle of these rules of

thumb that are perfectly appropriate arguments to be caused in

weighing evidence, but they have become transmuted in what

plaintiffs' attorneys see as the kind of a summary judgment

engine that sweeps in good cases along with bad cases into these

rules of law. And the function of the rule of law is if it

doesn't meet the test, we'll discard it, we'll put it aside, you

don't have to consider it, so it never gets weighed in with all

the rest of the evidence is simply knocked out of the case and

then there's no obstacle in the path of granting summary

judgment and the clearing of the docket.

A classic example, calling an African-American man a
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boy is not probative of racial discrimination in the view,

former view of the 11th Circuit and of some others, unless there

is a derogatory adjective that is used in conjunction with it.

The Supreme Court knocked out that rule in Ashley against Tyson

Foods. The rule that you cannot compare the qualifications of

the plaintiff with a successful candidate because you don't want

to be a super personnel department unless the difference is so

extreme that it jumps off the page and slaps you in the face.

Again, Ashley against Tyson Foods knocked that out.

The rule that comparators must be virtually identical

to the plaintiffs before the comparison can be probative, the

Supreme Court has addressed that principally in the field of

Batson challenges to the use of peremptory strikes of jurors,

Miller, L verses Drepu (ph) as being one of the most recent.

And in that case in which the Court relied upon employment law

precedence, the Court said that if you have a per se rule that

the comparators must be exact, you rule out the use of

comparators as viable evidence. People that are potential

jurors are not products of a set of cookie-cutters. The same is

true in the employment context. We've already excused the

ruling voyeur remarks are not probative discrimination under the

type of standards that some courts of appeals have used, and I

set forth the language disproving that in Rieves against Sanison

Plumbing Products, the rule there's a strong presumption against

discrimination if the plaintiff was hired or promoted by the
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same person who later fired or demoted the person. Again,

perfectly proper jury argument, perfectly proper for a

plaintiff's attorney to use in deciding whether or not to take

the case, but used wrongly as a device on which summary judgment

is granted. The ruling that no plaintiff can claim sexual

harassment unless her harassment was so severe that it seriously

damaged the plaintiff's psychological well-being, that was

knocked out by the Supreme Court in Harris against Forklift

Systems. The rule of plaintiff's wrongdoing automatically bars

relief in the says old Massachusetts highway doctrines from the

1920s and 1930s in which an unlicensed driver was automatically

at fault no matter what else happened. That was knocked out by

the Supreme Court with respect to employment discrimination

cases. Similarly, there is a doctrine followed by a number of

district courts that you cannot consider the affidavit of the

plaintiff -- this is not where it disagreed with deposition

testimony of the plaintiff -- you cannot consider the affidavit

of the plaintiff because it's self-serving. Why does the

affidavit of the manner of whose career may be at stake

depending on what happens in the court not self-serving? But

these jury arguments as we see them becoming rules of law under

the rubric that no reasonable juror could rely upon this and

then being used to dismiss the case and to make summary judgment

possible, that is a major problem. It's an abuse of summary

judgment. Unlike some other areas of the law, employment
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discrimination frequently turns upon the question of intent. It

is the Supreme Court and courts of appeals who observed many

times defendants have learned not to be very open when there is

discriminatory intent so that the case has to be decided based

upon circumstantial evidence and the inferences to be drawn from

circumstantial evidence. We all know from the trials we

participated in that there is a world of difference in how an

individual presents testimony, whether it's a trial, by

affidavit, does not give anyone the sense of a just result that

a trial with live witnesses would produce.

And that brings me to my last point, which is the

question of the rule of the Court's respect for the rule of law,

the prestige of the courts. I have to confess that I am a

corporal filer. I think that the courts and respect for the

courts is one of the glues that holds the country together. The

third branch of government is the institution, the last

institution in which there is broad public support of broad

sense that this is where we can put our trust. And that's based

in large part on the notion that every person, no matter how

defenseless ordinarily, no matter how vulnerable or weak, stands

on the same footing in a trial as a person who has -- it's the

richest corporation in the world. You've got the American flag

there by the judge's right hand, you've got everybody able to

see what the testimony is, you know that the jury comes back

with its decision, and the jury's composed of ordinary people
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and there's respect for the result. Contrast that with a

bureaucratic determination, whether it's made by the Social

Security Administration or any other government agency where

it's done behind closed doors on paper submissions. Where

people place their trust is in the public judicial proceeding,

and to the extent that a large number of cases are resolved in a

bureaucratic style, it seems to me that that undermines the

trust and the integrity of the proceeding, the belief that this

is a branch of government in which we can continue to put our

trust, and quite frankly, the trust that people put in the

judicial branch is one of the glues that hold the country

together with respect to the two other branches as well. It's

just too important. In going over bureaucratic style and away

from trial by jury is something which has a cost that I think

has to be paid attention to. Thank you very much.

JUDGE KRAVITZ: Thank you, Mr. Seymour, very much.

Are there any questions? Judge Walker?

JUDGE WALKER: Mr. Seymour, you've spoken quite

eloquently about what you describe as the abuse of summary

judgment in these cases, and as I understand what you have

described, it is instances in which summary judgment has been

granted that should not be granted. I don't quite understand,

is the connection between that error by a trial judge, possibly

the Court of Appeals on review, and the proposed changes that we

are considering, how are these changes going to increase the
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problem that you described rather than have any effect at all?

These changes are not intended to change the substantive rules

of law, so what's the connection between the problem you've

described and the amendments we are considering?

MR. SEYMOUR: Eminently fair question, your Honor.

I began by saying I was addressing the remarks

principally to the suggestion by some that the language in the

rules should be changed, the proposed rules should be changed

from "should" to "must" grant summary judgment, and whatever the

meaning of "shall," and I think it's entirely clear to me that

there is judges who have regarded themselves as having

discretion, parties have regarded them as having discretion.

Regardless of any dictionary definition, but having proposed the

word "should," changing it to "must" has got to produce a stomp

on the accelerated pedal in the grant of summary judgment so

that the problems that I've described are going to be

exacerbated. It's going to increase the rate at which close

cases have summary judgment granted in them.

JUDGE KRAVITZ: Thank you very much.

MR. SEYMOUR: Thank you.

JUDGE KRAVITZ: We appreciate it.

Mr. Schachter?

MR. SCHACHTER: Thank you.

My name is Leigh Schachter. I'm the assistant general

counsel with Verizon Wireless in New Jersey. I hope you will --
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you're all familiar with our company; maybe some of you.

Hopefully most of you are customers.

JUDGE KRAVITZ: Pre cell phone.

MR. SCHACHTER: I was going to recite the clip

"Where's the helicopter?"

On behalf of Verizon Wireless, on behalf of our

general counsel, Deb Stein, who I know was able to participate

in one of your earlier sessions but unfortunately couldn't make

it today, and Bob Ernstar, our deputy general counsel for

litigation, I want to thank the committee for allowing us to

share our views on the proposed change to Rule 56. I had

submitted, when we were requested to testify, a short letter

summarizing our views. I didn't see it out this morning.

Hopefully you have it.

JUDGE KRAVITZ: I have it.

MR. SCHACHTER: Okay. I won't repeat what we said,

and I thought that Ms. McCarron, who was the first person

testifying, to a great extent summarized what our views are on

the amendment, but I'll just try for a couple of minutes to

bring our perspective as sort of a practical in-house

practitioner our views on the amendments.

First I want to thank the committee for its proposal,

and we really strongly support the proposed amendments to Rule

56 and we think that from a practical perspective they will help

bring the rule into conformance with the reality that we see in
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the courts throughout the country and will hopefully improve the

process of making the summary judgment process more efficient

and easier for litigants and for the courts. Summary judgment

and Rule 56 is something that's very important to us from our

perspective. We have a lot of cases in district and state

courts throughout the country. And Rule 56 is important not

only in helping filter out the meritorious from the

unmeritorious cases, which is what I think what naturally we all

think of as Rule 56, but from my perspective of it it helps sort

out the cases that are primary fact cases from the cases that

are really legal cases. And it's surprising to me in my

position how many of our cases are at heart not so much fact

cases where there are really no big issues of fact but are

really purely legal cases, and it's important to us in our

context to be able to have those cases decided promptly and

effectively on the legal issues that are presented. I can think

of one in the last couple of years.

We had a number of municipal tax cases out in

California, and these happened to be in state court, but they

presented really important issues of law that really needed to

be decided by the Court. There were intricate questions. They

weren't obvious questions, and they were important to get

decided, but unfortunately through discovery they wound up

getting muddled with a lot of facts that really weren't an

issue, and if you looked at them carefully, of what the facts
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were, they really weren't material to the case, but

unfortunately they become part of the record and it becomes very

difficult to obtain a clear summary judgment decision that

becomes critical to the parties and to the public at large,

quite frankly, so we think it's important to have a system that

allows for summary judgment to be considered, not so much, I

wouldn't say granted or denied, but to have summary judgment

motions considered in an efficient manner. And I think that the

changes that are proposed really will assist in that.

And right now another issue that we see is that

wherever you go throughout the country the summary judgment

practice will depend upon local rule. I practiced for ten years

in New York, Southern District of New York, which is where I did

most of my work. We had one set of rules and somewhere else

throughout the country you had a different set. I handle cases

throughout the country and you have different results and it's

difficult and inefficient, I think, to have those different set

of rules and I think the proposed rules really do a good job of

bringing together those local rules in a way that presents a

common rule that can be applied throughout the country

consistently with appropriate discretion for appropriate cases

where you may need to have different rules, but by and large, at

least we'll all be playing on the same playbook throughout. And

in particular I would comment on what I call the pointcounterpoint, the statement of undisputed fact and the reply to
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that statement, which I think really is a very useful tool for

trying to identify and narrow what are the issues in the case,

what are the facts in the case, and to hopefully allow the Court

to answer I think the two questions that it would have to with

regard to those facts, which are, is there a genuine dispute as

to that fact? And if there isn't, or if there is, I should say,

is that fact material to the case, and those are, I think, the

two issues that have to be decided. And I think the

presentation in that way has really improved through the use of

that separate statement of undisputed facts. It has been

mentioned, and I'll admit it's been a concern of mine, the fact

that often those become burdensome. They can become, you know,

a box, or at least a nice thick binder of undisputed facts, and

I think hopefully it's important that in practice the courts and

the bar will work to make sure that the statement of undisputed

facts that they present is concise and really limited to those

facts that are important. I thought the note in the comment

about potentially limiting the number of undisputed facts in an

appropriate case is a good idea that might be appropriate in

some cases, but I think just practically, as I think I've said

this to people who have, whether it's now outside counsel

prepare summary judgment motions, that if you have so many

undisputed facts that you're presenting, undoubtedly there is

going to be a disputed fact in there, so the more undisputed

facts you're presenting, at some point there's got to be some
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dispute, so a really effective way to make use of the summary

judgment procedure and the process is to limit your statement of

undisputed facts to those that are triable with undisputed and

truly critical to the case. Overall, again, we think that the

amendments are really beneficial.

I do want to say finally one word about the committee

has requested our views on the issue of the "should" versus

"must" controversy. You know, I'll admit as one who's not -- I

didn't pay particular attention to the amendments, it's not

something that caught my eye in the amendments, but having had

the issue you now called out and really looked at the issue, I

really feel strongly that the proper word is really that it

should be "must" and that both that is what "shall" was

understood to mean, and I think based on my limited view, what

the case law did present, and I don't pretend and won't put

myself forward as an expert on the case law because I certainly

haven't read every single case in which it's been an issue, but

I think more importantly from my perspective as a policy

perspective as an in-house practitioner I think "must" is the

right word. If a party has, after a fair process, presented

that there in fact is no genuine dispute as to any material

issue of fact, then there's no need to have a trial, and

frankly, it's unfair to the party that has made that

demonstration to put them through the expense and the time and

effort to go through a trial where there's really no need for a
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trial, and, you know, certainly we recognize that there is a

need for discretion in deciding summary judgment motions, and in

fact, there is -- there is what's now Rule 56(d), which allows

the Court to put off a motion to pull out further discovery, to

set the timing of the motion, to deal with other issues, so

certainly there has to be discretion, but if after the process

has gone through and each side has had a chance to fairly

present the motion and they can demonstrate there's no issue of

material fact, then there is really no reason that we could see

that summary judgment should not appropriately be granted and

that that party should be dispensed with the need to go through

to trial.

I saw that in the comment there was the suggestion of

having the "must" standard for a full summary judgment motion,

so to speak, and a partial summary judgment under the "should"

standard. I think as a backup it's better than what's there

now, because in the context of a partial summary judgment motion

I can certainly understand more where there might be at the

margin a need for discretion where you're going to be going to

trial anyway's where there might be intertwined issues where

you're going to have to present some of these facts as part of

the case that goes to trial. I still think in my view it's

probably appropriate to grant summary judgment on that issue and

you can deal with the periphery surrounding it, but I think that

it's less of an issue in the context of a party that's entitled
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to complete summary judgment where there's no basis to go to

trial, to take a case to trial and put the party to the expense.

Under those circumstances really there's no need for that

discretion.

And the other thing that concerned me, and I notice

this and thought of this last night, is that there is no

standard for that exercise of that discretion in the rule. I

mean, it's simply -- it suggests that there is some discretion.

It ought to be limited. I know it's in the comments, but

without some suggestion as to what the standards are for that

discretion, it really does run the risk of providing an opening

for a situation where courts don't want to grant summary

judgment, and unfortunately there are some that we've

experienced, not most, but there are cases where, you know, you

go into a jurisdiction and, you know, your advice from your

local counsel is that no one ever gets summary judgment in that

jurisdiction, and having that discretion, judgment may allow for

that to happen, so although --

Again, just to summarize, I want to finish that we

strongly support the amendments, think they're very helpful,

very useful, really are an improvement to the existing rule, and

we hope that they would be adopted.

JUDGE KRAVITZ: Thank you very much.

Are there questions from any member of this witness?

Seeing none, I want to thank you very much for both
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your written comments and your oral statement.

MR. SCHACHTER: Thank you very much.

JUDGE KRAVITZ: I'll mispronounce this, and I do

apologize. Chertkof?

MR. CHERTKOF: Yes. Steve Chertkof.

JUDGE KRAVITZ: Welcome, sir.

MR. CHERTKOF: I'm the president of Metropolitan

Employment Lawyers Association, a group of several hundred

lawyers who represent plaintiff's side in employment

discrimination and civil rights laws.

One of the things I've noticed in the testimony,

whether you believe in "must" or "should" seems to depend on

whether you think you're bringing the motions or responding to

the motions. But to try and stay true to the mission here, I

want to focus on how the wording of the rule might be modified

or tweaked slightly to better focus the issues in our kinds of

cases where intent and large volumes of circumstantial evidence

are frequently an issue.

To step back, I do believe that the point-counterpoint

can be effective in many kinds of cases where the ultimate issue

is one of objective fact, such as limitations or a contract

issue. However, where subject and intent and motivation are at

issue, I think it is less useful often and sometimes can work

against clarification issues. I propose two basics speak to

language very specifically in either one. With regard to the
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moving party's burden, I propose language in my material that

says the fact is material if a dispute over that fact would

affect the outcome of the suit as to that count, claim, or

issue. That's right out of Anderson versus Bimlimi and New

Orleans. I'll leave the reference there. That if there is a

fact in dispute as to any fact that identifies material by the

moving party, the motion must be denied, should be denied as to

that counterclaim, and the reason for this is to make the abuse

problem that the plaintiff's side is worried about more selfpolicing. That is, we often already seek, because we have these

rules locally, summary judgment motions arrive in that box with

fifty or a hundred or sometimes two or three hundred statements

of undisputed fact, which is every little detail, every little

communication or phone call or interaction, many of which are

really not material but still require the nonmoving party to

respond for fear of having them decided against them.

JUDGE KRAVITZ: Does the provision in the proposed

rule that allows you to admit a fact only for purposes of the

motion help with that in the sense of if you're looking at, and

I see these too, somebody is terminated at age 55, and so the

first fact will be Kravitz was born on this day and went to

college and it will be my life history, which is clearly not

material, but you could just admit that for purposes of the

motion and really zone in on the things that you as plaintiff

think are?
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MR. CHERTKOF: Yes. I think in theory that could

work, but as I noted in my last point in my letter, that there

is an irreconcilable tension between that and 56(g) which allows

the Court to decide that certain facts are undisputed. And we

do see judges sometimes narrowing the issues for trials based on

summary judgment filings, and while somebody's birth date is

often not at issue, the issue of whether a particular

conversation or interaction or whether a particular project was

performed properly or improperly may be relevant down the road

and plaintiff's attorney is probably too fearful to say, well,

they don't matter for the motion even though they may matter in

trial, for fear of never getting the second chance to say why

it's relevant down the road.

JUDGE KRAVITZ: But if that were taken care of in some

way, so that if you admitted something for purposes of the

motion only, the judge couldn't then find that fact against you,

would that solve --

MR. CHERTKOF: I think it would improve, but not

solve. As I'm coming to -- in many discrimination cases, you're

not chasing objective fact, you're not chasing, well, was this

document filed or received on a particular date? You're chasing

motivation. When a boss fires somebody, is it because of their

sex or race, or because they complained about discrimination, or

is it because of performance and misconduct? And that's very

hard to get to through this point and counterpoint.
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A simple hypothetical I used in an appellate argument

a while back, I think I highlighted this: consider a simple

fact situation for retaliation where a long-time employee files

a complaint of discrimination against her boss, goes to the

E.E.O. office in the company, files an E.E.O. complaint, and two

days later she's ten minutes late for work, the boss sees her

and says you're ten minutes late, you're fired, and she brings a

claim that's retaliation.

The summary judgment motion, which is inevitable, and

one of things I wanted to step back for and say that in our

practice it is difficult to ever find a case where a summary

judgment motion isn't filed. In fact, the defense bar will

often say off the record that it's almost malpractice for them

not to bring one, so rather than selecting the cases where it's

appropriate, it seems to be a routine matter. The summary

judgment motion you'll get in that case will probably bring some

of these issues. They'll say, number one, we can't prove that

the boss knew about the E.E.O. complaint, that it was filed in

the E.E.O., the HR office, and because the boss denies knowing

that the claim was claimed, there is no evidence, there's no

admission, therefore we lose on that point, even though the

circumstances seem to me to suggest that a 20-year employee

fired for being ten minutes late, there's something else going

on perhaps than just being ten minutes late.

Say there are no comparable employees, this particular
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employee's job is so unique that the fact we can show dozens of

other employees who have been half hour late, hour late multiple

times is irrelevant because they're not almost identical to this

particular employment. Again, is that relevant? They sort of

divide and conquer.

And lastly, we see courts giving preclusive effect to

the decision-maker's own affidavit saying I fired this person

for legitimate reasons when we would not do that in other

contexts. Consider a criminal case where a defendant puts in an

affidavit saying I did not know there were drugs in the car, or

I did not know the gun was loaded. Now, that's certainly a jury

issue, but we never have a judge or almost never see a judge say

that as a matter of law because there's no contrary admission

that must be reasonable doubt and therefore the trial can't go

forward, and yet we do see judges saying, well, when a decisionmaker says that the E.E.O. complaint had nothing to do with this

decision, they look for a plaintiff to say, well, if you can't

find somebody who testifies that the E.E.O. office told the boss

in those two intervening days, you lose.

JUDGE KRAVITZ: There seem to be a strain, and I'll

throw this open, I'm just curious about it, that summary

judgment is granted too frequently in plaintiff's employment

cases, but the data that is now coming out from Professors

Clairmont and Schwabb and others suggest that when employment

cases go to trial, plaintiffs lose more often in employment
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cases than in any other category of civil cases in the district

court, and when they win, that their victory is reversed more

often than any other category of cases, so I don't know what to

make of that. One way you could look at that is to say actually

that may not suggest that it's being granted too often because

when they get to trial they're losing and when they win it's

getting reversed by the Court of Appeals. What would be your

comment?

MR. CHERTKOF: Let's say I think they're separately.

First of all, I think the excessive number of reversals in the

plaintiff's verdict goes hand in hand with what we see as an

excessive granting of summary judgment against plaintiffs, so

it's two sides of the same coin.

