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 1 UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

 2 SAN ANTONIO DIVISION 

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 7 CIVIL RULES HEARING 

JANUARY 14, 2009 

 8 SAN ANTONIO, TEXAS 

8:30 A.M. TO 12:21 P.M. 

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13 TESTIMONY ON PROPOSED AMENDMENT 

TO CIVIL RULES 56 AND 26 

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FEDERAL COURT REPORTERS OF SAN ANTONIO (210)340-6464 

10100 REUNION PLACE, STE. 660, SAN ANTONIO, TEXAS 78216 
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 1 A P P E A R A N C E S

 2 COMMITTEE MEMBERS PRESENT: 

 3 HONORABLE MARK R. KRAVITZ, CHAIR 

PROFESSOR EDWARD H. COOPER - REPORTER 

 4 HONORABLE MICHAEL M. BAYLSON 

HONORABLE DAVID G. CAMPBELL 

 5 HONORABLE STEVEN M. COLLOTON 

PROFESSOR STEVEN S. GENSLER 

 6 DANIEL C. GIRARD, ESQUIRE 

HONORABLE C. CHRISTOPHER HAGY 

 7 MR. TED HIRT 

PETER D. KEISLER, ESQUIRE 

 8 HONORABLE JOHN G. KOELTL -- (PRESENT TELEPHONICALLY) 

HONORABLE RANDALL T. SHEPARD 

 9 ANTON R. VALUKAS, ESQUIRE 

CHILTON DAVID VARNER, ESQUIRE 

10 HONORABLE VAUGHN R. WALKER 

HONORABLE DIANE P. WOOD 

11 PROFESSOR RICHARD L. MARCUS 

MS. LAURA A. BRIGGS 

12 

13 STANDING COMMITTEE MEMBERS PRESENT: 

14 HONORABLE JAMES TEILBORG 

HONORABLE MARILYN HUFF 

15 HONORABLE REENA RAGGI 

HONORABLE LAURA TAYLOR SWAIN 

16 

17 COMMENTATORS: 

18 HONORABLE ROYAL FERGUSON 

 HONORABLE G. PATRICK MURPHY 

19 MALINDA A. GAUL, ESQUIRE 

MR. BRIAN SANFORD 

20 MICHELE Y. SMITH, ESQUIRE 

 MARGARET A. HARRIS, ESQUIRE 

21 MR. WAYNE B. MASON 

 JOHN H. MARTIN, ESQUIRE 

22 G. EDWARD PICKLE, ESQUIRE 

MR. CARY E. HILTGEN 

23 MR. KEITH B. O'CONNELL 

STEPHEN PATE, ESQUIRE 

24 CARLOS RINCON, ESQUIRE 

MR. TOM CRANE 

25 * * * * * * 

FEDERAL COURT REPORTERS OF SAN ANTONIO (210)340-6464 

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 1 (START TIME, 8:29 A.M.) 

 2 CHAIRMAN MARK R. KRAVITZ: Okay. I think we 

 3 should get started. 

 4 On behalf of the Civil Rules Advisory Committee, 

 5 I want to thank the staff and the judges of the Western 

 6 District of Texas for their hospitality. I -- this is, as I 

 7 was telling people, may be the height of my judicial career 

 8 here, sitting in such august circumstances, and with one of 

 9 the most talented juries I've ever had. 

10 I want to thank all of the members of the 

11 Standing Committee who have been able to set aside time to 

12 be here today to -- to listen to the comments and also, I 

13 hope, participate and -- and ask questions. 

14 I know that some have planes to catch later on. 

15 And I hope none of you will feel disserved if people run out 

16 several hours from now to catch a plane. 

17 Judge Koeltl has as a must-teach at Colombia 

18 today or tomorrow, so he is participating by telephone. We 

19 welcome, Judge Koeltl as -- as well. 

20 I think we should probably get started. 

21 Although it may be sensible for us to just take a moment for 

22 the audience and just sort of introduce ourselves to you. 

23 We obviously have name tags here, but to tell you who we 

24 are. 

25 I'm Mark Kravitz and I have the great privilege 

FEDERAL COURT REPORTERS OF SAN ANTONIO (210)340-6464 

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 1 to Chair the Civil Rules Advisory Committee. 

 2 PROF. EDWARD H. COOPER: I'm Ed Cooper. I'm 

 3 the -- a Professor at the University of Michigan Law School, 

 4 and have the even greater pleasure of being the Recorder for 

 5 the Civil Rules Advisory Committee. 

 6 Chilton Varner, I'm a practitioner from Atlanta, 

 7 Georgia with the firm King and Spalding. 

 8 HON. VAUGHN R. WALKER: Good morning. I'm Vaughn

 9 Walker, District Judge, the Northern District of California 

10 in San Francisco. 

11 CHAIRMAN MARK R. KRAVITZ: So to Steve on the -- 

12 HON. STEVEN M. COLLOTON: Steve Colloton, United 

13 States Circuit Judge for the Eighth Circuit from Des Moines, 

14 Iowa. 

15 PETER D. KEISLER, ESQ.: Peter Keisler. I 

16 practice in the Washington D.C. office of Sidley & Austin. 

17 PROF. RICHARD L. MARCUS: I'm Rick Marcus. I'm a

18 Professor at Hastings in San Francisco, and I'm Associate 

19 Reporter of the Committee, specializing on discovery 

20 matters. 

21 HON. DAVID G. CAMPBELL: I'm Dave Campbell, 

22 District Judge from Arizona. 

23 HON. C. CHRISTOPHER HAGY: I'm Chris Hagy. I'm a

24 Magistrate Judge from Atlanta, Georgia. 

25 CHAIRMAN MARK R. KRAVITZ: Steve. 

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 1 PROF. STEVEN S. GENSLER: Steve Gensler, Professor 

 2 at the University of Oklahoma. 

 3 DANIEL C. GIRARD, ESQ.: I'm Dan Girard. I 

 4 practice on the plaintiff's side, specialize in class 

 5 actions. I'm from San Francisco. 

 6 HON. LEE H. ROSENTHAL: I'm Lee Rosenthal. I'm a

 7 District Judge in Houston, Texas. 

 8 MS. LAURA A. BRIGGS: I'm Laura Briggs. I'm the 

 9 District Clerk in the Southern District of Louisiana. I'm 

10 the Clerk Representative on the Committee. 

11 CHAIRMAN MARK R. KRAVITZ: Ted, why don't you go 

12 next. 

13 MR. TED HIRT: I'm Ted Hirt from the Civil 

14 Division of the Department of Justice in Washington. 

15 ANTON R. VALUKAS: I'm Tony Valukas. I'm a 

16 partner in the law firm of Jenner & Block in Chicago. 

17 HON. MICHAEL M. BAYLSON: I'm Michael Baylson. 

18 I'm a District Judge in Philadelphia. 

19 HON. JAMES TEILBORG: I'm Jim Teilborg, District 

20 Judge, Member of the Standing Committee, Arizona. 

21 HON. MARILYN HUFF: Good morning. My name is 

22 Marilyn Huff. I'm a District Judge in the Southern District 

23 of California, and I'm on the Standing Committee.

24 HON. DIANE WOOD: I am Diane Wood. I'm on the 

25 Standing Committee. I'm on the Court of Appeals for the 

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 1 Seventh Circuit. 

 2 HON. REENA RAGGI: I'm Reena Raggi, I'm also on 

 3 the Standing Committee. I'm on the Second Circuit Court of 

 4 Appeals in New York. 

 5 HON. LAURA TAYLOR SWAIN: I'm Laura Taylor Swain. 

 6 I'm a District Judge in the Southern District of New York, 

 7 and I Chair the Bankruptcy Rules Advisory Committee. 

 8 David Beck, practitioner, Houston, Texas. 

 9 Member of the Standing Committee. 

10 CHAIRMAN MARK R. KRAVITZ: Great. We're going to

11 start with someone whom I've always been told is a great 

12 American ever since I got this position. 

13 So Judge Royal Ferguson, welcome. 

14 HON. ROYAL FERGUSON: Thank you, Your Honor. And

15 may it please the Court, on behalf of the Western District 

16 of Texas, may I welcome the Rules Committee to our wonderful 

17 city and to our wonderful District. We're pleased that 

18 you're here and pleased that you would come. 

19 I am here, by the way, first, to offer my 

20 condolences to Professor Gensler. What is it with the 

21 Sooners? You know, we -- we get you to the BSC -- BCS every 

22 year and you blow it. 

23 PROF. STEVEN S. GENSLER: Do I have to take this?

24 CHAIRMAN MARK R. KRAVITZ: Yes, you have to take 

25 it. 

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 1 HON. ROYAL FERGUSON: Anyway, I was with you all 

 2 the way. I just don't know what happened. But maybe next 

 3 year, right? 