JUDGE KRAVITZ: So it's not just the district courts,

it's the Court of Appeals also?

MR. CHERTKOF: Well, all of it, in the sense that

there are rules and inferences being drawn against plaintiffs in

this context that seem different than in other contexts, but the

first point that plaintiffs may lose these trials at a greater

rate I don't think is logically connected at all because the

Court should not be weeding out cases they think are losers.

They should be weeding out cases they think don't have any

evidence and a jury could find in their favor. A great number

of these cases are he said/she said cases or he said/he said,

whatever it is, but it's basically a conflict among several
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witnesses' testimony. Employers frequently have more witnesses

because most of the documents and most of the relevant witnesses

are still current employees of the company, so in most of our

cases we go to trial, we have maybe one or two friendly

witnesses against eight or ten or fifteen unfriendly witnesses.

We still win at the number, but the fact that they're lost in

higher percentages is not surprising, but I don't think the goal

of summary judgment is to say do you know what? They have ten

reliable witnesses on one side and the plaintiff on the other

who heard this, you know, "I'm firing you because you're too

old" comment, they're never going to win this case, that's not a

summary judgment case.

JUDGE HAGY: That would be an improper use of summary

judgment.

Let me ask on your example, suppose it went to trial

and after the plaintiff's case, if the plaintiff hadn't put any

evidence in that the boss knew of the EOC charge, the boss had

actually -- maybe they called him for cross-examination -- said

he never knew it, should the trial judge allow a case to go

forward on a motion to dismiss?

MR. CHERTKOF: In my example, I hope I set it up to

say yes, that you can infer from the mere circumstances that a

20-year employee who had a good record and no other blemishes on

her career, what changed that made this ten minutes late on this

one day a firing offense? And I think the jury could infer,
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they need not but they are permitted to infer, that the boss did

find out. In fact, when the HR person saw this EEO complaint,

they called him up and said, Fred, what's going on with your

secretary? She just filed a complaint against you.

JUDGE HAGY: That's evidence. If you had absolutely

no evidence of the connection between the boss and the

employment section, would it go forward? The only circumstance

you said is, well, it happened close in time and therefore

that's enough to infer knowledge, I guess. Is that your

argument?

MR. CHERTKOF: Yes.

JUDGE HAGY: Temporal proximity infers knowledge as

well as causation.

MR. CHERTKOF: Yes, but there's more in that case.

When you ask the question if there's no evidence, you're sort of

assuming the answer.

JUDGE HAGY: Well --

MR. CHERTKOF: I think that circumstantial evidence is

powerful evidence and you don't need an admission. When both

players are employees, they have self-interest in the outcome.

They understand that they admit they know about this fact. It

looks bad. A jury can disbelieve testimony on that basis and

can say do you know what? I don't believe that Fred would have

fired Wilma that day for being ten minutes late unless there's

something else going on, and they haven't given me anything to
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explain why that sudden, unusual reaction, and Wilma has

explained it perfectly, which is she got fed up with the sexual

harassment, she went and filed a complaint, and two days later

she's fired on a very thin reason.

JUDGE KRAVITZ: Judge Baylson has a question.

JUDGE BAYLSON: Yes. Let me ask you this: Obviously

we're all in agreement, and I'm sure you are, that we shouldn't

be changing substantive standards, we're just talking about

procedural rules, and in the McDonald-Douglas context, I think

where most summary judgments get granted is, it's fairly easy

for the plaintiffs to establish a prima fascia case and it's

fairly easy for most defendants to come up with an independent,

nondiscriminatory reason, and very often when summary judgment

is granted, the district court judge finds that the plaintiff

has failed to come up with evidence that breaches it. Now, you

can quarrel with that standard, but you're not claiming that our

rule is affecting that substantive standard under

McDonald-Douglas?

MR. CHERTKOF: Yes and no, your Honor. First of all,

I think procedure can affect outcome, which is why we're all

engaged in this, but I think I need to get to my second point,

which is related to the first, that we want to first limit the

inquiry to material facts and not a whole bunch of secondary

subsidiary evidentiary facts, but the moving party, the moving

party under current substantive law has to establish there is no
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dispute as to material fact and not have any inferences drawn in

their favor to get there. The responding party --

JUDGE BAYLSON: Isn't that current substantive

standard summary judgment law?

MR. CHERTKOF: Yes, but that brings me to my second

point, which is, I think we need a change to Rule

56(c)(2)(b)(II)(i), which is basically -- it's on page 29 of the

most recent draft, I think. It's basically how you respond by

the nonmoving party for summary judgment. It currently reads

this:

Made in the response incise ly identified in

separately numbered paragraphs additional material facts that

preclude summary judgment, and that, while I think it's small,

is a substantive change in the law. I think you'll have to

delete the word "material" from that and change it to

"additional facts or inferences that preclude summary judgment,"

because a nonmoving party can agree with the facts and argue the

inferences or can agree with some facts and put in others, but

to put in facts that aren't material, as I defined it, as

Anderson vs. Liberty-Lobby defined it, but are still relevant to

summary judgment, for example, going to credibility. If the

moving party's motion rests ultimately on the affidavit of a

witness whose credibility is an issue, that becomes a fact that

can defeat summary judgment even though it's not necessarily

material in the Anderson vs. Liberty-Lobby sense. So again --
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JUDGE VALUKAS: You would advocate eliminating the

word "material" in the response?

MR. CHERTKOF: And adding the word "or inferences."

The responding party can raise facts or inferences.

JUDGE KRAVITZ: Judge Valukas?

JUDGE VALUKAS: Mr. Chertkof, why wouldn't it be

sufficient for the non-moving party, given the circumstances, I

mean, I thought your hypothetical was an excellent illustration

of the situation where credibility is at issue wherein

inferences can be drawn. I thought you did a very nice job of

setting that up, but why isn't that appropriate material for the

brief, that is, you lay out the facts and then you lay out those

things that you think are disputed, and then in your brief,

which is accompanying the statement of material facts and the

position, you point out to the Court that there are numerous

credibility determinations, that the appropriate inferences to

draw are that this is pretextual, you lay out all of the things

that you set up so nicely in terms of the 20-year employee, all

of the other employees who have been late and aren't discharged,

that a jury is entitled to draw an inference in favor of the

plaintiffs and to find in favor of the plaintiffs on that

evidence, why isn't that sufficient?

MR. CHERTKOF: Well, I certainly would do it in a

brief, but I actually think that the point-counterpoint process

can work but ought to be tweaked to deal with this issue because
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Title VII cases are a significant portion of the docket. In

many cases the way that the summary judgment motion is going to

be handled in a point-counterpoint I think obscures the issue

rather than clarifies it. It obscures the issue because the

first undisputed fact will be the person was ten minutes late;

therefore, the reason is true under McDonald-Douglas and

therefore we don't prove pretext, when of course the fact that

they are ten minutes late isn't dispositive. The question is

whether or not that was the motivation of the supervisor, not

whether the particular incident they decided to give as their

reason is a true incident.

The second undisputed fact is going to be there's no

proof that the supervisor was aware of the E.E.O. complaint

because nobody's admitted it and both sides of that potential

conversation or communication deny it. And the point is, that I

don't think that the point-counterpoint as currently proffered

focuses the real material fact there is what is the knowledge

and intent of the supervisor. And I think the reason it is

developed that way is because that's a much harder question in

summary judgment. It's much easier to try and distract and say,

well, the issue is did they really miss this deadline, did they

really arrive late, did anybody admit that A told B about this

fact? And thereby by dividing and conquering, they obscure what

is the real and ultimate only fact in issue, which is, what is

the motivation of that boss for making this decision? And if
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it's focused on that and inferences are drawn from the nonmoving

party, I think that summary judgment abuses, as the plaintiffs'

side sees it, would be lessened because the point-counterpoint

would serve a better function by focusing on the issue of

knowledge and taking other things that are dealt with often

circumstantially and not dealing with hundreds of obscuring

subsidiary facts and e-mails and communications and ages that

may or may not be disputed.

JUDGE KRAVITZ: Judge Baylson has a question, but I'll

just make, if you think in that situation the point-counterpoint

would obscure intent, don't you think the brief is going to do

that too?

MR. CHERTKOF: I hope that they would. I hope so.

JUDGE KRAVITZ: So I don't know whether -- you may be

right, but I don't know that the point-counterpoint necessarily

would be the culprit in your situation. I think that the

defendant is going to obscure the fact that intent is the key

issue by focusing on facts, and they're going to do that in

their brief or they're going to do it in their -- I assume

they're going to do it in both.

MR. CHERTKOF: May I respond to that?

In the real world, cases are never quite so simple as

they are in hypotheticals, and what I would really expect is

that I have a 20-year employee, I've represented a lot of

employees, I've had some very strong cases, I've had some more
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ambiguous cases, but I've never had a perfect employee, so for

the 20-year employee, the employer is going to come forward with

all of the various mistakes and problems that employee has ever

had: lost this sale, had this conflict with a coworker,

forwarded an inappropriate e-mail joke to this one, and all of

those are going to show up in the Statement of Undisputed Facts

trying to paint this employee as less than superlative, and I

may have to respond to a hundred incidents -- excuse me -- a

hundred statements of undisputed facts with another dozen or two

dozen incidents over this 20-year career, none of which focus on

the issue that I think is really at hand and create a very big

burden on most of these small firms who don't have teams of

paralegals to do this and put together the non-movant's box.

JUDGE BAYLSON: I have two questions. The first

follows up on your proposal for (c)(2)(b)(2). When you want to

eliminate the word "material," I don't understand how you can

defend that, because we've had -- "material" is used in the

Supreme Court's trilogy and it's used as a requirement for the

moving party's statement, and we've had a lot of discussions

about that and a lot of complaints that many lawyers come in

with facts that are not material, and having the requirement of

materiality really requires a lawyer to think about what is

material, because otherwise you get these 100-page statements

about what color necktie somebody was wearing in an antitrust

case, which really is completely immaterial, anybody would
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agree, so I don't understand why you would want to do that.

And secondly, I think your idea of adding inferences

is something that deserves discussions, because certainly

inferences could be raised in a brief, but I think what you're

saying is that maybe judges don't get the import or the impact

of possible inferences by just reading a brief and if it was in

the counter statement of facts it would be more clear and more

obvious. Do you have any comment on that?

MR. CHERTKOF: Well, yes. I appreciate that one out

of two. But yes, because in the point-counterpoint, I actually

think this can be useful, so if the issue is going to be focused

down --

JUDGE BAYLSON: But how can you defend eliminating the

word "material"? Why do you want to do that?

MR. CHERTKOF: Because I think "material" ought to be

defined narrowly for the moving party to help focus it. But in

responding to that, a non-moving party can bring up issues that

I don't think are material in the classic sense.

For example, suppose the key affidavit from the moving

party is by somebody who has been convicted of perjury. Is

their conviction of perjury relevant at trial to their

credibility? Of course. Is their prior conviction for perjury

material under the Liberty-Lobby standards? I doubt it. And it

acts as a word of limitation when what a nonmoving party wants

to do is show you all the reasons why the moving party's story
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needs a trial, why a jury has to hear the story and decide

whether it's accurate.

And there are things about credibility. I mean, many

of the witnesses, in fact, most in our cases have an interest in

the outcome. They're aligned with the employer or not. They

get paid by the employer. They have a reputational interest in

whether they're found guilty of sexual harassment or

retaliation, and to accept their affidavits without challenging

the credibility of those and having the jury hear them is often

a miscarriage of summary judgment, but it doesn't mean that we

have a material fact on the opposite side of that to say here's

why you should disbelieve the supervisor's denial that they had

knowledge of the complaint.

JUDGE BAYLSON: Can I ask my second question?

JUDGE KRAVITZ: Yes.

JUDGE BAYLSON: And this goes back to what I said

before in the context of pretext. It sounds to me from your

eloquent description of this process that what you're really

complaining about is the McDonald-Douglas standard. You would

like to have the standard be that if a plaintiff in an

employment case shows a prima fascia case, he or she is entitled

to a jury trial, period. Isn't that really what you're saying?

MR. CHERTKOF: No, your Honor, although the D.C.

Circuit recently traced to this in the Brady case, which I think

was a good illumination, it follows in the Supreme Court's case
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in Aikens, that when you come in at the end of the discovery,

the McDonald-Douglas case, which was created at a time when

these were bench trials, it was created before the '91 Act, is

really of minimal use to us. At that point most of the time you

have two stories: you have the employer's story, which is, this

person was fired for misconduct or for poor performance or for

something else, and you have the plaintiff's story that says,

no, my performance was adequate. I was fired for retaliation or

for my sex or my race or for taking disability leave, and the

question is, you throw everything in the pot and is there enough

that if a jury granted a verdict you would survive a Rule 50

motion, that is, the jury was entitled to disbelieve witnesses

on one side, believe the others, and decide, do you know what?

I don't think the employer's justification makes sense. Sure,

the employee wasn't perfect, but they were no worse than anybody

else, they shouldn't have been fired for this particular thing,

and I think the fact they took disability leave three weeks

before they got fired, that was the thing that was the problem,

and those are not very amenable to summary judgment. Statute of

limitations cases are, exhaustion of remedies cases are, but

generally speaking, what somebody's motive is in a particular

situation is just not amenable, and I think the statistics show

that the district courts shouldn't fear juries. That is, juries

do a pretty good job of getting it right, but it may be the

scenario where people bring cases and they have an uphill
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battle.

JUDGE KRAVITZ: I had a jury trial in an employment

case and it took the jury about twenty minutes to come back with

the defendant's verdict, and then their first question to me

was, who decides these cases go to trial? That would be me.

So, you know, it's unclear what the statistics are, but I

thought your comment was a good one, which is, you know, maybe

we should be letting more cases go.

But we've got a lot of people we've got to get to. I

appreciate very much your time and your comments and your

thoughts.

MR. CHERTKOF: Thank you very much.

May I have one minute to do the other points I didn't

talk about?

JUDGE KRAVITZ: Do that? Well, it's in your written

statement. Is it in your written statement?

MR. CHERTKOF: Yes.

JUDGE KRAVITZ: Sure.

MR. CHERTKOF: Sur-reply, oral hearings, because

again, we get this complex record. It's very difficult, I

think, for the courts to decide these on paper records.

JUDGE KRAVITZ: When we start mandating oral argument,

then the judges will surely --

JUDGE BAYLSON: But ask for them.

JUDGE KRAVITZ: We have Professor Schneider next. I'm
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sorry. No. Professor Brunet. I'm sorry. Excuse me. I got

ahead of myself.

Welcome, Professor. Thank you for coming.

PROFESSOR BRUNET: I want to thank the committee for

letting me speak today, and I start off with a story about the

late Professor Maury Rosenberg of Columbia Law School. When he

taught civ pro he showed up the first day and he put two words

on the board: "shall" and "may." What a great divide between

sort of a diagonal line, and for years he'd say that at law

professors' conventions, and I would always do that. There

would be some troublesome rules, like Rule 15(a), leave shall be

freely given as justice may require, so that was somewhere in

the middle and certainly was discretionary. But let me tell

you, it's not easy to teach siv pro anymore with "should" and

"may." It's just harder to explain. And I'm not the only one

who thinks that, so I'm here to address two issues. The

point-counterpoint I'll do secondly, and the "must grant"

language that I prefer initially.

So the summary judgment mechanics need to be as firm

and non-discretionary as possible in order for Rule 56 to work

its magic. As a textual matter, the verb "must" triggers a

mandatory grant of summary judgment where the record establishes

that no factual disputes exist and, as a matter of law, the

movant is entitled to judgment. The word "entitled" in this

discussion needs to be given some meaning, and it's meaningless
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with a "should." You're not entitled to anything if the verb is

"should." Pretextual treatment of Rule 56 provides a useful

function without avoiding additional case processing. No other

pretrial mechanism performs this summary judgment function.

So what would happen if we stick with "should"?

By the way, you know, we had "should" for a

year-and-a-half or so. The rule hasn't tilted from a summary

judgment standpoint. On the other hand, I think that's because

of the promise you made and it's a promise that you made no

substantive changes, but you did. Certainly Rosenberg would

have thought that.

What would happen? Well, the word "should" was a

normative meaning in the dictionary meaning "should" describes

an expression of what is probable or expected. The use of

"should grant" means that the rules drafters hope the motion

would be granted. A hope is much less than a word casting a

mandatory meaning. Long-time use of the words "should grant"

will result in the creation of additional judge-made exceptions

to summary judgment grants.

The cost of such discretion are considerable. Making

Rule 56 motions discretionary, which of course this hearing

itself is publicizing the "should/must" divide, this was not

publicized greatly after the style project, so we created a

monster which is going to be unleashed in one way or another

here.
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I lecture frequently on summary judgment. I'll begin

all my lectures on the "should-must" issue from now on, but I

think again I won't be the only one who does that.

So this would guarantee that fewer summary judgment

motions over time will be granted, making summary judgment

discretionary, thus added burdens on district judges because the

movant and nonmovant on each couch their arguments in a

difficult-to-decide, discretionary style. They'll argue for

discretion, and that, I think, will make summary judgment a more

complex process.

The likely decrease in Rule 56 grants will raise the

price of settlements as the transactions costs of litigation

will increase and greater number of civil cases are tried. The

cost of summary judgment would correspondingly rise, as counsel

considering filing the motion would face a more complex process

and may be deterred from filing by the possible likelihood of

the motion's increased cost and possible denial. This would

cause us to change summary judgment as we know it.

Without firm language mandating summary judgment upon

a showing of no genuine issue of material fact, the concept of

summary judgment becomes flabby and ambiguous. In Judge Diane

Wood's terms, summary judgment now performs a valuable "put up

or shut up moment in a lawsuit, when a party must show what

evidence it has that would convince a trier of fact to accept

its version of the facts." This role will be modified
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substantially if the word "must" were not used. There's little

reason in retaining summary judgment in its present form if it

becomes discretionary.

Now, there is discretion in summary judgment. It

comes from the appellate courts. So in three types of cases,

including antitrust, civil rights, and negligence, we see great

reluctance to grant summary judgment in jargon and panel

decisions. Professors Wright, Miller and Kane assert that

"cases premised on alleged violations of the constitutional or

civil rights of plaintiffs are frequently unsuitable for summary

judgment." Substantive --

Professor Marcus?

PROFESSOR MARCUS: Can I just underscore or return to

something you just said? We've heard a number of witnesses

today suggesting that employment discrimination plaintiffs at

least are facing inappropriately frequent grants of summary

judgment. Now, if motive and intent is recognized as unsuitable

for resolution in many instances, that doesn't sound like a

problem. I wonder if you could comment on whether in your work

on summary judgment, which includes fairly pervasive attention

to the matter, this seems to you to be a problem in that

category of cases.

PROFESSOR BRUNET: I'm not sure that would conclude as

a problem, but looking at the data, MJC, the most recent data,

it shows very high grant rates, perhaps arguably
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disproportionally high grant rates in employment discrimination

cases. I think I'm troubled. I'd like to know more about that.

The number is different in negligence cases, so a very, very

small percentage of negligence cases.

PROFESSOR MARCUS: Would it be meaningful if the

frequency of plaintiff verdicts in tried cases were lower also

for that category of cases in deciding whether it's

disproportionate?

PROFESSOR BRUNET: Quite meaningful. What we've done,

of course, in '86, is line up and equate directed verdict and

summary judgment except as to timing. That's what happened.

Again, the rule didn't fall apart from that verdict. If you

make this change of "should" for summary judgment and don't

correspondingly do something for directed verdict, interesting

things would happen.

Maury Rosenberg also talked about the scope of review

on appeal given discretionary rules, that it was abuse of

discretion for discretionary trial court rules in some courts,

so will de novo review cease?

Right now de novo review is a substantial safeguard

for summary judgment losers, and one sees the numbers to support

this. One sees frequently four or five claim cases going up on

appeal where summary judgment has been granted, reversed and

remanded on one of the claims. Every circuit has cases that do

this, particularly in the civil rights area.
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So let me sing a little bit some phrases that we got

from case law.