 4 PROF. STEVEN S. GENSLER: Thank you. 

 5 HON. ROYAL FERGUSON: Okay. I am here to -- to 

 6 first thank the Rules Committee for all the wonderful work 

 7 you do. It's a -- it's probably a -- the stellar Committee. 

 8 These are the stellar Committees of the whole federal court 

 9 system and we appreciate your hard work and your 

10 scholarship. 

11 We appreciate your work on Rule 56. I am here 

12 on speak about the count -- the point/counter point 

13 proposals in Rule 56. I have never been privileged to have 

14 that kind of a summary judgment motion presented to me. We 

15 don't have that rule in the Western District of Texas, but 

16 it seems to me that that rule will continue to complicate 

17 summary judgment procedure. And because of that, I would 

18 urge the Committee to -- to not put that into the rule. 

19 I want to share with you something that 

20 Professor Sam Issacharoff wrote. I -- he was at the 

21 University of the Texas, my law school, and at Columbia. He 

22 may be at NYU now. But he wrote that, Summary judgment 

23 fundamentally alters the balance of power between plaintiffs 

24 and defendants by raising both the cost and risk to 

25 plaintiffs in the pretrial phrases of litigation, while 

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 1 diminishing both for defendants. 

 2 And I believe that's correct. And I believe 

 3 that summary judgment, as we have it today, has created an 

 4 unlevel playing field. That's just my belief. I agree with 

 5 Professor Issacharoff. And so I think if we were to do 

 6 something that would continue to, in my view, complicate 

 7 summary judgment -- because anytime lawyers are talking 

 8 about undisputed facts, they're going to get into a 

 9 disagreement about it, and the disagreement could go on and 

10 on. I think it will just add cost to our proceedings and I 

11 think it will -- it will further complicate summary 

12 judgment. 

13 Now, I speak as one who has never been a part of 

14 a system with point/counter point. But I feel like it would 

15 be unwise for us to go in that direction. 

16 Those are my comments. I told you I would take 

17 only a few minutes, Your Honor. 

18 CHAIRMAN MARK R. KRAVITZ: Right. And Judge 

19 Ferguson is presiding over a jury trial soon, but if anyone 

20 has any question for Judge Ferguson... 

21 We appreciate your comments. We have received 

22 quite a number of comments on Rule 56, some very much along 

23 the lines that you say. And we're going to continue to take 

24 all these comments seriously and ponder them as we move 

25 forward and -- and decide what to do on both Rule 56 and 

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 1 Rule 26. So thank you so much. 

 2 HON. ROYAL FERGUSON: Thank you very much. And 

 3 again, welcome to San Antonio. We hope you have a very 

 4 pleasant stay here. 

 5 HON. MICHAEL M. BAYLSON: Judge, the only thing I

 6 want to say has nothing to do with Rule 56, although I'm 

 7 interested in it. But I want to say on behalf of Judge 

 8 Campbell, who's from Phoenix, and I'm from Philadelphia, 

 9 that we hope you're going to root for the Eagles.

10 HON. ROYAL FERGUSON: You know, I like -- I 

11 like -- 

12 HON. MICHAEL M. BAYLSON: He gets equal time. 

13 HON. ROYAL FERGUSON: I like both those 

14 quarterbacks. So I am neutral, just to let you know. I 

15 hope it's just a great game. I hope it's just a great game. 

16 And Professor, my undergrad is Texas Tech, and 

17 you guys were so mean to us. I just had to say something 

18 about it. 

19 Thank you, Your Honor. 

20 CHAIRMAN MARK R. KRAVITZ: Thank you, Judge 

21 Ferguson. Thank you very much. 

22 We've had a couple people who could not make it. 

23 I'm not sure whether it's the weather or not. For those of 

24 you who have a witness list, I've been told that Mr. Nelson 

25 and Ms. Kuchler -- and I apologize if I've mispronounced the 

FEDERAL COURT REPORTERS OF SAN ANTONIO (210)340-6464 

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 1 name -- will not be here. 

 2 We do have -- I'd like to take a personal point 

 3 of privilege, if I could, and offer at least Judge Murphy 

 4 the chance to speak. Welcome. 

 5 HON. G. PATRICK MURPHY: Thank you. 

 6 CHAIRMAN MARK R. KRAVITZ: I had a chance to meet

 7 you beforehand, but I wanted to give you an opportunity to 

 8 speak now because I know you have a plane to catch, and we 

 9 are very much appreciative of your willingness to come here 

10 and speak with us. 