JUDGE COLLOTON: Professor Brunet, one question on

your point of appellate review. Are you suggesting that if the

word "should" remains in the rule, that an appellant who is

objecting to the grant of summary judgment might be able to

challenge the district court's refusal to make a discretionary

denial, and the courts of appeals would then be addressed into

figuring out what the standards are for discretionary denials

and whether there's an abuse of discretion in not making a

discretionary denial?

PROFESSOR BRUNET: I'm afraid that will be argued.

How it will be decided is a different issue.

JUDGE KRAVITZ: Judge Wood?

JUDGE WOOD: I have one concern actually that flows

from a question Judge Nelson raised earlier and I'd be

interested in your comments on it.

I have the feeling that we may be talking past each

other just a bit on this "must-should" issue. Those who are

arguing strongly for the "must" are really focusing on the

entitlement of the party to summary judgment once all the facts

are teed up and once somebody has figured out what all the

material facts are, whereas the example that Judge Baylson gave

is one where there's a massive record where it would really

perhaps be better to just go ahead and take it to trial and for
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trial management purposes maybe you should think of the word

"postponement" or something. No one has actually said in the

face of a square legal entitlement we're going to refuse to

grant. They're saying something a little more subtle than that,

so that's one question I have, whether maybe part of the problem

here is actually a timing problem.

The other, which other people also mentioned, is the

partial summary judgment where you know you're going to have to

have a trial anyway, you might want to get that legal certainty

of the final trier of fact's conclusion. Certainly on appellate

review if you're reviewing a case where a jury verdict came in,

you really do have to find a legal error. You're not going to

reexamine that, and even if you're reviewing a case where the

trial judge really was entitled to make facts without Rule 52

review, once again, it's a somewhat more robust record to

review.

PROFESSOR BRUNET: You made two excellent points. I

think the committee has a great handle on the partial summary

judgment problem. You need some discretion on it, no question

about it. The solution -- I was going to get to this at the

end, but this "talking past" phrase you've used might get to the

solution.

You need to use the passive voice here and use neither

"must" nor "should." Summary judgment is granted if there is no

genuine issue of no genuine disputed fact and you're entitled to
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judgment as a matter of law. You don't want to use "required,"

you don't want to use "appropriate" in the passive voice.

"Summary judgment is granted if" the sentence should begin, and

that resolves the problem there. This will leave it up in the

air. There already is substantial discretion in so many Courts

of Appeals cases, particularly the civil rights cases, false

management cases, and a handful of antitrust cases.

I'm working on a case now where I talk about summary

judgment, and a quick look which demonstrates the Supreme Court

has pulled back the "quick look" idea and more of course happen

for some reason, but this still grants summary judgments in

antitrust cases quite frequently.

But I think plaintiffs are protected from their losses

by so much of this Court of Appeals in civil rights cases

language, so the 9th Circuit, the 7th Circuit, the 8th Circuit,

the 2nd Circuit, I'm looking at page 372 and 373 of Marty

Retich's and my text on summary judgment law, looking at

footnotes that are four inches thick full of quotes why courts

should be reluctant to grant summary judgment in civil rights

cases, quote, "because smoking gun evidence of discriminatory

intent is rare and most often must be inferred." The 8th

Circuit says there should be a caution that summary judgment

should seldom be used in discrimination cases because such cases

depend on inferences rather than direct evidence.

PROFESSOR MARCUS: Can I just follow-up on what you
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just said? Do you see in that case law a need to include in the

rule some reference to inferences?

PROFESSOR BRUNET: No. You've left burden-shifting

out of the rule. You've left out the case law. You've

clarified timing nicely. You still got what I call the "time

out" rule, that if you need some more time and you're the

nonmovant, you can have it. Those are great safeguards for

nonmoving parties who are often plaintiffs. They need to be in

place, and they are. So we've got the text covered, but we

can't cover every issue, and I think inference is just an asking

for liability to go there.

I'll address briefly the -- I'll skip over the

history. But Judge Clark would like this discussion. Clearly

removing boards treating certain kinds of cases differently in

summary judgment and summary judgment needs to be generalized

over across causes of action under the transubstantiate ideal of

the FRCP is. It's worked well for many years. It should work

well longer.

Let's talk about the point-counterpoint real quick.

The new point-counterpoint and citation requirements of Rule 56

have a cost, but nonetheless are helpful in current practice in

many districts. A good lawyer cites to the record and focuses

the claim, and many lawyers follow this practice and (inaudible)

within the text.

I thought there was one paragraph in the committee
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note that was great because it talked about in negative terms

how difficult some of these point-counterpoint statements can be

with hundreds of points, and I think that needs to be upgraded

and put right near the front of the committee comments. So it's

apt to emphasize the brevity and succinct nature of the way this

practice should work. This is at page 38, line 76, page 85 of

the preliminary draft materials. Nicely contrasted proposal of

local rules cross the filing of documents contain hundreds of

facts and hundreds of pages. This paragraph just needs to be, I

think, squared and --

JUDGE BAYLSON: What page?

PROFESSOR BRUNET: It's at page 85 of the printed

text.

PROFESSOR MARCUS: Around on 182, I believe?

PROFESSOR BRUNET: Yes.

I see four advantages of the point and counterpoint.

Party citations to the summary judgment save judicial time in

searching an unfamiliar record; secondly, statements of

contested and uncontested facts accompany the record serve to

focus the issues that are presented thereby aid the court;

thirdly, opposing counsel should see that the summary judgment

issues with greater clarity following efforts to cite the

record, a vision that greatly facilitates case law promotion and

settlement promotion. This will also help appellate review as

well by mandating a more tidy and transparency in the summary
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judgment record.

I think there's a relationship between the point and

counterpoint and the "should," "must," "may" language, that the

more focused you are on the record, the more precise one can be

in the summary judgment rulings, whether they must or should be

granted, and I think that needs further elaboration. These

changes are not happening in isolation.

I want to thank the committee and --

JUDGE KRAVITZ: Thank you, Professor, for your remarks

and responses to questions.

Are there any other questions that any of us have for

Professor Brunet?

I want to thank you, sir, very much for the assistance

and sharing your views.

We have Professor Schneider. Welcome.

PROFESSOR SCHNEIDER: Thank you.

I'll make sure this is a little louder, because it was

very hard to hear.

JUDGE KRAVITZ: Yes. I'm not sure mine is on.

PROFESSOR SCHNEIDER: Thank you very much for having

me here. Let me introduce myself briefly and then go to some

comments that also will try to respond to some questions that

you've already asked some of the other folks who have testified

that I think I might be able to be helpful on.

I'm Liz Schneider, a Rozel Harper Professor of Law at
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Brooklyn Law School, now visiting professor at Columbia Law

School. I was a civil rights lawyer for many years before

becoming a law professor, clerking for the late United States

District Judge of the Southern District of New York Constance

Baker Motley, and I have been teaching civil procedure and

related civil rights courses for 25 years. And I've been

teaching procedure at Brooklyn, at Harvard, at Fordham, and now

at Columbia. I've also worked very closely with federal judges

as chair of the Academic Judicial Network of the National

Association of Women Judges, and I was very happy to participate

with you a year ago at the mini conference on summary judgment,

which was enormously helpful and important. And as you know

from my written comments, I am quite concerned about the

direction of the new summary judgment proposals, particularly

56(c).

Let me start. First I want to say that when we met

last year there was of course considerable concern by others, by

participants, about this new direction in terms of the 56(c)

point-counterpoint proposals. As I've described in my article

that's subsequently been published, The Dangers of Summary

Judgment, Gender and Federal Civil Litigation that I cite to in

my comments and others cite to as well, which I will be

submitting as an additional comment on these proposed

amendments, summary judgment has, as of course you know, become

the do-or-die place in federal civil litigation and has had a
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huge impact in federal court in removing cases from public

adjudication, in giving judges increased powers as fact-finders,

in having cases and having federal juris prudence in general

developed without full factual and live witness records, and in

comparison, for example, when I began to practice civil rights

law in the 1970s where summary judgment truly was a disfavored

motion, truly was, as Ed Brunet just spoke, the sort of case

law, you know, the sort of invocation of course motive, intent,

etcetera, etcetera, not appropriate for summary judgment. That

has changed dramatically in practice regardless of the

invocation of case law. I'm not saying it doesn't sometimes

prevent summary judgment, but it has changed a great deal, and I

think of course there are also very severe efficiency issues,

much of the process that has developed around summary judgment,

and that I think the proposed amendments we are suggesting

create extensive process for summary judgment where in many

cases it would simply just be easier to allow the case to go

forward to trial.

I want to suggest also, and the Clairmont-Schwabb

material has already been mentioned, the notion that summary

judgment has played and continues to play in terms of choice of

forum in creating the impression, frankly an impression that I

do not think the advisory committee wants to encourage, the

federal courts are courts for defendants, not plaintiffs. Now,

I am empathetic with the degree to which summary judgment cases
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are very, very difficult for judges, and I am very unempathetic

with some of the concerns in terms of, for example, the emphasis

on orderly presentation, that I think has animated some of the

56(c) proposals. I'll talk about that more fully in a minute.

But as we know, summary judgment motions are now routinely made,

and of course often cases that look like good candidates for

settlement will not settle until after the district court denies

summary judgment for the defendant, but what they do require is

for district courts to look at all the evidence in a holistic

way in order to decide if there are genuine issues. And by the

way, I totally agree with your improvement of genuine disputes.

I think disputes is much better, disputes of material fact, but

I do think that for the reasons that I want to highlight, the

point-counterpoint proposals are deeply -- are a matter of great

concern.

Now, first, I think that this is not going to make

judicial decision-making on summary judgment more effective. I

understand that some of what, as I say, has animated these

proposals. Many of you who are judges are concerned about the

fact that you do not believe that lawyers are doing the job that

they should in terms of citation to the record, in terms of

orderly presentation, etcetera, and that that is part of what's

animated, but I would propose to you that I think that that can

be accomplished, and I'll talk in a few minutes about how,

without the full panoply of unnecessary and additional work that
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these proposals would create for judges and additional

transaction costs for lawyers. In my view, these would be

reasons enough to oppose these amendments, but the Federal

Judicial Center empirical studies that have been done in

conjunction with your advisory committee process, also suggest a

potential impact on the resolution of civil rights in employment

cases. That is troubling. And although I recognize that you

are trying very hard to say that this is not going to impact on

substantive law and it doesn't change the legal standard, of

course procedure and substance are interrelated. How can they

not be? And I think the committee here is underestimating the

degree to which procedure and substance are interrelated and the

way in which they will impact.

Now, I think that in order to make the link which you

have -- excuse me -- pushed some of the other folks who

testified earlier on exactly how, let me try to help with this.

I think that the slice-and-dice tendencies of federal judicial

decision-making, which I understand may be hard for some of you

to hear or to really accept, particularly I want to say with

civil rights and employment cases has really underscored the

dangers of summary judgment. We are talking here, and in the

article that I wrote that I just alluded to, I'm now writing

another article about the interconnection of Prombley (ph) and

Daubert and summary judgment, we are talking about judges'

decisions on summary judgment, that, as Martha Dautry of the 6th
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Circuit has highlighted, impermissible disaggregation of legal

issues, or as Professor Steven Burbank sees it, sees less in the

parts by subjecting the nonmovant's evidence to piece-by-piece

analysis, and is not analyzed contextually.

Now, it is not only employment cases, although they

have been highlighted already, that involve complex issues of

fact and law, although employment cases and civil rights cases

do present an enormous challenge. In fact, Professor Marcus, I

think you highlighted that question before in asking about

antitrust and other matters as well, and I would say I think

that's right. Those are all cases where, yes, the routine law

that is invoked says, oh, those aren't appropriate for summary

judgment, but that is not what is happening at the district

court level, and so I think there is good reason to be concerned

as to, even though the stated purpose is more orderly

presentation, to be concerned about whether this new

point-counterpoint would simply exacerbate, frankly, these

problematic tendencies in judicial decision-making.

Let me give you some examples, because in the work

that I did, I saw many, many, many cases in which this was done.

Now let me give you an example of one, Simpson versus University

of Colorado, a case out of the district court in Colorado, 2005,

then reversed by the 10th Circuit, and then ultimately after

reversal many years later settling for $2.5 million. This was a

brutal Title IX claim against the University of Colorado, which
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I'm sure many of you were familiar with. It got quite a lot of

national publicity. There was an almost 80-page district court

opinion on summary judgment, which did not go through, did not

put evidence together in a holistic way, went through in the

most mechanistic way dice and slice, the 10th Circuit reverses

and says effectively there is no way that a reasonable juror

could not have returned a verdict for the plaintiff.

In another case, the Jennings case, and this is --

PROFESSOR MARCUS: Can I ask a question there?

PROFESSOR SCHNEIDER: Sure.

PROFESSOR MARCUS: Did that district have pointcounterpoint rule?

PROFESSOR SCHNEIDER: You know, that's a very good

question and I should know the answer to it but honestly to tell

you the truth I don't. Maybe some of you do know that, but I

should know the answer to it, and I will, since I'm planning to

write additional comments, let me look into that and try to

answer that, but in any event, I mean, the tendency that you are

highlighting here, obviously there is a perp alary -- there is

some preablation of from some district courts obviously who have

put this full point-counterpoint, not the token only 21 I think

or 20 who have put the full point-counterpoint into play, I

understand from the district court perspective that could be

viewed as an advantage to sort of push the lawyers, to marshal,

but honestly, I think this, the kind of dice-and-slice tendency
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that I'm talking about more broadly, is in many, many decisions

that in many district courts that are not simply under the rules

that, you know, the local rules that you're now seeking to

encourage.

JUDGE KRAVITZ: Judge Campbell and then Judge Baylson.

PROFESSOR SCHNEIDER: Sure.

JUDGE CAMPBELL: Professor Schneider, we have 20

districts that have local rules that allow or call for this

point and counterpoint. Is there data that suggests that

summary judgment is granted more often in those districts for

defendants in civil rights cases?

PROFESSOR SCHNEIDER: Well, I believe that the data

actually that Joe Cecil and George Kurt put together for you

actually does not suggest that they're in -- that there is a

dramatic difference between the -- you tell me whether or not

I'm wrong -- but my read of that data does not say that in the

study that was done in preparation for your proposals, that

there is a dramatic difference. I think it's like, you know,

three, two or three points perhaps, but what I'm saying to you,

I think, was more is really beyond that, which is that this

dice-and-slice tendency which has already existed and exists I

believe in much judicial decision-making irrespective, frankly,

of whether or not the district courts have these proposals, has

the potential to be dramatically exacerbated by what you are

proposing. I'm not saying that the data is there yet
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necessarily on that impact because I think we don't know that

for sure, but I think it has the potential, and I think it has

the potential in not just, although my focus has really largely

been because of my own research on employment in civil rights

cases, I believe that it has this tendency more broadly, as well

as of course the added expense and litigation costs that have

already been highlighted, but let me also -- I'm sorry. Go

ahead.

JUDGE KRAVITZ: Judge Baylson?

JUDGE BAYLSON: First of all, Dr. Cecil is hiding in

the background. We have a seat for him at the table if he wants

to sit here, but I don't think there is any way anyone can say

that his data proves conclusively or even inferentially one way

or the other that in those districts that it's used that it has

some substantive impact, but what I want to come back to is, I

would like to just ask you about your assumption that the

slice-and-dice, as you call it, is unfavorable to plaintiffs.

Why? Because I would like you to think about it this way: It

gives the plaintiff, the plaintiff has been, particularly in

employment cases, almost always the nonmoving party. It gives

the plaintiff two ways to make his or her case to the judge.

One way is in the brief, which of course you have now. But the

second way is, it gives them the opportunity to go into the

record, whatever the record may be, including affidavits by the

plaintiff, which very often for some reason are lacking when
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they obviously can be the prime evidence mandating the denial of

summary judgment, but that's a separate point, but it gives the

plaintiff a second way to show the judge that their summary

judgment should be denied because you not only have the brief

where you can make the argument, but you've got this procedure

where you can point to facts in the record, you can point to

data in the record, you can point to deposition testimony. All

it does is requires the plaintiff's lawyer during the process of

discovery to make sure those facts appear of record by an

affidavit or deposition testimony, but it gives the plaintiff

really a second bite at the apple, and I don't understand why

those who argue against this won't deal with that as an

advantage, and you keep assuming it's a disadvantage.

And the second point is that, and I, from my own

personal experience in talking to many others who were at these

many conferences, as it were, that it makes it much easier for

the judge to find out what is in the record, to have this pointcounterpoint with specific record references instead of weeding

through a 20, 30, or sometimes 80-page brief, you know, looking

for statements of fact which may or may not be supported by

record reference. Those are two questions.

PROFESSOR SCHNEIDER: Great. Thank you. Thank you,

Judge Baylson.

On the first question, I don't necessarily assume that

the slice-and-dice is only problematic in terms of plaintiffs.
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Let me say that. What I think I'm suggesting is that I think

that there is a considerable amount, and let me qualify this,

there is a considerable amount of slice-and-dice that goes on in

terms of summary judgment decision-making, because by the time

you are making, who are district court judges, are making

decisions about summary judgment, you often have a huge amount

of material before you, so just trying to put that material

together I understand can be a very daunting task and that's the

reason why I said before that I can understand why the impulse

around orderly presentation has and animated this, but what I

think is that the -- first of all, good lawyers now are making

citations to the record even in the present circumstances. You

don't need to require, or, you know, if you want orderly

presentation, then perhaps you have something that says now that

in the brief, or, you know, that there ought to be specific

references to the material. It should be woven in. I think the

point that some, and what I'm trying to emphasize, is that these

are the integration, interrelationship of fact and law, which is

inevitable in summary judgment, is being segregated out here in

a way that could be very problematic.

JUDGE BAYLSON: But that can be done in the brief.

The brief can make this weave between the facts and the law.

All the point-counterpoint does is say have the facts separated

and supported?

PROFESSOR SCHNEIDER: Yes, you're right, but it does
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provide an opportunity for tremendous litigation, and not

focusing actually on what is genuinely material as opposed to

what our, you know, every issue that can be generated either by

the movant or by the nonmovant, and that can be tremendously

costly from a transaction standpoint, and frankly, ultimately

inefficient even in terms of the purposes for which you want to

do this.

JUDGE KRAVITZ: Judge Rosenthal has a question.

JUDGE ROSENTHAL: I have two questions.

JUDGE KRAVITZ: Two questions.

JUDGE ROSENTHAL: Two questions, if I may.

The first question is this: Generally stated, under

our present system we have a patchwork of local rules, some of

which require point and no counterpoint, some of which require

point-counterpoint, and some of which are silent on the subject.

One of the changes that would be made by the proposal would be

to say to the judges in the various districts, if you don't say

anything, here's how it's going to be, but you do have the

ability in a case-specific order to tailor the procedure or

abandon it entirely, and if the particular case is not well

suited to it for any number of possible reasons, I'd like your

comments on how you view the change from local rule variation to

case-specific variation.

And the second thing I wanted to ask about was for

your reaction to Professor Brunet's suggestion that the approach
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to the must/should issue be finessed, if you will, by putting it

in the passive voice and carrying over the nuances of case law

application of the current standards.

PROFESSOR SCHNEIDER: Well, I would say that on the

first I guess if you're going to go forward -- put it this

way -- with the 56(c) proposal, I certainly like the notion of

the fact that judges can make it tailored to the specific case.

I totally agree with that.

JUDGE ROSENTHAL: I guess the bite of my question is,

is perhaps that if we don't go forward and things remain as they

are, then you've got 50 districts that require -- at least 54

districts, I think it is, that require at least the point

portion, 20 of those require point and counterpoint, and that

may be changing even as we speak.

PROFESSOR SCHNEIDER: Right.

JUDGE ROSENTHAL: But I guess the question is, as

between the current regimen and the proposed regimen, given that

there have been these local rules that have developed, how you

would view perpetuating the current system.

PROFESSOR SCHNEIDER: Well, I like the idea of in

theory of specific case-specific rules, although I have to say

that what I would be worried about, of course, is if you have

argumentation, that would be also more efficient. That would

sort of add to this very cumbersome, you know, summary judgment

process about even what the process should be, but I would
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frankly prefer to leave sort of the evolution of this as it

presently is rather than move to the default position of what I

think you are proposing, so I would much prefer, and perhaps a

case-specific rule would be an alternative in the sense so that

it would be effective for cases, you know, so that lawyers could

make arguments in particular cases as to why, for example, even

local rules that perhaps are now operating, for example, where

you have not just, you know, where you have point but not

counterpoint, for example, might not be offered in a particular

case, so I would prefer that.

JUDGE KRAVITZ: Go ahead. And then we've got to move

on to two more witnesses now.

MR. GIRARD: Now, Professor Schneider, I think Mr.

Chertkof was saying that the slice-and-dice in a way is a

refusal to allow the presentation of inferences in an effective

way. His proposal, as I understood it, was to modify the

point-counterpoint process so that the party responding to the

motion has the ability to bring forward inferences in a formal

way. Do you have a view on that?

PROFESSOR SCHNEIDER: I'm not troubled by that, the

formulation in the present context. I mean, I think, you know,

responding on the material, you know, on the disputed material

issues or material disputes would be appropriate, and I think

that would, as I think someone suggested, bring in a sort of

detailed sort of substantive law into it, but I do share his
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concern that the way that 56(c) now is structured does not

allow, and I thought his example actually of the issue with the

credibility of the witness who, you know, there was a perjury

conviction for, was very compelling in the sense that that is an

issue which would make it very likely that there should be a

trial or would certainly -- put it this way -- militate in favor

of trial. That would not be highlighted. That would not be

brought to the fore through the 56(c) proposal that you are

suggesting because it wouldn't necessarily be an issue that

would be material and it wouldn't come up in the response, and

that is exactly the reason why I think this is problematic,

because those issues of all of the facets of fact and law

together, which ought to be argued in the brief and which can be

identified by particular responses to the record, are being

segmented out in ways that will actually make it more

cumbersome, more inefficient, etcetera.

If I could just say one thing that I hope follows up

on this. You know, someone just said before, I think, Judge

Kravitz, you said -- the issue of oral argument came up before,

and I think you said, oh, my heavens, if we have to have oral

argument.

JUDGE KRAVITZ: I'm a believer in oral argument, but

believe me, there are a lot of people who disagree with me.

PROFESSOR SCHNEIDER: Right. But, you know, that

really sums it up to me in some ways, because that's the point,
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is, that you would want, I mean, not just -- you really want

oral argument often in summary judgment cases because it's

everything. That's it. That's the only place you're getting

to. That's the place in which you can say to the judge, and so

the irony effectively and the direction of all of this, which is

cutting it off in a sense and creating all this paper, it's like

going back to equity.

JUDGE KRAVITZ: Do you have a comment?

Judge Weinstein features favorably in your article as

the paragon of totality of circumstances and everything. And he

uses point-counterpoint, so some of us can resist.

PROFESSOR SCHNEIDER: I am sure that there are many of

you who, and many judges around the country, who use, can use

point-counterpoint in an extremely beneficial way, but we're

talking about something more broader here in terms of default

testimony.

JUDGE WALKER: As my fellow committee members know,

I've shared your concerns for some time, heard me at great

length, and the response which they keep coming back to is,

what is the alternative to a method or approach to tease out

what really matters, what are the decisive issues that a judge

has to confront to decide to grant or deny summary judgment?

And at least I've been unable to come up with an alternative

that satisfies them to this point-counterpoint approach.

Perhaps you can do better.
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PROFESSOR SCHNEIDER: Well, I will try, and I'm

encouraged actually by many of your questions, and I will submit

additional comments on that, but most particularly right now --

JUDGE WALKER: Is there a general approach that you

can suggest?

PROFESSOR SCHNEIDER: Yes. I mean, I do think that if

you want to include that some of what we are talking about here

certainly are improvements, dispute of material factors I think

is important. The emphasis in some of the notes about the need

for orderly presentation, and the emphasis perhaps as I'm

suggesting of doing away with a statement, a separate statement

of material facts, but suggesting that the brief has to include

specific references to the record. I understand it's a massive

material to go through, and of course you as district court

judges want direction in that and often don't get that from

lawyers, but I think that is a much better process, does not add

these layers, does not have the impact in terms of burdening the

plaintiffs, and allows for the integration of fact and law and

the notion that traditionally that this is a disfavored process.

This is a dramatic move over 30 years here in terms of the

number of cases resolved on summary judgment and the degree to

which we now have trials and juris prudence developed on paper,

not live witnesses. So I would seek to find some way to do

that. I will think more on that. I will try to submit -- I

will submit additional comments to the committee to implement to
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try to suggest specifically language details on how that could

be implemented in the brief without the statement of facts.

Thank you very much.

JUDGE KRAVITZ: Thank you very much, Professor

Schneider, and we're grateful for your continuing interest and

assistance in this project.

PROFESSOR SCHNEIDER: Thank you.

JUDGE KRAVITZ: Mr. Vail. Welcome, sir.

MR. VAIL: Thank you.

JUDGE KRAVITZ: You too were a participant in our many

conferences, and we're delighted to have you back.

MR. VAIL: Thank you.

Well, let me introduce myself first and say I'm John

Vail. I'm referenced here. I'm from the Center For

Constitutional Litigation. My firm, we represent the American

Association For Justice, which was the Association of Trial

Lawyers of America, and I think you know who our folks are.

There are people -- well, let me say first, I think I'm also the

guy who might have moved you to start discussion discussing page

limits on comments, so I've given you very extensive written

comments and I'll try not to rehash those here except to the

extent that you have questions that may be germane.

I really want to focus on two points, and one is, as I

identified in the comments, I call it the big whopping

conceptual problem, and another, the other is what I call the
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big hit in constitutional problem, and I'll preface that only by

saying it's not the question of whether summary judgment itself

is constitutional, which is well treated. You know, the

articles are all out there and I understand how persuasive they

are with the committee, but there is a big issue that was

touched on in some of the comments before and I'll come back to

it.

So obviously we represent the plaintiffs, and

plaintiffs have a special role here. I mean, this is really

about something that differentially affects plaintiffs and

defendants. Summary judgment is primarily a defense motion.

It's occasionally a plaintiff's motion, although it didn't start

out that way, as we all know. But one thing that's neglected in

this debate is a burden the plaintiff has. The plaintiff bears

the burden of proof. That is not something the defense usually

does. The defense's job is simply to defeat the burden of

proof, and the way a plaintiff does that is to tell a story, and

this goes to what I call the big conceptual problem, because I

think systematically what summary judgment does in general and

what the point-counterpoint proposal does in particular is

exacerbate the problem of taking away from a plaintiff the

ability to tell that story in the way they want to tell it

because the summary judgment motion starts from the defense.

You get the defense's story and not the plaintiff's story, and a

couple -- I do want to quote for you briefly two statements from
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the Supreme Court, one in a case from immediately the term after

the trilogy was decided. The sum of an evidentiary presentation

may well be greater than its constituent parts, something that

we all know, something that's intuitive to us, from our study

of, for example, literature. This is often why we read

literature and why we write stories, is because facts can get in

the way of finding truth when you don't get the whole story.

Listen to the court elaborate on this point a decade after the

trilogy, and this is a longer quotation and it's in the written

material, both of these are, but I think it's worth reading to

you. Evidence tells a colorful story with descriptive richness,

unlike an abstract premise whose force depends on going

precisely to a particular step in a course of reasoning. A

piece of evidence may address any number of separate elements

striking hard just because it shows so much at once. Evidence

thus has force beyond any linear scheme of reasoning. As its

pieces come together, a narrative gains momentum. With power,

not only to support conclusions, but to sustain the willingness

of jurors to draw the inferences, whatever they may be,

necessary to reach an honest verdict and the party with the

burden of proof may prudently demur at a request to interrupt

the flow of evidence telling the story in the usual way. In

sum, a syllogism is not a story, and a naked proposition in a

courtroom may be no match for the robust evidence that would be

used to support it.
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That's in a criminal case. Some people here have

alluded to the fact that some of the things that happen in

summary judgment obviously would be intolerable in the criminal

context, and I think this goes to why. One, you're dealing here

not simply with -- you're dealing with a problem of cognition, a

problem of how people perceive facts of how we come to know

things, and it tells me that this process clearly is not

appropriate in certain kinds of cases, and this goes back

historically, and there was a debate when Rule 56 came into

existence about whether it should apply to some kinds of cases

or not, whether it should have categories of cases to which it

was applied, and that was rejected. It was commonplace at the

time, but it was rejected.

PROFESSOR MARCUS: Sorry to interrupt you here, but I

think I'm looking at your statement, in particularly the

detailed material on page five in your Footnote 25 which is part

of your historical background.

MR. VAIL: Uh-huh.

PROFESSOR MARCUS: Rugelia and Olchief were criminal

cases dealing with the admissibility of evidence. Those were

the two cases you just quoted, and in one theme that seems

sometimes to emerge from comments the committee has received is

that the wind has been blowing the wrong way on summary judgment

for quite a while. In Footnote 25 you say the trilogy is

considered a categorical reversal of the prior conception of
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Rule 56. While I think that's a very interesting kind of

academic point, but one reaction might be these objections to

these proposals really seem to involve standing in front of a

moving glacier that's doing something different on other topics.

Are you really mainly concerned about dangers in summary

judgment practice that you perceive and attitudes towards the

standard for granting summary judgment, or are you mainly

concerned with the proposals actually out for comment?

MR. VAIL: Well, I would say both. I mean, clearly,

you know, it should be pretty obvious which way I think the wind

blows, and I'll go with Dillon on this one. I don't think you

need a weathervane to tell, but I want to note that I've made a

career of standing in front of trains that move a lot faster

than glaciers. I do indeed consider myself sacrificing my

substantial body in that way in this effort.

JUDGE KRAVITZ: I think what Professor Marcus' point

is really a serious one, which is, that we clearly have heard

that people don't like summary judgment. The prior witness

said, you know, it just is granted too much. You've got to

stop, more cases have to go to trial, and it sometimes sounds as

though people are attacking this rule because they just don't

like summary judgment and they just want to sort of go after

this rule as a proxy for no more summary judgment, rather than

saying, like it or not, we have the trilogy, we have summary

judgment, can we make the process better, which I think is what
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the committee is trying to do, as opposed to we have the -- I

suppose we could get rid of Rule 56, but we're not toying with

doing away with summary judgment, and I think that's what

Professor Marcus is getting at.

MR. VAIL: Judge Kravitz, I think it's clear you don't

oppose the use of summary judgment at all. It's really the

question of its use in the kinds of situations we've heard from

today - when inferential evidence is important, when subjective

things such as intent or motive are important. Those kinds of

cases are simply not well adapted to the procedure, and they're

not -- and what I'm suggesting to you, particularly I think in

the social science that's identified and quoted from on pages,

what, eight and nine of my testimony, that there is a systematic

problem of cognition of how people deal with facts and how you

learn from the objective facts that you find in the universe,

and this process exacerbates the problem of looking at a set --

competing sets of objective facts to try to draw subjective

conclusions from them.

JUDGE WALKER: Let me, if I might, take you up on that

premise which seems to be the premise of your presentation.

Summary judgment motions are not the first time that the

plaintiff gets to tell his story. The first time that a

plaintiff gets to tell his story is generally the Rule 16

counters, and I'm surprised, continually surprised, at how many

plaintiff lawyers let the defendant's lawyer prepare the case
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management statement instead of coming in at that first

opportunity, which is the first time that the judge sees the

case, and then and there tells the story, so isn't the premise

of your argument against the proposal here that you have assumed

that the Rule 56 motion is the first time the plaintiff gets to

tell his story, and that in fact is not the case?

MR. VAIL: No, I don't think so, because it's still --

it's the question of what's before the decision-maker at the

time the decision is made, and, you know, frankly, it's quite

clear. One of the impulses for this rule, one of the things

that impels it, is the desire of you to have in front of you in

one place at one time those competing statements so that you

don't have to seek reference to other things, and I think again

it's this question of particularly of inferences and

subjectiveness.

I thought the examples that Mr. Chertkof gave you, for

example, about, you know, you can find, and it seemed some

people were shocked at the idea that if, you know, the employer

submits an affidavit that says, well, you know, I didn't know

that the 20-year employee was fired, that you have to find that

that's the case, and, no, it's obviously not. And it's the

power of circumstantial evidence is reduced in this narrative,

if you will, that you have before you that is not a narrative

that the plaintiff gets to engineer and choose in the effort to

discharge the burden that the plaintiff has that the law puts on
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the plaintiff.

Let me go to my second point, because I think that's a

good segue to it. And I think our general themes here are about

discretion and about there may in fact be not necessarily some

categories of cases, but some categories of evidentiary decision

when you see those kinds of evidentiary issues in a case are a

signal that this kind of point-counterpoint procedure is not

appropriate. Again, I think those -- and I think that's worth

the committee talking about. I think they will be very

difficult to define. It's something that escaped the committee

in 1938. But I do think because of our underlying concern about

dispute resolution and about the ability of people to tell their

stories and ultimately the foundation of trust that that creates

in employers' roles.

JUDGE ROSENTHAL: If the dividing line between cases

that might be appropriate for the presentation that is described

in the amended rule and currently exists in some of the

districts, and cases that are not well suited for this, is

categories of evidentiary characteristics, if you will, if I

gather from that that that is only definable on a case-by-case

basis or best determined on a case-by-case basis, and if that's

right, and that's a question, if that's right, is a rule that

requires the judge or allows the judge to decide on a

case-specific basis what the best procedure is, more consistent

with what you've outlined or less consistent with what you've
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outlined than the present state of affairs which has a variety

of local rules adverse to the topic?

MR. VAIL: I'll take the easy piece first. If it's

true, I think it would be more consistent with our position.

Whether it's true, that, you know, I think that's -- I can't say

here. I think that would take some real ...

JUDGE WEDOFF: Would your concern be substantially

reduced by the proposal that inferences be expressly included as

among the potential responses to an alleged fact?

MR. VAIL: I think that that is so, if you were

allowed to write a narrative about the inferences. Now, there's

been a substantial question about whether that could be in a

brief or whether that should be in the statements, and my first

question, of course, would be, how many pages are you going to

give me for the brief? Because addressing it in a brief could

be quite problematic because it could be, you know, it could

take quite some length and some places have fairly short page

limits on summary judgment briefs, and some, especially the kind

of cases I'm dealing with, they're usually pretty meaty on the

legal issues and you have to deal with these issues too. You're

really looking at a compressed space, so there are different

ways to deal with that concern, but I think that is a concern,

and I do think ultimately, though, that it is better in the

point-counterpoint for that cognitive reason that I talked about

about having those things in front of you right then.
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Now, my other point was, is --

JUDGE KRAVITZ: Just a short matter.

MR. VAIL: Yes, I can make this one quickly.

We have an argument in front of us for an entitlement

program for defendants, and that's the entitlement to summary

judgment via the word "must" and it was alluded to that that's

what's intended and I do believe that is what's intended by a

preponderance of that, and you alluded a little bit to the

appellate scenario, so let me raise the appellate scenario.

If there is an entitlement to summary judgment,

summary judgment is denied, the case goes to trial, the

plaintiff wins, now you have an appeal and the appellate court

go back and reverse the denial of summary judgment at this

point, well, the current case law we have suggests nobody

interprets different language, and it seems to me that the big

whopping constitutional problem there is that if the answer to

that question were yes, it sure starts to sound a lot like a

reexamination of the jury's findings of facts, which is, I

think, a whopping Seventh Amendment problem. The only way I can

think of to cure that problem would be to grant a right of

interlocutory appeal, and I don't think I need to do anything

more than suggest that everybody in the room will understand how

problematic that could be. So that's my second point.

JUDGE KRAVITZ: Thank you very much, Mr. Vail, for

your continued interest in this project.
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MR. VAIL: Judge Kravitz, if I could suggest one more

thing. There was some testimony about the empirical work and

Joe Cecil's work and what that means. I've cited you to a new

empirical piece by John Schwabb, the dean of Cornell Law School,

who is also a Ph.D economist. I think that it's --

JUDGE KRAVITZ: Is this the bad to worse?

MR. VAIL: Pardon?

JUDGE KRAVITZ: Is this the bad to worse?

MR. VAIL: Yes.

And I think it might even be worth your while to

invite some discussion from Professor Schwabb about the

relationship of that to this process.

JUDGE KRAVITZ: Good suggestion.

Mr. Gottschalk?

Our third mini conference participant in a row here,

so again, thank you for your continued interest in this project

and willingness to help us along.

MR. GOTTSCHALK: Well, thank you very much. I

appreciate the opportunity to be here, and having been here

before and having submitted extensive comments, I feel like I'm

certainly straining the patience of the committee. You're very

generous to have us all back.

My name is Tom Gottschalk. I'm here in my capacity as

the nonexecutive chair of the Institute of Legal Reform, a

subsidiary of the U.S. Chamber of Commerce.
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During the discussion of point and counterpoint I have

to say it's certainly alive and well in the scheduling of

witnesses since I follow Mr. Vail and I probably have a

counterpoint to his point as we go through his discussion.

JUDGE KRAVITZ: You'll need to have citations.

MR. GOTTSCHALK: If I can cite to the media, I have

several of them, I'm sure.

I will try to be brief because I do also rely on the

written comments we've presented, and in fact, I really asked

myself whether I could add anything new or different by my oral

testimony here today and imposing on your time, predictably

recognizing this came out in discussion with Mr. Vail and

others.

Just to get into my background, 27 years in

litigation, primarily in the federal courts, most often for

defendants, sometimes for plaintiffs, including civil rights

plaintiffs, more recently 13 years with General Motors, so if I

seem a little distracted this morning I am, but obviously

supervised a lot of cases, but not in the trenches as many of

your witnesses have been on summary judgment. Now that I'm back

at Kirkland & Ellis in an of counsel capacity, I'm sort of back

in the frame, but that is the experience from which I am

speaking, but I'm only speaking here on behalf of the Institute

of Legal Reform.

But as Mr. Vail indicated, it's obvious from the
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surveys and obvious from what you hear, plaintiffs don't like

summary judgment very much and defendants would like to have

more of it if possible, and I thought it's interesting we get

into this discussion, and also since I will focus on this Rule

56 proposed c language of "must" versus "shall," that with the

rules committee intent, I'm not trying to change the standard or

change the substantive law of summary judgment. We spent a lot

of time discussing what the correct standard should be and what

the policy should be and sort of wondering why that is and then

wondering why it is that with semantics like that that don't

usually occupy my time, why am I so passionate about feeling

since the change was made to "should" it ought to be reexamined

and changed back to "must," so I'll spend most of the few

minutes I have trying to step back and give you some perspective

more from a personal standpoint almost on why I feel strongly

about it.

I not only rely on our past submissions, but I think

the committee is aware of the law view article in the American

University Law Review in October of '08 by Professor Shannon on

should summary judgment be granted, and think he spells out the

principles that I would endorse very well.

Let me just again try to step back and say that I want

to give you a perspective in response to some of the comments or

at least respond to some of the comments made earlier this

morning about the importance of this issue and then try in
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fairness to address some of the competing considerations, the

reasons against my position, just to see if I can at least

indicate how I think they are being accommodated in the proposed

rule.

I think from the standpoint of the principle involved,

the prospective that I bring to this really I realize is heavily

influenced by the work that a number of us as general counsel of

corporations did as multi-nationals. We know the American legal

system is preeminent in the world. We know it is widely

respected for good reason. The only negatives are the issues of

high cost and intrusiveness which goes along sometimes with the

fact-finding function of the courts in the process. As we go

around the world and promote the rule of law and we look to the

U.S. model, what are we really concerned about?