11 HON. G. PATRICK MURPHY: I appreciate the 

12 opportunity to be here. It's unusual that I would take the 

13 time to pull away from the court to participate in committee 

14 work, but I do think this is important. And all that I can 

15 add to what Judge Ferguson said is that I have tried that. 

16 I'm the immediate past Chief Judge of our 

17 District, the Southern District of Illinois. And when I 

18 came on board as Chief Judge, we had the point/counter point 

19 system in effect by local ruling. And when it came time to 

20 revise our local rules, as we do periodically, we canvased 

21 the bar. And it came back something like 357 to three to 

22 doing the rule. 

23 Now, we're a busy trial court. We get a lot of 

24 cases removed from Madison and Sinclair County, and that is 

25 what the Chamber of Commerce calls the judicial hell hole, 

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 1 and that is what the plaintiffs lawyers call the last fair 

 2 courts in the United States. That do not get along, as you 

 3 might expect. 

 4 But what happened was, with this point/counter 

 5 point system, is that an entire what's sometimes is called 

 6 "cottage industry" developed around, well, what is disputed 

 7 and what isn't disputed. Now, you would think it would be 

 8 sufficient to just say, I dispute that; I don't agree with 

 9 it. But that's not so at all because someone would motion 

10 us for a hearing. Judge, this really isn't disputed, but 

11 they say it is. That should be the end of the argument, but 

12 the argument then would be, Well, they can't dispute that. 

13 And this would go on and on and on. And the super structure 

14 of Rule 56 almost sunk the ship. 

15 Now, we did the rule. We still grant summary 

16 judgments at the same rate. There's been no significant 

17 change in summary judgment practice or the use of it. It 

18 just takes less time and less money. 

19 CHAIRMAN MARK R. KRAVITZ: I think for the 

20 members, it would be -- it would help us to understand that, 

21 because I would have thought that in any case on summary 

22 judgment, the question is: Are there genuine issues of 

23 disputed fact? And so whether that occurs in a brief, 

24 whether that occurs in a brief in a point/counter point 

25 statement, that's the -- what drives this. 

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 1 So why do you think it is easier? Is it because 

 2 you don't -- you were having motions to strike and 

 3 procedural problems just about the dispute of this little 

 4 counter point -- 

 5 HON. G. PATRICK MURPHY: Absolutely. 

 6 CHAIRMAN MARK R. KRAVITZ: -- that kept you from 

 7 focusing on -- 

 8 HON. G. PATRICK MURPHY: Absolutely. Absolutely. 

 9 Now, looking through the materials, I smiled because someone 

10 was concerned that Rule 56 was an underutilized tool. I 

11 have never had a civil case where I didn't get a Rule 56 

12 motion. Not one. I mean, prisoner litigation, for 

13 instance, I set those and hear those. Even in prisoner 

14 litigation I touch Rule 56. Every class action that I have, 

15 and I have plenty, I have Rule 56. There is no case in my 

16 court where I do not get a Rule 56 motion. 

17 Now, really you look at these motions, is there 

18 a disputed issue of fact or not? Is there something to have 

19 a trial about? And if you're not a good enough judge to 

20 figure that out, you're going to sink in this business. I 

21 probably shouldn't say that. I've been adverse a few times 

22 with the court. Judge Wood is here. 

23 But look, that's the -- that -- that is -- that 

24 is the bottom line with me. I think my Chief Judge has 

25 talked about the language. I agree with that "must." If 

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 1 there's no disputed issue of fact, surely you must grant the 

 2 motion. But if someone wants to try this procedure, they're 

 3 at liberty to do so, just like we did. But be careful 

 4 because you're going to see that you're going to spend an 

 5 inordinate amount of time on this very thing. And as Judge 

 6 Ferguson said, Look, it's -- it's who can show up with the 

 7 most troops and the most money and the most artillery that 

 8 this is going to get advantaged. The small -- the small -- 

 9 the small players are going to be disadvantaged. 

10 Those are my comments. 

11 CHAIRMAN MARK R. KRAVITZ: Well, thank you. But 

12 while you're here, I think it would be useful for, I 

13 think -- if you're willing to take some questions. 

14 HON. PATRICK MURPHY: Well, I'll take all the time 

15 and questions that you need. 