Well, in many countries, as you all know, you get

trapped in the court system that is less than ideal where no

matter what the merits are, you are hung up in court

indefinitely and the courts are influenced by political

pressures and economic influences and personal biases and that

is the court, and we know it not in this country but in other

countries it goes all the way down sometimes to basic corruption

that ties you up in court and you are literally a hostage in an

extortionate process. Now, that's not going around in this

school and I don't mean to imply that in any way, but it

explains a little bit about why I feel so strongly as a matter
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of principle that with the word "shall" and the way it's been

interpreted in the past, and having been there and now making a

change what do we say? I think from the standpoint of a

litigant, the notion that a system of justice, whether it's a

motion to dismiss on summary judgment, directed judgment, or

directed NOV, if a litigant is entitled to judgment as a matter

of law, it must be granted. There is no justice in a system

that doesn't grant that. You can say justice delayed and you'll

get your eventual result at the end of the trial, but the

principle is, if you make this burden, plaintiffs think it's too

low a burden, defendants think it's too high a burden, if the

court is satisfied after all the processes you put forward that

the movant is entitled to judgment as a matter of law, there is

no way to defend a legal system that doesn't grant it. That's

just my fundamental position on that. That's why I feel so

strongly about it.

So I look and say okay, well, what's driving back

against that principle? But I think it largely, at least from

what I hear and reading the comments, is the issue of fairness.

I put aside administration of justice because really in my mind

it doesn't enter into it as it does for most of you who are

judges, so I'll address that if you'd like, but I really think

it comes down in most of your concerns as fairness to litigants,

particularly individuals, people of limited means and capacity,

and it's appropriate that the courts have keen sensitivity to
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the fairness of the judicial system in applying these

principles, but I look at the current section f, proposed

section d, which specifically talks about the ability of a court

to deny a motion for summary judgment. It doesn't say a motion

that isn't otherwise meritorious or whatever, but it says in a

fiat that the proposing party may present an affidavit that sets

forth specified reasons for not being able to bring forth

proposed facts. That protects them in the event where discovery

is needed, it protects them in the event that other reasons

which can be addressed later in the trial/pretrial proceedings

can help supply a basis for proving that fact, so the court can

defer the motion or whatever, so I think we have built into Rule

56 and always have and you certainly maintain in the proposed

rule precisely the section you're looking for in subsection d,

and the reason I like subsection d is because it at least

requires some discipline in the process of explaining why the

facts are absent, some sort of affidavit. It's obviously not

going to be necessarily a fully factual affidavit, but it's

going to be one that's submitted in good faith and gives the

rationale for the fact that the evidence sits in the defendant's

office and in a locked file and we need discovery to get it or

whatever the reason may be.

So in summary, I feel that with that section f soon to

be d there, to then incorporate an undisciplined, unrestrained,

if you will, undefined, notion of discretion back into Rule
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56(c), should without any idea of what really mean by "should"

and contrasting that with "shall," is going to present a serious

issue in terms of meritorious motions once the grounds have been

satisfied of being denied.

Now, I know that the committee asked a question --

this is the third point -- as to what may be recent experience

this year under "should" should be looked at and examined as to

whether it suggests that my concerns are overblown or not, and

while I've not read all the cases, I've had research done and

clearly it indicates to me that the courts are wrestling with

the word "should" and taking to heart the notion that no change

in standard was intended, they go back to Celotex, 30-year or so

precedent, and say "should" really means "shall," shall be

granted forthwith, so they grant it. But my point is, using the

word "shall," we actually note we have the Supreme Court

endorsing it as a mandatory command, if you will. We still have

some cases that had language, not holdings, but language, that

suggested that there was some sort of implicit discretion in

meritorious -- timely meritorious motion. That occurred under

"shall." We know what's going to happen using the word

"should." Whether it's a question of too many papers or too

busy workload or whatever, meritorious motions are going to be

set aside and litigants are going to be exposed to the full cost

of discovery on all other issues, the contested issues, and the

full cost potentially of trial and delay before getting the
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judgment that they were entitled to earlier on.

The last comment I've heard, I haven't researched, but

in all my years of experience, I have never on appeal asked the

court to disregard a jury verdict against me and go back and

grant a summary judgment motion. I just can't imagine an

appellate court is really going to commence that sort of

argument if at trial the evidence is really there and supports

the verdict, so I don't think that's really an issue.

I told your Honor I would be brief in my remarks.

Those are the comments I want to make. I'm happy to take

questions if you have any.

JUDGE KRAVITZ: I appreciate you holding up your end

of the contract here, and we have a number of questions, though.

Judge Walton?

JUDGE WALTON: Mr. Gottshalk, you've heard Professor

Brunet this morning suggest we should finesse this

"shall/should" dichotomy by stating simply that summary judgment

is granted if there is no disputed issue as to a material fact.

What's your reaction to that suggestion?

MR. GOTTSCHALK: Other than a grammatic one, I'm

wondering if the custody is "to be granted," I like the idea of

it being mandatory, but at this point, sir, I thought we were

too far down the road to go back and consider that. I think

summary judgment is granted, it's confusing a little bit to the

reader for its compliance because it sounds like a ruling was
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just made as opposed to is to be granted, but I think is to be

granted is as strong as most.

JUDGE KRAVITZ: It looks like everybody is rushing to

our break, Mr. Gottschalk, but we thank you for your comments

and your passion about this subject and your continued interest

in it.

We will take a break at this point for ten minutes.

Though I know we clearly need it, if we try ten, we may get back

to it.

(Break taken at about 11:07 a.m.)

JUDGE KRAVITZ: Great. I took our break early, but it

was no disrespect to Joe Garrison, who is an esteemed

practitioner from the great state of Connecticut.

Mr. Garrison, the floor is yours.

MR. GARRISON: Thank you.

As a trial lawyer, I'm not sure whether this is a

better time to appear or else the time when I would have been

holding you back from your break. Everybody is kind of

wandering back in now, so it's a mix. I'll do the best I can

anyway to engage you somewhat.

My background is that I am a past president of the

National Employment Lawyers' Association, which is the

plaintiffs' bar in employment cases, and I'm a past president of

the College of Labor Employment Lawyers as well, but that's, as

you know, a neutral body.
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The fact is, the plaintiffs' bar is not monolithic on

this point-counterpoint issue, because I myself as an individual

support it. Maybe that's because I practice in Judge Kravitz's

district, where we've used it for quite some time.

JUDGE KRAVITZ: I won't hold that against you.

MR. GARRISON: I hope that's true, and in fact, I

think that what Judge Baylson said is right, that in the proper

usage of point-counterpoint, the plaintiff actually has a

reasonable chance of making -- getting two bites at the apple.

My own view is that the exception to the point-counterpoint is

that there are submissions which are clearly abusive, and I've

cited some of those in my letter, and I think that's the key to

dealing with this and making this rule a good rule.

You heard earlier, and I can confirm, that in

employment cases, which are a large part of the district court

dockets, that defense counsel say that it is tantamount to

malpractice not to file a motion for summary judgment. And the

reality is across the country that these are large-firm

defendants that are going against small-firm plaintiffs.

Although it is certainly possible, and from time to time

large-firm lawyers represent plaintiffs, that's usually not true

in employment cases because these are positional conflicts that

prohibit representation of both sides, so that your large

employer does not want you taking a position that might favor in

any individual cases some individual executive, I'd say, in the
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case of a large firm representing an individual.

My firm has seven lawyers, and that makes us

relatively large in Connecticut. And I think in many states in

the country we would be a relatively large firm for one which

represents the employee's side. We are careful in our own case

selection, we use very up-to-date technology, and we have also

the financial resources to combat abusive motions. Abusive

motions are what are defined in my letter, that is, motions that

have a huge number, in individual cases particularly, of

supposed material facts which are not at issue.

But the normal office, the normal office, and I know

this from the National Employment Lawyers' Association, which

I've done for so many years, for plaintiffs is a solo and maybe

will go up to three lawyers. It's usually a solo or two. And

those offices cannot confront the abusive motion adequately.

The problem with the proposed rule is that the proposed rule

gives no guidance at all to those lawyers. And in answer to

what Judge Kravitz was talking about earlier, deeming admitted

for purposes of the motion, here's what I would say to that:

I think ironically, accepting a fact for purposes of

the motion is worse than not responding at all, because in fact,

when you don't respond at all, that puts some onus on the judge

to review the record. You've said that later in the rule. And

so a lawyer would actually be better of not responding at all

rather than deeming admitted because the judge would then have
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to review the record, maybe find something, and admitting it

simply lets the judge off the hook to that degree, so the

strategy ought to be simply don't respond rather than deem

admitted. That's no strategy at all, it's not really an answer,

and that's why I have to say you have to do something about

this. Certainly not responding or admitting for the purposes of

the motion carries the risk of guessing wrong on materiality,

and if you guess wrong, you could lose the summary judgement

motion, and then as a solo or a two- or three-practitioner

office, you get a malpractice case or you get a grievance from

your client, so you have to respond. I'm not sure that that is

clear to the group here, but you really have to understand,

you're presented with a real conundrum as the plaintiff's

lawyer. You have to respond to these because you can't take

that chance of guessing wrong.

Now, there's also been a comment that if you submit

one of these huge motions of mat -- or statements of material

fact, that should equal the denial of summary judgment, just

because there must be some facts in all of those that would be

material, but that simply isn't so in our experience anyway, and

I say this very respectfully, but frankly, judges do look at

these and they do not sanction them in any way whatsoever.

So let me just say for you, suppose that you did as a

judge see 250 motions of material -- or statements of material

fact in an individual case and the plaintiff did not respond.
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Does that mean that summary judgment would be denied? Of course

it doesn't. Summary judgment would be granted, and so there is

simply a serious need to address these what I call abusive

statements.

One other comment I want to make in response to what

Judge Kravitz had said, and that is, that, you know, in his

experience, and I know this is accurate, that when cases have

had a denial of summary judgment and they go to trial, more

often than not the plaintiff has lost. What I would

respectfully submit is that more often than not, in the good

cases the cases have been settled, and that's why they're not on

your docket any longer, you're only he's the cases that are very

close cases and cases where in fact the quality of the evidence

really did favor the defendant, and that's what happened in

trial, and therefore the defendant won. The good cases, the

no-pay cases -- those are the no-pay cases. The good cases have

been settled, so that's why there's a reduction in the docket.

I would ask sort of the rhetorical questions of why should there

be no adequate way to respond to officially. Why should there

be no adequate way to respond with minimal costs, no adequate

way to respond that's consistent with rule one. In the comments

it says courts know what to do. That's fine. Courts may well

know what to do, but the plaintiff lawyers have to know what to

do, and there's nothing in this rule that guides the plaintiff

lawyers about what to do, so because I know it's helpful to
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suggest a remedy, I've offered up a remedy of a motion to

strike, and I realize that reflexively none of you like that, I

know that. And you're saying oh, my god, a motion to strike,

we're going to see those all the time and we're going to see

collateral litigation and it's just going to be another massive

motions. I understand that that's the reflexive reaction, but I

want to tell you that I think you are wrong in thinking that.

The rules were because the courts interpret them, and in my

opinion in this situation in the new procedural Rule 56, it

would not take local custom very long to evolve in any

particular district. The early decisions that would enforce the

rule that says that these are to be concise statements of

material fact would spread very quickly and I think they would

be honored by all the other judges in the districts. Why

wouldn't you honor them? You want short and concise statements

of material fact. You don't want these kind of abusive

submissions. And also, the idea of do-overs is not going to be

engender client appreciation or satisfaction, especially if the

counsel who has to do the do-over bills for his or her time. If

I were the client and I had had my counsel submit 250 statements

which had just been rejected by the court on a motion to strike

and I said, oh, now I've got to get it down to something

reasonable, and, by the way, I'm going to bill you for that, I

don't think that would be well accepted by the client, so I

think that that's another experience factor that you should take
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into account here in the idea of whether collateral litigation

will proliferate. I don't think it will, and frankly, if

counsel takes the more ethical view and doesn't bill for the

time, then that's a good learning experience as well, isn't it?

So I think that these kinds of abusive motions will not often be

replicated if you put in a remedy, and the plaintiffs' bar

deserves it, the small practitioner deserves it. They don't

know what to do otherwise.

JUDGE KRAVITZ: Judge Campbell?

JUDGE CAMPBELL: Mr. Garrison, if you're faced with

250 paragraphs, statements of facts, and you file a motion to

strike, what's the motion say?

MR. GARRISON: The motion -- here's the benefit of it:

It doesn't make me guess. Sooner or later, and I think sooner

rather than later, the courts in each district are going to

flesh out what it means to have a short and concise motion or a

statement of material facts. I think that that's what's going

to happen, so I think that what it is, is it simply says this

does not comply. That's all. It says 250 -- this is an

individual case; 250 statements of material fact does not

comply. Judge, please decide. I mean, obviously I wouldn't do

it quite that short, but I'd try to be pretty short and concise

myself if I were filing such a motion, that that's basically,

though, your Honor, what it would say.

JUDGE CAMPBELL: So your motion doesn't say paragraphs
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1 through 234 are irrelevant, strike those and look at the

remaining 16. It says strike the whole thing because this is

abusive.

MR. GARRISON: I think you're actually getting to the

level of what the problem is and I appreciate that, because what

you're talking about is where the collateral litigation does get

really ugly and problematic, so I think if you deal with it the

way that I'm talking about, you deal with it in really a much

more focused manner, because I do believe, like I think you do

from your question, that if I were to file a motion saying,

well, you've got 250 here and 50 of them are hearsay and another

20 of them are irrelevant and another 30 are background and so

on, then, you know, you've got the same problem as the court

that you would have had if you had to just decide it, so if what

I'm saying is accurate, what I'm also saying is that if you

allow a motion to strike, it too has to have some boundaries to

it and the boundaries ought to be pretty clear and precise and

they ought to simply be you reject the whole thing and do it

over or you don't. And if you don't, then the plaintiff has to

go through and answer them. I realize that there's something

that you have to do. You have to look at it and you have to do

some weighing about whether the plaintiff is right, that it

should be rejected, but I would submit in the ones that I have

proffered for you here, I was right in all of those. Those were

abusive motions and it would have been better to have them sent
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back and have the defendants have to do them over again, and you

got to put something in the rule, though, to allow it, and so

maybe it's too much of a blunt tool, but I think it's probably

better than nothing. Thank you very much.

JUDGE KRAVITZ: Now we're having to switch here. We

have Theodore and Van Itallie, if I got that right. Al Cortese

is going to come at the tail end.

MR. VAN ITALLIE: Thank you.

My name is Theodore Van Itallie. I am the head of

litigation for Johnson & Johnson. I've been at J&J for about

twelve years, and prior to that was a litigator in New York in

private practice for almost twenty years. I moved from being a

producer and seller of litigation services to a major consumer

of litigation services, and that's the perspective that I would

like to bring to the discussion. I'm a tremendous admirer of

the process and attention that is brought to the rule-making

process and I really am privileged to have a brief opportunity

to comment.

I would like to address the shall/should/must issue.

You know, it's remarkable the amount of fright that those words

now carry, but this has obviously become very consequential. It

would have been one thing simply to have made the stylistic

change from "shall" to "should" without a lot of back and forth,

but now to persist with the word "should," I would suggest with

sort of legislative history that's created, it would be much
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more consequential than simply not commenting on those 2007

stylistic changes, and would I also frankly feel that to finesse

the issue respectfully would, I think, create the suggestion

that the committee has embraced in some fashion the discretion

that courts have, and I think in some circumstances feel they

should have.

JUDGE KRAVITZ: I suppose finessing it could have this

one advantage, which is that case law would develop and the

Supreme Court might eventually say that "is to be" means "must"

or might say "it" means "should," and whereas if we pick one

we've sort of decided where that case law is going to go. I

mean, that would be the argument, I think, for finessing.

MR. VAN ITALLIE: Well, okay. I guess I understand

that. I guess, you know, I think what we've heard from comments

around the table and from the number of the witnesses is the,

you know, is the inertia against summary judgment, that I think

there's some -- there's an institutional feeling for, and I

understand that in many instances it may well be that, you know,

sending the case to the jury is frankly more or at least seems

to be more efficient under certain circumstances than dealing,

wrestling with a very complex motion and committing the

decision-making to writing.

I do want to make a point, though, I'm not sure has

been made so far, which is, from my standpoint, I do think that

there is a, you know, significant policy issue, and I think when
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the court has an opportunity to apply the facts, to apply the

law to undisputed facts, there is a societal benefit, in my

mind, in drawing lines and creating guidance, which I can

certainly say that this committee is extraordinarily hungry for,

and that that opportunity to the degree that that's delegated to

a jury down the road is lost, and if not just lost, really sort

of undercut.

Now, I mean, there are very respectable commentators

out there who have noted the consequences of the litigation

theory environment that we have from all sorts of issues, such

as the lack of -- the disparate playground equipment to

discipline in the classrooms to, you know, the excessive cost of

health care, medical care. I'm not suggesting that we're

talking about that issue in any kind of significant way, but I

do think that there is in effect an obligation in the court. In

the courts where there is a circumstance of undisputed fact, to

make that application of law in an opinion to provide the

guidance that is needed and given the complexities that, you

know, we're all working under so that choices can be made and

risks can be assessed and decisions can be thoughtfully arrived

at. And it's just, you know, it is a problem from my

standpoint, to take out of providing that decision-making to a

jury in a way that, you know, cannot be teased apart. You

really can't figure out what the guidance is from a jury

resolution, and I think every time you, you know, you lose that
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opportunity to make a pronouncement of law to undisputed fact,

you know, you have, you know, created a greater adversity to

risk, and to, you know, making thoughtful decisions.

JUDGE KRAVITZ: Maybe you can help me with this since

I've been struggling with it. As I've listened to all the

commentary, plaintiffs' lawyers tell us that summary judgment is

granted too often and very few cases get through summary

judgment, and defendants' lawyers tell us that summary judgment

is never granted enough and that very few cases get summary

judgment and many deserve them, and I'm just trying to figure

out where the reality is in here, because either you're

litigating different cases or being the good advocates that you

are or something, but we've heard this constant refrain that

summary judgment is out of control and district judges granted

every case, including cases that clearly don't deserve it, and

then we hear from the defense bar that the one thing that we

know is that summary judgment is not granted enough. Where is

the truth, do you think?

MR. VAN ITALLIE: Yes. Well, first of all, we're both

plaintiffs and defendants. I mean, we have an enormous

intellectual property asset that we pursue aggressively as

plaintiffs.

JUDGE KRAVITZ: Sure. So maybe it depends on the type

of case.

MR. VAN ITALLIE: Maybe I'm dodging the question to
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some degree. I guess what I would be concerned about in this

discussion is sort of tipping the balance one way or the other,

and, you know, losing the appropriate opportunity to get summary

judgment where it should be granted without regard to whether

it's granted too little or too much at this point. What

concerns me is that we are at risk of creating a record that I

think will feed into the institutional bias against summary

judgment. It's a demanding, tiresome, you know, complex process

that I think I understand why, you know, the kind of resistance

to it, but I think the benefits are not just cost savings to

defendants like myself in that setting, which are enormous, no

question about that, but I think that they're -- again I would

just return to my point, I think there's a benefit in getting

rules articulated, and this is the perfect vehicle, one of those

perfect vehicles to do that.

MS. VARNER: To correspond, just that I'm finding it

curious that you're speaking of an institutional bias against

summary judgment in light of all the data that we've seen about

how frequently it's granted, but my other thought, at least, is

that for that small subset of cases that do go to a jury trial,

you do actually get legal guidance from a number of things.

Certainly the instructions to the jury tell the world what the

state of the law is for that particular case and you see where

the boundaries are you, if you will, in which cases are the ones

that are so closely balanced that you have to get the trier of
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fact and resolve it, so I'm not sure this is a world where

there's lots of guidance of summary judgment guidance, zero on

the trial side.

MR. VAN ITALLIE: Yes, I definitely agree with that.

There are obviously other laws to be articulated, but again, I

agree with the general proposition that the number of cases that

ultimately do get to trial is a fraction of what it used to be

and therefore that opportunity is I think diminished, and I

think that's partly a function of, frankly, you know, the cost

of the process as well as the timelines involved. So I think,

you know, again what concerns me is losing the opportunity to

have, you know, rules articulated at a juncture that every case,

many cases will have, whereas that, if, you know, if that you

pass that point in time, the possibility of settlement, you

know, I think obviously increases, and not having that, the

ability to get guidance at the trial stage is going to be gone.

JUDGE KRAVITZ: Judge Baylson?

JUDGE BAYLSON: I would just like you to comment on

the whether using the word "must" would possibly be not in the

public interest in three types of cases: One, as I referred to

in a prior question where there may be undisputed facts but it

would be very hard and time-consuming for the judge to make that

decision. Second would be where the facts are undisputed but

there are inferences that could be drawn in favor of the

nonmoving party. And third, where the judge feels the case has
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a great deal of public interest and it's better from a societal

point of view as opposed to what you said, granting summary

judgment, to let it go to trial and have a jury be instructed on

the law and make a decision, even though the facts are in

dispute.

MR. VAN ITALLIE: Well, I would be on the other side

of each of those examples, frankly. I think that kind of makes

more my point in reverse. You know, I think that the complexity

of resolving the motion shouldn't be a sufficient rationale for

not deciding it or granting it, and I think likely I would argue

there's an opportunity for, in a case of significant public

interest, if it's a situation of a client, a lot of facts that

are undisputed to make a much more significant contribution to

the ability of entities to guide their conduct by applying

those -- by applying the law to those facts. I get in the

middle of, for example, of drawing inferences from the facts. I

assume that those become embedded in the facts to some degree,

and I guess in that situation to the degree that you really have

disputes, then, you know, I think in that setting I think it

would be appropriate to deny the motion, but in the other two

examples I would argue it's under the obligation of the court to

decide the motion as the most imperative.

The other point that I did want to make, which hasn't

been addressed so far, is with respect to Rule 56(h). I feel

sufficiently strongly about the benefits of securing appropriate
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summary judgment rulings that I would argue for an appropriate

objective cost-shift standard both for inappropriately made

motions but also for oppositions that are objectively

unreasonable, and that what I understand under 56(h), that

affidavit, this is a provision that is essentially not enforced

and really doesn't contribute, I think, to the operation of the

rule, and I would argue for a lesser threshold that would, you

know, make the decision to make the motion and the quality of

the opposition more significant in the standpoint of the

litigants.

And then if I can comment quickly on Rule 26, and

really I applaud the changes that are proposed in Rule 26.

JUDGE KRAVITZ: Mr. Marcus?

PROFESSOR MARCUS: 26 is what I wanted to ask a

question about.

JUDGE KRAVITZ: Go ahead.

PROFESSOR MARCUS: Well --

MR. VAN ITALLIE: Well, yeah. I mean, you know, I

think that these are important changes to the rule. I'm very

much in favor --

PROFESSOR MARCUS: I wanted to ask you a question

about something that I think is going to be mentioned by another

witness later, but with your experience particularly at Johnson

& Johnson, I believe you might be able to shed light on it. I

believe a witness coming up later is planning to urge that it
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would be desirable to expand the changes to cover communications

between counsel and witnesses not required to provide a report,

particularly in-house experts, which might be something that.

J & J would encounter, and also that it would be desirable to

recognize somehow that communications between counsel and the

staff of an expert should be covered. Do you think that those

issues are matters concerned in terms of what we have published

for comment? I'm just asking you because you're here and I

think those may come up later and you might have some background

to comment on them. Though they do not relate, as far as I'm

aware, the approach in Australia or anything mentioned in your

written comments to the committee.

MR. VAN ITALLIE: Well, yes. I understand what you're

saying, and I understand that drafts that are exchanged in the

report for a non specially retained expert would have the

protection of --

PROFESSOR MARCUS: The disclosure drafts like drafts

of a report are covered by the protection that we have tried to

adopt.

MR. VAN ITALLIE: Right. Right. And I guess I am,

you know, I am a little uncertain as to how communications

between counsel and a non-specially retained expert are handled

because they're obviously exempted from this explicit limitation

to compensation and facts and assumption sort of trilogy that

applies. I guess one argument would be without calling those
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exceptions out, work product protection applies overall and that

you're not even entitled to that limited access to the, you

know, the exchanges between, you know, counsel, and that not --

the employee witness. I mean, I would suggest that that may be

the more logical interpretation of not having made that

exception, and particularly now that, you know, that the

committee has in effect, you know, backed away from the notion

the earlier suggestion committee notes that, you know, work

product protection would not apply. I would go, I would take

that, I guess, going proposition, take that approach that

because the exceptions are not called out, that in general there

is work product protection and you're not entitled to get into

the exchanges between counsel and employee expert responding or

treating physician in that setting.

JUDGE KRAVITZ: Great. Thank you very much --

MR. VAN ITALLIE: Thank you very much.

JUDGE KRAVITZ: -- for your time and thoughts.

So I think I'm right on this, that Mr. Williams is not

-- he's in trial?

MR. CAIRNS: Yes, sir.

JUDGE KRAVITZ: Those rare trials that happen once a

decade. Now we have Mr. Cairns.

MR. CAIRNS: Actually, Mr. Williams was trying to

avoid a trial by seeking emergency appeal before the West

Virginia Supreme Court.
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Good morning. My name is Matt Cairns. I am the first

vice president of DRI - The Voice of the Defense Bar. Some of

you may be aware of us. We're 23,000 members, principally

defending the interest of individuals and businesses in civil

litigation. Mr. Williams is the president of the DRI and I'm

here in his stead.

By way of background, I am a practicing attorney from

Congran, New Hampshire, from the law firm of Gallagher, Callahan

& Gartrell. My written comments were handed out I think after

the break and I'll try not to regurgitate them and focus on a

couple of questions that we have here.

My experience is set forth and I tried products

liability cases, commercial disputes, civil rights matters on

the defense side as opposed to the other witnesses who have been

here earlier that all seem to have all been on the plaintiffs'

side. I would like just to talk about a few matters.

First of all, to get to the professor's comments, I

think I might be the person you're referring to who was going to

talk about Rule 26. I'll take them slightly out of order in my

comments.

I noticed the distinction between the communications

piece in Rule 26, and I raise the question without having formed

a clear opinion on what the answer should be. I personally

believe work product should apply. I think in many instances

attorney/client privilege should apply, but I can also see the
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argument on the other side, particularly with regard to the

attorney/client issue on having the in-house product safety

engineer who doesn't regularly get called into court because the

company doesn't regularly get called into court and that's not a

part of his typical job duties. Is he in the control group? Is

he really the client? That question remains, and I suggest that

further thought has to be given to that either by this body

through comments or through further testimony from other people

down the line.

PROFESSOR MARCUS: Would you regard that person as

distinct from, say, the treating physician?

MR. CAIRNS: I would.

PROFESSOR MARCUS: Okay.

MR. CAIRNS: I would. Because I'm focusing more on

the attorney/client issue, that communication would be.

PROFESSOR MARCUS: The attorney-client protection

would exist without regard to anything we do here.

MR. CAIRNS: Correct. I understand that. And I think

the point is, a comment needs to be sort of laid out. I draw

the distinction between in-house and a treating physician

because in-house is really a client-related person. The

treating physician is just by fortuitous a person who the

plaintiff went to to treat. I know in New Hampshire you cannot

have -- the plaintiff's counsel can have unfettered

communications with a treating doctor but the defense attorney
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can have no communications with that doctor outside of a

deposition, and we have faced that situation and

unfortunately -- fortunately, we've been able to resolve it.

When we tried to ask what did you and plaintiff's counsel talk

about, and they'll throw out a privilege objection and we'll

suspend the deposition, hash it out and work around it for the

sake of our clients, but that possibility exists there where one

side has unfettered communication, the other side doesn't, and

I'm just looking for perhaps a little quid quo pro in the

comments or the drafting of the rule to that regard.

I also in my comments I talk about communications with

the staff. I use the example in my comments about retaining the

MIT engineer as your expert. Well, the MIT engineer probably

has a staff of grad students and Ph.D wanna-bes who are working

their way up, who are doing a lot of the leg work for him and

he'll be the one who ultimately signs the report.

PROFESSOR MARCUS: Can I ask you a question about your

example?

MR. CAIRNS: Sure.

PROFESSOR MARCUS: Do you find that the current regime

of broad disclosure interferes with your ability to retain, say,

an MIT professor-type expert or are those folks accepting of the

current disclosure?

MR. CAIRNS: I've had no problem with that, the

experts.
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PROFESSOR MARCUS: The reason I'm asking that question

is, the one thing we have heard is that some university

professor-type experts may bridle at some of the antics that the

current regime seems to make necessary.

MR. CAIRNS: I can understand that. I've heard a

little bit about it, but in my personal experience and talking

with my colleagues, I've not run into that problem at all. I

think you need to have, just as our paralegals are protected by

a privilege when they work with us, I think the staff of the

experts should have a similar measure of protection in the

communications so that if I'm calling the Ph.D's research

assistant, that that is as if I am calling the Ph.D engineer.

PROFESSOR MARCUS: Do you engage in sort of

brainstorming sessions on your own strategy in the case with the

underlings of the expert?

MR. CAIRNS: Sometimes they're on the phone call with

us, in which case the question is are they outside of the,

because you have a third party in the room just like if you had

a third party in the attorney-client room, does that take you

outside? I think these are open questions, but, yes, several

times I've tried to reach Professor Smith. He's been

unavailable. His research assistant has called back and said

please talk to me, the professor is traveling in Singapore and

he won't be back for a while and we're all working on the

project, so I've had to talk to them.
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PROFESSOR MARCUS: The reason I'm asking that

question, one of the objectives here is to make easier the

interaction in the lawyer's preparation of what I call the

lawyer's work product, and to distinguish what you might call

the expert's in-house work product is something different in

terms of the lawyer's work product. Do you see that at issue

with underling communications?

MR. CAIRNS: First of all, I see it as that being

neither a defendant- or plaintiff-biased approach.

PROFESSOR MARCUS: Oh, I suspect that's correct.

MR. CAIRNS: I think that -- well, I don't feel like I

have been impeded so far. I can see myself facing this, and

increasingly too in society if somebody wants to raise that

issue.

PROFESSOR MARCUS: Thank you.

MR. CAIRNS: With regard to the point-counterpoint

section, briefly, I've heard Mr. Garrison and Professor

Schneider and Ms. McCarron talk about the boxes of documents

that are coming in or the 250 statements of material fact. I

have never filed anything with that many statement of material

facts, and frankly, nor have I had that filed against me in New

Hampshire, and perhaps because our judges have made it fairly

clear that they don't want that. We have a local rule that does

require not number of paragraphs, but it does require a concise

short statement of material facts and/or rebuttal, and if you
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don't do the rebuttal, everything in the movant's statement is

accepted as true. I think if you're going to file 250, you're

cutting your nose off to spite your face and you are creating

issues of fact and the judge -- you are not focusing the court

where you need to be focusing the court, and that is the

problem, and I think lawyers should know that and should do it

and I don't see that as a risk for a good lawyer who's drafting

a good motion for summary judgment or a good reply, because

you'll see the replies where they throw everything up against

the wall and say there's got to be an issue in here someplace.

I think that's just as bad and I think that's just as

counterproductive to your case.

JUDGE KRAVITZ: If anybody else has any further

questions of Mr. Cairns?

Thank you so much.

MR. CAIRNS: Thank you very much for the opportunity.

JUDGE KRAVITZ: Mr. Morrison?

Mr. Morrison, welcome back. And also an alumnus of

the mini conference.

MR. MORRISON: Thank you, Judge Kravitz.

The facts are stubborn things, as John Adams famously

declared. The rule that you put together is a great exercise

that has the opportunity to bring both clarity and to provide

the judiciary and litigants with an additional tool for just,

speedy, and inexpensive resolutions, and I think it's high time
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that we focused on these and got them done.

From the standpoint of "must" and "should," I speak to

you as an old trial lawyer. As you know, I've tried over 240

cases to jury verdict, argued over 60 appeals. I was inside for

about 7 years with the New York Stock Exchange company as

general counsel, executive vice president and I've bought a lot

of legal services, like Mr. Van Itallie, and I've kind of seen

this from both directions. The advantage of the "must" or the

"shall" is simply that if the case is properly teed up or the

issue is properly teed up, the case or the issue is disposed of

at that point.

Judge Kravitz, you raised a question, what's the truth

about summary judgments? The truth about summary judgment is

that rarely does the plaintiff win outright a summary judgment.

Rarely does the defendant win outright a summary judgment, but

what does happen is cases are focused and dialed in through the

summary judgment stage. Frequently if you make a good motion

for summary judgment, teeing up these stubborn facts, your

opposition will look at those stubborn facts and say, Judge, I

no longer want to bring my unfair trade practices cause of

action. Judge, I dropped my antitrust cause of action. These

causes of action designed to get double or triple damages plus

attorneys' fees and punitive damages fall out of the contract

case and we're left with a contract where there really is a

question as to whether there was a breach or not, whether there
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was cause or not, whether or not the amount of damages is

appropriate. And so with a summary judgment, the truth, Judge

Kravitz, is that we end up with three opportunities for speedy,

just, and inexpensive resolutions. One is the moment you make

that serious motion. That brings everybody to the table without

the judge being involved at all, just the filing of the motion

and the need to respond. The parties get very serious about

what causes of action should go forward and what causes of

action do not, and the point-counterpoint puts a fine focus on

that.

The second point at which the parties come together is

during oral argument and frequently the phone is not picked up

but you show up in court and two or three causes of action are

conceded or two or three defenses are conceded, a very important

point in time, and then the judge may say one or two defenses

are out, and one or two defenses are in, but I have real

concerns about the following and I'm going to continue to think

about it, and so there's a second point for a just, speedy, and

inexpensive resolution. And if the parties are facing a true

"must," a true "shall" decide this, and you know the judge is

going to decide it, you have the moment before a decision at

that point in which you can make the settlement or a just,

speedy, inexpensive resolution, and then finally, after the

judge rules, with the ruling set forth in a judicial sense, not

a jury sense, thumbs up, thumbs down, but in a judicial sense,
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here's the reasons why I find the law to these facts means this

outcome, granted or denied. At that point the parties have yet

another chance for a just, speedy, inexpensive resolution.

MR. KEISLER: The scenario where there seems to be

maybe the broad assessment that a "may" or "should" is better

than a "must" is the partial summary judgment scenario, and it

seems to me that in some ways your analysis which says that one

of the ways, virtues of the summary judgment process is that it

pares down a case, even if it doesn't get rid of it, would

almost be -- could be understood to suggest that there shouldn't

even be a "may" option when the issue is partial summary

judgment rather than summary judgment on the whole action. Is

that something you are suggesting, or am I just reading that

into it?

MR. MORRISON: I think you're reading that in. There

shouldn't be a "may" on a partial summary judgment. It should

be a "shall" in terms of disposing of the issue. Either there's

a genuine issue of material fact or not, the facts being

stubborn things.

MR. KEISLER: So you're saying there really should be

a mandatory requirement to grant partial summary judgment in

those instances in which it's justified?

MR. MORRISON: Yes, because it is just, speedy, and

inexpensive, because we no longer under those circumstances have

to litigate this extraneous issue which is frequently designed
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from a defense standpoint, where I usually represent people who

get sued, sometimes I sue people, but usually if I'm suing

somebody, I'm going to try to sue them for the maximum I can, so

I'm going to go for treble damages, punitive damages, attorneys'

fees, and I'll try to figure out statutes that I can create to

expose them to the maximum so that we're talking about a

settlement discussion I can say, look, you're exposed to the

dark shadow of punitive damages or treble damages or plus

attorneys' fees. In fact, most of those situations go away

before trial. Rarely do we try those cases when they're set

forth.

I would just, in response to a question you asked

earlier, is it fair for a judge to punt, to simply say I'm not

going to give you this opportunity to have the law on your facts

resolved because it's too hard or too time-consuming. I would

suggest that that is not only inappropriate, but it would be

grossly unfair for the U.S. Judicial Conference Rules Committee

to reach a conclusion that judges should punt when it's too hard

and too time-consuming.

Second, if it's in the public interest, that is, the

public is very interested in the issue, the public has great

transparency into a judicial opinion. That transparency can be

dealt with on the editorial page. Those reasons, when we share

reasons with each other, we come to better conclusions. Juries

are not required to share reasons. It's a thumbs up/thumbs down
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kind of situation, and in that context your public interest is

not benefitting more by a jury trial than by the reasoned

decision of a judge in the public eye open for debate.

And then finally, you asked a question earlier about

inferences, if inferences can be raised from the same stubborn

facts on both sides. I agree with Mr. Van Itallie. Probably

it's not appropriate for summary judgment. There is a genuine

issue of material fact and the judge still has that right to

make that decision.

I would also just go back to your point, Judge

Kravitz, with regard to the question of whether or not we should

go with an if/then sort of ambiguity, if you will. Would it be

reasonable for the United States Judicial Conference to send up

a rule that we know would have eleven different Circuit opinions

and then the D.C. Circuit just because we'd like to have some

case law as opposed to the clarity? It seems to me that we're

focused on clarity here and that one of the things that we have

succeeded in doing by changing "must" to "should" is to create

an ambiguity where none existed before, and so there would be no

bias on my side towards suggesting that case law should somehow

develop in the eleven Circuits, perhaps creating a conflict for

the Supreme Court to resolve when I think we can and should

agree that clarity should be our primary focus, so if we are

thinking about "must" versus "should" in the context of speedy,

just, and inexpensive, what is it that creates the speediest,
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most just, and most inexpensive dispute resolutions? One is a

limited amount of time. A judge who says there's a limited

amount of time so we can't throw more bodies at it and we can't

throw more litigation at it, so if a judge will hold on to that,

and if there's a date for summary judgments, for summary

judgments issue dispositive and case dispositive, that date

becomes a critical deadline moving forward, and it does result

in speedy, just, and inexpensive resolutions.

The second issue is decision-making without the jury

in the box. That's the second thing that drives just, speedy,

and inexpensive resolutions, and if we have that date by which

these motions are made, the motions are made and then responded

to effectively, you have a dramatic and very useful tool for the

courts to use in driving appropriate resolutions, and that

what's tried is what must be tried.

I would say to you that I agree with some comments

that have been made that there is a possibility of abuse, and I

would suggest that Rule 56(h) be modified so that you have an

objective standard for cost shifting, and I testified to that

before when I was here. I think that's fair. I think if you do

run into either plaintiffs or defendants teeing up motions for

summary judgment that are inappropriate, you should give the

judge a cost-shifting rule, not a punitive rule, not a you did

this in bad faith, not a subjective rule, but a without

reasonable justification. Just without reasonable
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justification. That's not an ethical violation. It's not a --

it's not a punishment, but it says so the judge can say to the

litigants, look, you file one of these motions without

reasonable justification, you require all of this counterform

response and it's really not a good motion, I want the judge to

have the tool to say that wasn't really fair, I'm going to

transfer the costs and transfer the costs at a reasonable

justification question as opposed to a subjective bad faith

finding that there was ill motive on the part of the lawyers.

And, you know, Rule 56(g), nobody ever finds bad faith on the

part of the lawyers, and so it's an ineffective rule. It's just

plain ineffective.

Finally, I would comment very briefly on Rule 26,

disclosures with regard to the experts and attorney

communications. I think we've done a great job of trying to

isolate the attorney communications and keep that out of the

discussion with the experts. I think that's an appropriate

thing to do. I would suggest you should do it for the

assistants as you were just discussing, to include everybody in

that overall umbrella so that you have open discussion with the

experts, full discovery of what the expert actually thinks, but

you're not trying to penetrate the attorney communication with

the experts. Just as a practical matter it doesn't work and

when you allow that kind of penetration it just goes forever and

ever and there's a cottage industry of litigating over what the
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attorney said and what's in the attorney's file and so forth.

PROFESSOR MARCUS: Could I just follow-up with you on

Rule 26? You mentioned acrobatic maneuvering --

MR. MORRISON: Yes.

PROFESSOR MARCUS: -- in your written commentary.

We've heard about that kind of thing.

MR. MORRISON: Yes.

PROFESSOR MARCUS: Do you find that that is an

obstacle to hiring some of the potentially most attractive

expert witnesses who may simply be unwilling to engage in that

sort of maneuvering?

MR. MORRISON: Yes. There are academic experts, the

best in their field, scientists, who are reluctant to engage in

the artificiality of the litigation process, simply because they

don't want all of the information in a text message that can't

be discovered, so to speak. They don't want to go through all

of this machination of how do we keep our communication private

until I have enough information to reach a conclusion.

JUDGE KRAVITZ: So I was just talking to an academic

who said I actually like to take notes.

MR. MORRIS: I actually like to take notes. Imagine

that, Judge Kravitz. They actually like to take notes, they

actually like to gather facts, they like to follow-up soon, so

if those facts can be verified after the lawyers talk to them,

and that process is made totally artificial by the way we handle
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in many states the Rule 26.

JUDGE KRAVITZ: Thank you.

MR. MORRISON: Thank you very much.

JUDGE KRAVITZ: Thank you so much, Mr. Morrison.

Mr. Parker, who, like Mr. Garrison, has had the

misfortune of meeting in a different setting.

MR. PARKER: Thank you, your Honor.

Before I begin, I should comment that Mr. Morrison has

been my friend for over 20 years, and as a young lawyer I was

smart enough at that point to realize that I would never follow

Mr. Morrison in anything that I did, so for 20 years I've been

successful in that until today, so no matter how my comments go,

I will deem this somewhat of a failure personally, and I broke

something that I promised myself I would never do 20 years ago.

Having said that, my name is Bruce Parker and I'm here

as the past president of the International Association of

Defense Counsel. The IADC, as we call ourselves, is the oldest

civil defense trial bar in the United States. We do not have

separate written comments because we are one of the founding

members of the Lawyers For Civil Justice, LCJ, and participated

in the preparation of their written comments which are before

you. Also I am here as a defense lawyer. I have been

practicing for 30 years, the last 18 of which have been in

various forms as national trial counsel in a number of mass tort

litigations, which has given me a wonderful opportunity to try
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cases to verdict in a number of states, both federal and state

courts throughout the country and litigate and not try to

verdict necessarily in an equal number of other states and

federal courts, and that has given me perspective on the Rule 26

amendments, principally because most of my practice over the

last 18 years has been either expert testimony, expert

preparations, developing experts for my witness -- my clients --

excuse me -- and for doing cross-examination of experts on the

other side.

So starting first with Rule 26, on behalf of the IDC,

the LCJ, and myself personally, I hardily endorse the changes

that have been made with respect to the extension of privilege

to expert drafts and communications. I can tell you personally

that my clients have had to suffer for a number of years with

unnecessary, in my opinion, unnecessary costs incurred in the

retention of additional experts whose names are never disclosed

in the course of litigation so that I can meet with them and

have, if you will, more candid discussions with them that might

otherwise not be wise, if you will, tactically in the context of

an expert who's been disclosed as an expert, and this is

mentioned in the advisory comments, and I hardly endorse that as

being the experience of myself and many of my colleagues. It

will share costs in litigation.

Yes, sir?

PROFESSOR MARCUS: Could I just ask a follow-up
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question on that?

MR. PARKER: Please.

PROFESSOR MARCUS: Do you find yourself in those

interactions, including interactions with the underling staff of

these people and seeking their opinion sort of separate from the

lead person that you hire as an expert?

MR. PARKER: I cannot -- I certainly have had

interactions with graduate students for the most part of the

professors that have worked with the institutions. I cannot

recall ever asking them for their opinion on something. They

principally are doing the data backup, work analyses of some

form or another for the expert that I'm using, and I can tell

you that I never talk to those people when I'm litigating in a

jurisdiction where there is no privilege communication.

As we mentioned in the comments, I practice in a good

number of jurisdictions where counsel stipulate away whatever

rule might exist and we agree that we simply will not do that

with each other, so when I'm in a jurisdiction with those rules,

I don't do that.

JUDGE KRAVITZ: I have a follow-up question.

MR. PARKER: Yes, Judge?

JUDGE KRAVITZ: We've heard from some that this

proposed Rule 26 might be a sort of a movement away from

Daubert, and I know you have lots of experience with Daubert.

Have you had any experience with Daubert motions where
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communications between the expert and the lawyer have figured

prominently in the decision whether to allow the expert to

testify or not?

MR. PARKER: No, and I don't understand the comments

that were brought to you that this would have, and it may have

been done by defense lawyers, my colleagues, but, no, speaking

candidly, I cannot think of any instance where in my years of

litigating in Daubert issues, and there have been many, that

conversations between an attorney and a true retained expert --

I'd like to comment certainly on what I call your disclosure

experts because they are different and I have very different

views about those -- but with respect to a truly retained expert

for whom a report has to be provided, what I need is a fair

opportunity just to cross-examine that individual. What the

plaintiff's lawyer tells that person, that expert, ultimately I

don't really care about. If I can't do my job by disclosing the

weakness of their scientific opinions in front of a jury, I've

not done my job. I will tell you -- I'm jumping ahead in my

comments -- that the single greatest impediment to the truthfinding process is not the proposal to grant some form of work

product privilege over communication, but it is the conduct of

lawyers, defense and plaintiffs' lawyers, to engage in

obstruction in a deposition by speaking objections

notwithstanding local rules to the contrary, and experts on both

sides who give nonresponsive answers that go on for three or
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four pages, and the reluctance of courts to provide any

opportunity to discipline that behavior, so it goes on because

lawyers know, so that we're not confronted in federal court with

seven-hour maximum depositions. I can tell you I will come out

of depositions with many experts for seven hours with about an

hour-and-a-half of useful testimony because five-and-a-half

hours have been spent with nonresponsive rambling about

something, and that is the last thing a magistrate or district

court judge wants to hear from me, is, Judge, here's a Rule 16

motion, compel this expert to come back and answer these

questions. They just simply are not worth filing. As Mr.

Morrison said, they don't get addressed, so that's the single

greatest impediment in the real world to the truth-finding

process as it relates to experts. It is not the

confidentiality, in my experience.

Now, I do -- I jumped ahead and I kind of threw it out

there, I do have a very different view about what I will, with

your permission, call disclosure experts. Frankly, there is no

consensus in my organization or within the LCJ for our

constituent members on this issue. I will tell you as a defense

lawyer working with companies, manufacturers and the like, that

often times the most knowledgeable people, the most helpful

people to help me figure out how to do my cross-examinations,

how to do my directs, are the in-house company scientists, and

while you may say that, well, Parker, you shouldn't worry about
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that because you have an attorney-client privilege, I will tell

you that in a diversity case that's a state law decision and the

state laws are awfully varied with respect to under what

circumstances the attorney-client privilege protects

communications of that sort, so part of me says, boy, for all of

the reasons that have been discussed by the advisory committee

for extending confidentiality, I would sure like that for

disclosure witnesses, but on the outside come down and say "no"

for this reason:

As a defense lawyer in personal injury litigation,

toxic tort and products liability, perceived by the jurors the

most credible witnesses we hear over and over and over again --

I'm sure plaintiffs hear the same thing -- are treating doctors.

They are perceived by jurors to be independent. Whether that's

true or not is not of any consequence. They are perceived that

way. There's a bias on retained experts. There's a bias on

company scientists. And jurors, properly or not, they discount

their opinions somewhat by that bias, but treating doctors are

held out differently.

Years ago in many states when I first started

practicing, when a plaintiff filed a complaint they put their

medical condition at issue and they waived any doctor-patient

relationship and in many states I could talk to the doctor if he

or she were willing and I could save my client money. I didn't

have to take depositions or anything else. For whatever states
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still have that rule, HIPPA ended it, so there is no effective

way for a defendant to have communication efficiently,

cost-effectively, with a treating doctor other than through

deposition, and as all of you who are district court judges know

who were involved in complex personal injury litigation, there

are many, many treating doctors in the average case, so I need

to know, because the plaintiff's lawyer can meet with that

treating doctor, I need to know what the treating -- excuse

me -- what the plaintiff's attorney told the treating doctor.

It has happened to me where -- and it's nothing improper about a

plaintiff's lawyer doing this, they're doing their job as an

advocate -- they will tell the treating doctor certain juicy

facts that they've extracted out of a couple of company memos

sort of just to set the stage, and then oh, let's talk about

your treatment to my patient, and I walk into the deposition and

get this overt hostility from the treating doctor that I never

would have anticipated, only to find out as we go through it by

forced disclosure that, well, the plaintiff's attorney shared

some information from his or her perspective. I'm not faulting

them for that, but it certainly didn't give the whole story.

When I'm able to give the whole story to the treating doctor, he

or she sits back and I see in many cases a whole different

demeanor develop, so if a privilege were extended over those

communications and even if the exceptions were written to that

as the exceptions are now written, so that I can get into
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matters considered by the expert for their opinion, I dare say

that most treating doctors will say not that the plaintiff's

attorney told me I'm considering for my opinion of what I

diagnosed in my patient, and so I will be thwarted in my efforts

to find out what was said to condition that expert, and that's a

price I cannot pay for my expert, so -- I mean, for my client,

so as a private practitioner, I just assume if that's the price

paid, I just assume leave it the way it is.

The committee asked for questions, invited questions,

and I do have two observations. Forgive me if they sound a

little mundane, but those of you who are district court judges

will find yourself having to resolve this issue, and that is,

you've created, I think properly so, a new category of experts,

what I call disclosure experts. Increasingly we have case

management orders in federal courts that limit arbitrarily, in

my opinion, the number of experts that we can call in a case.

Just pick a number. I often times don't know where the number

comes from. It's just a number. Where does the disclosure

expert come in to? We're limited to fact witnesses. Is this

disclosure expert a fact witness? is it an expert? And that may

sound trivial, but it actually is important because at the front

end if I know what those rules are, I can decide and make

recommendations to my client as to what experts we really do

need to develop if in fact I'm going to have to put a disclosure

expert in the category of an expert for purposes of seeing
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those.

PROFESSOR MARCUS: Can you tell me, those limits sound

like they are coming either from local rules or practice of the

judge, Rule 16.

MR. PARKER: Case management rules.

PROFESSOR MARCUS: Are you saying that the national

rules should somehow provide directives about what judges can do

on those matters?

MR. PARKER: Well, I know that I'm asking too much,

that the rule would do that, but if there was a sense in this

committee in the advisory notice as to how you might think about

that, I think it would provide guidance to counsel so that we

don't engage in that fighting. I don't want to have any more

costs associated with litigation because I actually do like to

try cases, and the more efficiently and cost-effectively I can

get a case to trial, the more likely I can convince my client to

let me try the case. And I can tell you we'll be fighting about

that.

JUDGE KRAVITZ: Don't file summary judgment.

MR. PARKER: Judge, that's actually a good segue.

It's not something I do very often, I can tell you.

There is one other point, and I know that this is -- I

think it needs to be said but it's not within perhaps the

direction of this committee, and that is, that I am concerned

that good lawyers will fall unwittingly perhaps into a trap down
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the road by virtue of if it should become the rule that there is

a confidentiality over discussions with experts and drafts,

which I favor, that often times in multi-district litigation

these same experts are used in state and federal cases, and it

is not uniformly the rule in state cases that drafts are

immunized from discovery, and I am fearful, in fact, I will

begin having practice seminars through our association and my

partners, as to what we have to be thinking about when we name

experts and we work up an expert and a report is prepared by

that expert in the context of a federal case where the drafts

are protected and can be destroyed legally without any

suggestion of wrongdoing and that expert is then perhaps

simultaneously named, by mistake perhaps in terms of timing, not

intent, in a state court case and then to find ourselves subject

to a spoliation claim with all sorts of sanctions associated

with it with the destruction of the drafts in a state court case

where that report is provided, it will happen, and through no

intentional act of counsel, trial counsel on the plaintiff or

defense side, and we figure out how that's going to work out.

It's the aspect of our federal-state system.

Let me move to Rule 56. I know I'm overstaying my

welcome.

JUDGE KRAVITZ: Make it real short.

MR. PARKER: You mentioned I shouldn't file so many

summary judgment motions.
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JUDGE KRAVITZ: I just want to get you to trial

sooner.

MR. PARKER: Judge, sometimes you have to file them

when it shouldn't go to trial. I'm was amazed sitting here as a

personal injury lawyer to hear how many summary judgments are

granted. I can tell you in my field of practice I can probably

count on two hands the number of summary judgments that are

granted to both my clients and my colleagues' clients in our

area of the law in the last, I don't know, five years. It just

look at your Reporters and look how infrequently summary

judgment is granted in personal injury litigation. I just don't

see that to be a problem. I will say that when I was preparing

for my talk today and I read on Rule 56 now, that with regard to

the "shall" and the "must" controversy, that this committee

wrote in the invitation for comment that the change was made in

order to preserve the meaning that "shall" had acquired in

practice. That rather hit me. I have argued summary judgments

in many, many states and federal courts around the country and

it had never occurred to me that the granting of summary

judgment was discretionary. I did a very unscientific, biased

poll of defense lawyers outside my firm and inside my firm. I

practice at Venable. It's a national law firm. Not one lawyer

had ever learned that the granting of summary judgment had

become discretionary, had become practice, so I was taken aback

quite frankly by that, and I would endorse strongly for a reason
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I haven't heard addressed here today the return to some

mandatory terms "must," and that is, as I look at it from a very

simplistic perspective, and that is, it seems to me that it is

essential for the integrity of our litigation process a phrase

that this committee uses in comments regarding Rule 26 for this

simple reason: As a trial lawyer, I know about the vagaries of

jury trials. My clients get it, plaintiffs get it, but we all

say to our clients that there is something where if the facts

are truly undisputed and the law is in our favor clearly that

there is a mechanism where I can tell you, client, that you will

get judgment as a matter of law. And now I think about how I

need to explain this to my client if discretion becomes the rule

of day and I go back to say, you know, the law is in your favor

and the facts are undisputed but the judge can just deny it for

whatever the reason the judge wishes to deny it because they

have discretion. I'm sorry, but that breeds a certain

disrespect for our litigation process. I have the good fortune,

I believe, of having to council many foreign companies that do

business in the United States and foreign lawyers who seek

counsel here through my association ties. Explaining our

litigation system itself is enough of a trial sometimes, but

explaining to them how on the law and the facts a party is

entitled to judgment but a judge can properly under

discretionary rule say "no" for whatever reason, and Rule 56(a)

as written out would say it's even discretionary whether to give
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reasons, that just breeds disrespect for the system and I

strongly hope that this committee returns with a mandatory term.

Thank you, Judge.

JUDGE KRAVITZ: Thank you, Mr. Parker. I appreciate

it.

Welcome.

MS. HERRON: Good afternoon, and I promise to be

brief.

This is my first foray into visiting with this

committee, but I'm here to speak on Rule 56, which I have a

particular affection for. I practice in West Virginia, and that

is a state that does not have a format with respect to point and

counterpoint, and I think that we have to get past the hurdle

that summary judgment will work in every case because it clearly

does not, and once we get past that hurdle we need to understand

that it's an impossibility to craft a rule that will make everyone happy or that will apply in every case. But that doesn't

mean that in cases where summary judgment is appropriate that it

should not be granted. That is the reason I am a proponent for

the mandatory or the "must" standard. I welcome the opportunity

for opposing counsel in cases to have counterpoint and to

provide me with those specific counterpoints, and I think that

if you look at the rule as a whole, it indicates the mandatory

standard. If you have point and counterpoint, you have the

statement of facts that set forth to the court those undisputed
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facts, and if you're confident in that process, then you should

be confident in the "must" standard, and if there is a genuine

dispute, then it should be discretionary but only if there is a

genuine dispute.

The other aspect, if you have the point and counterpoint, it permits the court the ability to provide the detailed

reasoning it has for supporting its position as noted in the

rule in granting summary judgment which allows the parties to go

forward to ultimately decide and have a well-reasoned opinion

and basis for the granting of summary judgment.

There's been talk today about the volumes of material

that will be produced with point and counterpoint. I submit

that that doesn't compare to the volumes of material that go to

week after week after week of trial in cases where summary

judgment, if properly supported, should have or must have been

granted. I am a proponent therefore in the standard that Mr.

Morrison spoke of, which is the objective or the reasonableness

standard with respect to provision H of the rule, because if you

read 562 -- or 56(c)(2)(a)(2), it states that only those facts

in a statement of facts that cannot be genuinely disputed should

be included so the other facts that are just peripheral and have

not of any consequence should not be in that material, which

would lessen the amount or volume that the court would be

looking at, and if we look at a reasonableness standard and the

court put some teeth into that standard as opposed to a bad
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faith standard, I believe that we can have a system where

summary judgment will work without all of the extra added work

that appears people are complaining of.

And with respect -- I just would like to applaud the

committee with respect to Rule 26. As a practicing attorney, I

think that the insight or having the foresight to develop the

changes to the rule is a welcome changed in the litigation

arena.

JUDGE KRAVITZ: We're always willing to take applause,

so thank you very much. We don't get it very often.

MS. HERRON: I appreciate the opportunity to speak to

the committee today. Thank you.

JUDGE KRAVITZ: Thank you very much.

Ms. Raghavan, welcome.

MS. RAGHAVAN: Thank you.

Good afternoon. This is a privilege for me, and my

first time doing this, so bear with me. On Rule 56, I am a

proponent of a rule that clearly states what the standard is.

There should not be any ambiguity when looking at the rule. It

is a "must" standard thou shalt not kill, not that thou shall

not kill. "Thou shall not" is the same as "thou must not."

It's going back to the basic history of grammar. I really think

to confuse the matter by saying that some courts have started a

discretionary line of thinking with regards to summary judgment,

it ignores the fact that Celotex and the line of cases that have
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established the standard and the rule as it existed required

mandatory findings, so "must" I think is the only way to make it

clear that cases that have come up since December 2007, there

haven't been many, but the mere fact that those that have come

up ignore the "must" standard, ignore the "should," "would," and

go with the "shalt would," should indicate to the committee that

it's been established that it is a mandatory standard. There's

a reason to make it mandatory and keep it mandatory. Summary

judgment has a purpose and this committee shouldn't in a

stylistic fashion remove that purpose from the bar.

I practice defense litigation in upstate New York

primarily and we rely on summary judgment not to get rid of

cases that are of value. This is a process that must be

protected to eliminate cases that really should not go to the

jury. I think the current supporting amendments in the current

rule allow you to go back to establishing a mandatory standard

and use the word "must" because with the point-counterpoint that

you have outlined, that eliminates some of the concerns that

have been raised with regards to boxes or volumes of material

that judges have to go through. That should be reduced by the

fact that the attorneys are forced to do the work for the judge

by citing to the record of any material fact that's not in

dispute. Then it's the opponent's problem to come forward and

put forth any material facts that are in dispute, again making

the work easier for the judge to either grant summary judgment
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or not.

And further, in your amended rule you also state that

the court can grant summary judgment based on what is raised in

the facts and counter-facts without searching the entire record.

That also eliminates the unnecessary extra work that the courts

may feel burdened with, so I think the other amendment that

you're suggesting support and allow you to state the word "must"

in the rule to protect the purpose of summary judgment.

If there is any remaining concern about the use, I've

heard some people say there is worry that people who make

statements of facts that have 200 paragraphs or such, we have a

local rule that has for a long time required point and counterpoint where I practice, and that has not been an issue of abuse

in practice because judges know how to control these matters and

they will not tolerate you coming forth with starting with the

day someone was born, where they went to kindergarten, if it's

totally immaterial to the case. The material facts are all that

count, and that is why if you really want to go further you may

want to look at your sanction section and make it applicable and

reword that in a way that would allow you to make sure that

attorneys understand that the only things that should be put in

the material statement of facts are things that will lead to the

ultimate result and nothing else, so I think you're almost

there.

JUDGE KRAVITZ: We just have to change one word?
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MS. RAGHAVAN: One word. You just have to change one

word and you support yourself with the rest of it.

With regards to Rule 26, it's been in my practice

there's been a lot of confusion with mainly with employee

witnesses for companies that don't get sued regularly, whether

once or twice a paralegal would be considered a regular person

who testifies regularly if that's all you're being sued.

Magistrates in our area generally tend to say, well, you know,

if you're going to produce him for etcetera, etcetera, you

better put out a report, and that's a huge burden on the

employee, and it's also, you know, it also causes all kinds of

issues with regards to attorney-client privilege, so if

recognition that you can put for those people that you don't

feel fall within the requirement of a mandatory report, you can

set forth their opinions, eliminates the chance of surprise and

things prejudice that the other side will raise, which I think

is a great idea for practical reasons, so 26, I strongly support

the amendment.

Thank you.

JUDGE KRAVITZ: Thank you very much.

I thought he was going to take Van Itallie's place.

MR. PERSHING: Steve Pershing for the Center For

Constitutional Litigation. We split the duties in which address

26 only. Mr. Cortese has graciously given me what may have been

his slot. If the committee would prefer, we can switch. It
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doesn't matter.

JUDGE KRAVITZ: No, no. We want to hear from both of

you. The question is who wants --

MR. PERSHING: Who wants to be the last person before

the committee's break for lunch? I think I'll sit here and I'll

let him --

We have submitted written comments. As you know, the

American Association of Justice is the oldest plaintiffs' bar

voluntary bar association, and I can tell you with some degree

of confidence that our members tell us that they are willing to

accept a tradeoff inherent in the proposed Rule 26 amendments

that would except protection for their own lawyer expert

communications in exchange for protection to those of the other

side. The squabbling that I think the committee has heard

plenty about that has attended the 1993 changes and experience

since that time has, it would appear, largely been done away

with in the notable jurisdiction to have changed their rule

along the lines now being proposed here, other than of course

New Jersey. Our sense from New Jersey practitioners are

reflected in the comments that we filed in writing, is that it's

time for relief, these extraneous matters being dispensed with.

Lawyers have, I think, have an insatiable appetite,

very understandable human appetite for lunch. No, I'm just

kidding. For the juicy facts about one another's strategies,

and I think the point has been excellently made over and over
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that we share the view that that's not the point. The question

is, can you examine an expert, and to the extent you learn, or I

should say reconcile the distinction between experts from whom

no expert-authored report is required with experts from whom a

report is required, you simply ease that process for all

experts.

I think one comment we received tells it all. The

lawyer who is in another time zone from his expert is at a

tremendous disadvantage when all of the tools of modern

communication are available and yet none of them can be used.

You all saw president-elect Obama's dilemma that he was going to

actually have to get over his use of his BlackBerry. If an

expert is in Singapore, as you heard earlier today, that expert

can be communicated with virtually only through methods of the

kind that place the relationship at its advantage that must

disclose all of those written communications.

PROFESSOR MARCUS: Just to follow up on one point, you

mentioned in a footnote in your submission the handling of

Daubert issues.

MR. PERSHING: Yes.

PROFESSOR MARCUS: Do you foresee any difficulty at

all from this change?

MR. PERSHING: No. The only Daubert comment that I

would make has a much narrower one to the subsidiary one to the

Daubert concern that occupied us a little bit earlier, and that
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is just simply that the closed communication and shared

responsibility between a lawyer and their expert, on the

question of meeting the Daubert standards is in and of itself a

burden that copious written disclosures and cross-examination at

deposition, so it would only intensify. There's no reason,

other than, as I say, the natural lawyerly appetite for

information about the opponent's strategy that would pose as a

need for that sort of information, and what you really want to

do is just look at the ways lawyers interact with their experts

and say this doesn't matter and this doesn't matter, and I think

the frequency of stipulations around the rule suggest that good

lawyers on both sides have come to that understanding.

Let me just say that there is a helpful harmonizing

going on here, I think, in these proposed changes between the

rule and Hickman, and that courts will now, I think, be able to

look to Hickman more freely than they could before in the

presence of this glaring exception to Hickman which is sort of

what we developed in post-1993 expert disclosure regime, but it

would do well for us to recognize, in other words, sort of

retire a concern perhaps about that, that there is no

presumption in the amended rule, the proposed rule, that a

particular lawyer expert contact his opinion, core opinion work

product. That determination and the level of work product

protection to be afforded to a particular communication will be

left to the judge in the individual case just as it is today.
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That might concern some people as some kind of a falling short

of complete protection, but it seems to me that the advantages

of the proposal greatly outweigh that vestigial concern, which,

after all, is the same one that you all have on the bench every

day. Not all of these decisions after all are clear-cut or

easy. That's why we don't have computers deciding our federal

litigation, thank goodness.

So we should also mention that, and as the committee

has acknowledged and had placed before it repeatedly, that a lot

remains open. If fact, some would argue that so much remains

open that this change we are making is really a very minor,

marginal one. I don't think that's right. I think that

squabbling needs to be gotten rid of, and that's all to the

good. If the court were present at these depositions, that

might have the same effect, but I take it you all are looking

for ways to create the impression that you are there in that

deposition room even when you cannot be.

The committee asked some questions in its invitation

for comment that I could just very briefly address, that

basically no, no, and no, but on page seven of the standing

committee report there are questions there. Given free

discovery of all facts or data considered by the expert, is it

important to note that the attorney was the source of those

considered but not relied upon? No. Again, it falls in the

category of the lawyer's natural appetite for the strategy of
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the opposing side, or is knowing the attorney was the source

only important as to -- only as to facts or data actually relied

upon? Again, in the one case more important perhaps than in the

other, but the squabbling is the issue. These are extraneous

facts. The lawyer's concern ultimately, if he or she would

admit it to him or herself, it to be able with full notice to

depose the expert properly as to the basis for that expert's

opinions. Where the source was for the opinion is entirely

secondary.

And let me say that I think it is helpful and I think

it's not universally agreed upon, but I think it is helpful that

we accept that in this day and age many of these complicated

cases, the preparation of them is fundamentally an interaction

between the lawyer and expert, that each is a help to the other,

that each is integrally involved with the preparation of the

case, devising of a proper approach to the case, and if we just

accept that, we're a lot farther along. There's, I think, a

small minority of folks who believe, and the principle on which

they believe is a very high principle indeed, that an expert

should be independent entirely, that the dependence should be

scrupulously guarded. I think we've heard testimony from both

sides, both plaintiffs and defendants, who say the jury will

draw their own conclusions in any event about the perception

they have of experts paid by this one or retained to support

that one. The real concern is whether the testimony holds
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together, and what happens in discovery of course is as

important to pretrial settlement, as to what happens at trial

perhaps more so, and this is really all about the containment of

litigation costs on both sides. So I think that's what grounds

my no, no, and no answers here.

There is marginal value to knowing that the attorney

identified the subjects the expert considered but didn't rely

upon. There may be marginal value. Perhaps the most of the

small values in each of those concerns raised by the committee,

but there again, I think the lawyer interest in finding out far

outweighs its value to that lawyer, for the natural reason I'm

supposing.

I don't think there's any serious doubt as to the last

question in the invitation: Does anything in the draft words

cast doubt on the outcomes about leaving the expert free to

answer because, "Well, my lawyer told me not to." I think the

comments as they stand are adequate. Of course there could be

further comment about that, and let me segue using that point to

a final observation, and that has to do with some comments we

made in writing about extending to trial and to subsequent

litigation the protections that we're trying to ensure here,

again, anti-squabbling protections, if you will. These are not

anti-disclosure protections. The three exceptions say that.

Most all that the lawyer ever really need I think is included in

the three exceptions. Little i, little i, ii, iii, but both an
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extension to a trial in the case at bar and to subsequent

litigation ought to be the rule. I think the committee would be

on safe ground to say more has been said in the comments now,

the draft now before us about that. Effectively casting into

the comment the committee's belief that to fail of those

extensions would in effect negate or substantially unmine the

anti-squabbling reason, rationale, for these, if you will,

change facts, you know, return to the pre-1993 understanding of

how this ought to work.

If there are any questions, I'd be happy to try to

tackle them, but I think the committee's work on this has been

quite admirable.

JUDGE KRAVITZ: Thank you.

MR. PERSHING: Thank you so much.

JUDGE KRAVITZ: I very much appreciate your comments.

MR. PERSHING: Thank you, Judge.

JUDGE KRAVITZ: Thank you.

Don't be daunted by the fact that you're holding us up

for lunch.

MR. CORTESE: Not in the least.

JUDGE KRAVITZ: You have one minute.

MR. CORTESE: Thank you, your Honor. It's a pleasure

to submit on the papers.

Judge Kravitz, members of the committee, thank you

very much for the opportunity to appear here. Al Cortese,
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counsel for the Lawyers For Civil Justice.

I would like to hit the highlights of the comment that

were submitted on behalf of the Lawyers For Civil Justice and

the Institute For Legal Reform. I appreciate the opportunity of

cleaning up after the parade, so to speak, and I would like to

take a few minutes to go through some of the comments that have

been made already and that we have made in our submission to

this committee.

We as a group, as the two groups, support the adoption

of both amendments, Rule 56 and 26, with some few comments. And

we've had the various discussion with respect to all aspects of

both rules within our group that has been looking at this. It's

interesting that the group, so far as I can tell, the groups are

unanimous in their view that you must use "must" in Rule 56.

However, the group's are on balance in favor of, for example, a

cost allocation addition, but there are some dissenting voices

from that which I will get to in a minute, and there also is

some dissent, but on balance we feel it's a benefit to the

system and the process to adopt the procedures of new Rule 26.

I do want to deal with briefly the first and most

important point, which is urging the committee to go back to

"must" or "shall" or mandatory prescription for Rule 56. The

point is, that it really needs to be said in a mandatory sense

in order to re-enforce the utility of summary judgment, and

we've heard a lot today about how plaintiffs' lawyers and
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liberal academics don't like slicing and dicing. I would assume

they would prefer shake and bake, that you just shake it all up

and throw it against the wall and hope that it hits. Well,

that's not the way the legal system ought to be conducted and

there need to be rules, there need to be clear entitlements to

judgment, as many of the witnesses have said today, and if the

committee were to go -- to were to maintain the "should," that

essentially is a change of the law, it is the change of the

standard as set out in Celotex, and there is no case, and we've

dealt with this in the comment, that has held that the standard

is that if the law and the facts entitle a defendant or a

plaintiff to summary judgment, then the judge has discretion to

not grant summary judgment or discretion to deny summary

judgment, the negative discretion, so I think if you maintain

the "should" you will be essentially changing the standard in

Celotex.

Another point on that is that "should" just does not

fit grammatically, syntactically, or whatever way you want to

look at it with "entitled." It just doesn't work. It doesn't

follow, and if the purpose was to truly emasculate the summary

judgment rule, what you would say would be that the judge should

grant summary judgment or that you should say that the judge

should grant and that therefore the defendant or the party may

be entitled to summary judgment, and that would be the

grammatical construct that would work, but obviously that would
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truly emasculate the summary judgment rule and it would take

away the very useful and important tool of the trial judge to

organize the case and to structure the case so that justice is

done. I think it's clear that the discretion or the judge's

responsibility is to determine if the facts and the law support

the grant, and as you've heard, that's essentially what the

cases find, that once the judge has exercised discretion and

exercised the judge's responsibility to find the facts and find

the law, then the grant of summary judgment is necessary, it's

mandatory, and that to take that away essentially, as you've

heard earlier, really would reduce the integrity of the system

and depart from that. What practitioners and judges need are

rules, not suggestions. "Should" is a suggestion. "Must" or

"shall" are rules, and these are rules, they're not suggestions.

I mean, we're not talking about the traffic laws in Rome, Italy,

where a red light may be just a suggestion that you stop. We're

talking about a construct where, if you have found the law and

you have found the facts, then judgment must follow. I think

that basically would really restore the intention of the

original rule as explained in Celotex, and I was a bit taken

aback at one of the comments earlier that this overwhelming tied

of summary judgment has only been created in the last 30 years

while the cases that they were talking about have only been

created in the last 20 years and the courts have had to deal

with those cases under fixed rules that were set before those
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cases came along, and therefore I can't see how you can argue

that there has been a tide of summary judgment in particular

cases that didn't exist before the rules existed, so I think

really that I would urge that this committee basically apply a

mandatory standard in that one instance of Rule 56 and not get

moved into this area of what I call legal relativity where, even

though the law and the facts and circumstances are clear, the

judge still has an opportunity to determine whether or not it's

fair or related to something or related to something else. You

should or should not grant the motion. If the law and the facts

and circumstances are clear, the "must be granted," and that

basically should stand as a very strong pillar of our legal

system, and it has for a number of years and it should continue.

I would like to say just a word about cost allocation.

As I mentioned before, there are some in our group --

FROM THE TABLE: May I interrupt you before you move

on?

MR. CORTESE: Please.

FROM THE TABLE: You're a long-time student of the

rules process and a very sophisticated one, and we appreciate

your constant attention of what we do, and I mean that

personally and for all of us, and I know how you feel about this

issue of "must." And we all know that in 1992 there was a

dedicated effort to modify the rule that failed. One of the

concerns that we've talked about, and I think you know this, we
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talked about this in all of our meetings, is that if we were to

use the word "must," although it has a -- there's some arguments

in favor of its logic, and as you -- it's more akin to "shall"

and "should." People have made that argument, that the tide of

opposition that we've heard today will be magnified many, many

times from both lawyers and also from many judges because a lot

of judges don't like being told they must do anything, and the

chances of passage are going to become much less, if not remote,

and if it gets through the standing committee, if we continue

with "should" and assume the standing committee approves and it

goes to the judicial conference and they prefer "must," they can

put it in, they can change that one word by a vote, or if it

goes to the Supreme Court and they would rather have "must" than

"should," they can change it too, and wouldn't it be better for

all the reasons we've discussed, to keep "should" here on the

low level, and if the Powers That Be want to make "should" into

"must," to be done, because as you recognized, Al, there's a lot

of other things in this rule that are very valuable that are not

controversial at all, and I would hate to see it submarine

because we've picked too strong a word.

MR. CORTESE: I would too, but I would urge you to do

the right thing, not necessarily the practical thing, and really

in my view the only right thing to do is to use the mandatory

construct, because if you don't, you're changing the standard

and we can worry about the next levels. Obviously there is
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going to be some opposition to the other parts of the rule and

that this may increase the burden slightly, but it's the right

thing to do.

Judge Walker?

JUDGE WALKER: Mr. Cortese, the present rule says the

judgment sought should be rendered if the pleadings, the

discovery, disclosure materials on files, so on and so forth,

indicate there's no material issue of fact and that the party

moving is entitled to judgment as a matter of law, so how does

"should" in proposed 56(a) change things?

MR. CORTESE: I'm speaking about the Celotex decision

and the original rule, 1938 rule, when it came in.

JUDGE KRAVITZ: Pre-style.

MR. CORTESE: Pre-stylization, and I'm confessing that

we probably should have made this argument at the time that the

style rules were being considered, but frankly we did not focus

on it because we were content with the committee's assertion

that they were not changing the substance of any of the rules.

We now think on reflection that this is a substantive change and

should not have been made in connection with the style program.

JUDGE WALKER: Well, the summary judgment locomotive

is still going down the tracks, as we heard from many lawyers,

and the style change does not appear to have changed the actual

application of the rule, notwithstanding the substitute of

"should" for "shall."
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MR. CORTESE: Well, we understand that, and I have not

read those cases, but I have been informed in a memorandum with

respect to them, and essentially what they do is they pick up

the same dicta. In many instances, they use the earlier

formulation of "shall be rendered" rather than "should be

rendered," and that is the -- that has been interpreted as the

mandatory formulation.

Now, the problem is that folks have not focused on

this, and someone cited the version of the manual, or of the

rule handbook, that indicate that now they have a whole section

on the new -- the new discretion of the court not to grant

motions even when you're entitled to it.

JUDGE WALKER: Well, what you --

MR. CORTESE: Your Honor, I submit that is just wrong.

JUDGE WALKER: Well, what you would be arguing is that

"should" in the current rule has acquired a gloss that would be

carried over to "should" in the new rule, and if there is that

gloss that is now attached to the current rule, why wouldn't it

carry over to the amended rule that's proposed?

MR. CORTESE: Because there is too much danger in the

use of the word "should." It's just too wishy-washy a word and

we need to re-enforce the mandatory nature of the summary

judgment procedure, because this has really wide implications.

You heard a lot today about how summary judgment is granted in

too many cases. I think that has -- that those comments have
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been limited only to employment discrimination cases. Maybe

that's because there are too many employment discrimination

cases rather than too many motions, and as Judge Kravitz had

pointed out, there are more employment discrimination cases that

lose at trial than in other areas and that are reversed on

appeal, that is, the plaintiffs are reversed on appeal, so that

the concern we have is that in many areas of the law where

summary judgment should be utilized as a tool by the judge to

focus on the facts and law in the cases and to give the

litigants a clear decision one way or another on those issues

only in the circumstance where the judge obviously has found and

has exercised his discretion to determine whether or not the

facts and the law favor the grant of summary judgment, that the

signal that the "should" sends is it gives the court yet another

opportunity basically not to enter -- not to enter an order that

should be required under the original rule and under the law as

set out in the Celotex trilogy.

JUDGE KRAVITZ: Thank you.

MR. CORTESE: Your Honor, may I take just a moment on

Rule 26?

I would like to mention that some of our members see

some risk, particularly to target defendants, in the cost

allocation before I get to 26 that we recommend, but on balance

we think the system would benefit by having a reasonable cost

allocation mechanism that would discipline adherence to these
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new rules and also to the filing of motions. Some of our

members feel that basically it's only target defendants that are

going to end up paying those cost allocations, but they think

that it's worth it because the system would benefit from having

a method to discipline adherence to the rules in those

instances, particularly when we see many instances in which

there are frivolous responses to motions, as well as in some

instances frivolous motions, but we're willing to take that risk

on balance in order to have this mechanism to discipline

adherence to the rules.

Now, on Rule 26 there are some that believe that there

ought to be open and free discovery of communications between

experts, but the large majority of our members and participants

in this process believe that it's most important to protect

communications, to protect the Work Product Doctrine, and that

this is probably the best way to do it, and that the exceptions

that you have carved out of the process are adequate to protect

the interest in getting to what the real facts are with respect

to the validity and reliability of the expert opinion. And as a

matter of protecting that, those interests, we therefore support

the rules as proposed.

There were a second set of questions with respect to

protecting communications only for retained experts and there

has been some discussion on that. We don't yet have a uniform

position on it but it is something that we would hopefully like
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to get back to you with respect to that. I think there's been

enough discussion of that today to perhaps leave it at that.

And then with respect to the protection of

communications with an expert's staff or assistants, I think

there is a tendency to believe that they probably ought to be

included in the protection, but that again is another area where

we may want to come back to you for further comment.

I thank you very much for your time, and I would leave

you with the thought that we do want commandments, not

suggestions.

JUDGE ROSENTHAL: Because they've been so effective?

MR. CORTESE: They haven't been effective enough. I

wouldn't dilute them.

JUDGE KRAVITZ: Thank you again.

And I want to thank everyone. These obviously are

very important proposals. They affect lawyers directly and

judges directly in the work that they do on a daily basis, and I

very much appreciate the time that everyone has spent speaking

with us, and we will conclude this hearing and pick up again in

San Antonio.

What we're going to do right now is take a

half-an-hour break. I really want to keep it to a half-an-hour,

and then I'm going to start weeding so we can press forward, and

we want to still get you all out of here, so that's open, and

thank you so much from all of us.
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Jacqueline M. Sullivan, RPR

Official Court Reporter

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(Proceedings concluded at about 1:13 p.m.)

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Jacqueline M. Sullivan, RPR

Official Court Reporter

165

I N D E X

WITNESSES: PAGE

CLAUDIA McCARRON 5

RICHARD SEYMOUR 15

LEIGH R. SCHACHTER 26

STEPHEN CHERTKOF 33

PROFESSOR EDWARD BRUNET 52

THEODORE VAN ITALLIE 105

MATTHEW CAIRNS 114

STEPHEN G. MORRISON 121

BRUCE R. PARKER 129

DEBRA HERRON 141

LATHA RAGHAVAN 143

STEPHEN B. PERSHING 146

ALFRED CORTESE 153
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Jacqueline M. Sullivan, RPR

Official Court Reporter

166

CERTIFICATE

I, JACQUELINE M. SULLIVAN, Official Court Reporter,

certify that the foregoing pages are a correct transcript from

the record of proceedings in the above-entitled matter.

__________________

JACQUELINE M. SULLIVAN