16 CHAIRMAN MARK R. KRAVITZ: That'd be great. 

17 Judge Teilborg. 

18 HON. JAMES TEILBORG: Thank you, Mr. Chairman. 

19 Judge, as one who's presided in a district that 

20 has only the point/counter point, tell me mechanically what 

21 else is filed in addition, if anything, to the briefs 

22 themselves? In other words, is there some type of statement 

23 of facts that is filed separately or excerpts from 

24 deposition, that type of thing? 

25 HON. G. PATRICK MURPHY: Well, what we -- the 

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 1 rule, as it exists, would require the parties to confer, 

 2 which is already mandated by the -- by the federal rules. 

 3 And say, This is what we agree on and this is what we don't 

 4 agree on. Well, the first thing that would happen is one 

 5 side or the other would say, Judge, they won't meet with me. 

 6 Then that person would say, Well, I told them that I was 

 7 taking depositions in New York on that day. Then the other 

 8 side would say, Well, you know, we have to get this done. 

 9 The judge is -- the judge would be -- he wants 

10 to take a look at this. And then it would -- it would just 

11 go on and on. So the first motion would be, They will not 

12 meet and sit down and go over it with me what is really 

13 disputed and what isn't. 

14 And then someone would file their list of 

15 undisputed facts. These things are undisputed. And the 

16 other person then would say, Oh, no they're not. We dispute 

17 2, 7, 9 and 11. Then it would be, They can't do that. But 

18 they did. 

19 HON. JAMES TEILBORG: That was the old system, 

20 right? 

21 HON. G. PATRICK MURPHY: No, this is -- this is 

22 under the point/counter point system that's proposed. 

23 HON. JAMES TEILBORG: No, I'm asking what your --

24 what your system is now. 

25 HON. G. PATRICK MURPHY: We just -- look, we -- we 

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 1 assiduously followed the Federal Rules of Civil Procedure 

 2 and applied them ruthlessly, but no more. No more than 

 3 what's in there. We have tried to skinny up our local 

 4 rules, make them simple, to learn them. And as it is now, 

 5 if someone can come in and show us, Judge, there's just 

 6 nothing here to have a trial about. Granted. Go on about 

 7 your business. 

 8 CHAIRMAN MARK R. KRAVITZ: But I think what Judge

 9 Teilborg was asking, when -- when the movant files their 

10 brief and says, These are the facts and they're all 

11 undisputed and this is why I should get judgment. A, are 

12 there citations to the record in that brief? 

13 HON. G. PATRICK MURPHY: I'm sorry, Judge, I 

14 didn't understand it that way. 

15 CHAIRMAN MARK R. KRAVITZ: And B, did they -- did

16 they submit an appendix or something with the excerpts from 

17 the depositions or the interrogatories? 

18 HON. G. PATRICK MURPHY: Oh. 

19 CHAIRMAN MARK R. KRAVITZ: I think that's what he

20 meant. 

21 HON. G. PATRICK MURPHY: Yes. I'm sorry. Yes. 

22 HON. JAMES TEILBORG: I didn't make it very clear. 

23 HON. G. PATRICK MURPHY: Well, I probably wasn't 

24 processing as well as you were -- you were talking. Yes, 

25 that is exactly what happens. And it's usually a pretty big 

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 1 job. I'm sure the judges on the Court of Appeals, when they 

 2 get the transcripts, they'll see that. A summary judgment 

 3 motion, it's not unusual for it to be, you know, 9 inches to 

 4 a foot thick. I don't know how you a void that. 

 5 CHAIRMAN MARK R. KRAVITZ: Dan Girard and then 

 6 Mike. 

 7 DANIEL C. GIRARD, ESQ.: The question I had was 

 8 asked. 

 9 CHAIRMAN MARK R. KRAVITZ: Okay. 

10 HON. MICHAEL M. BAYLSON: Okay, the question I 

11 have, Judge Murphy, is, I think everyone would agree that 

12 point/counter point doesn't necessarily work in every case. 

13 There are surely some cases which are unique or they're so 

14 complex that going through this point/counter point system 

15 would not be efficient. And in the proposed rule, as I'm 

16 sure you saw, a judge can simply say, In this case we're not 

17 going to follow that procedure. 

18 Given the fact that there are many District 

19 Courts, not withstanding your District, but there are many 

20 District Courts that still have point/counter point and like 

21 it and use it, and we've gotten letters from some judges in 

22 those Districts. 

23 What's wrong with keeping the proposed rule as 

24 is, with the escape clause, as I call it? So if the judge 

25 doesn't want to do it in a particular case or -- you know, 

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 1 in a number of cases where the judge thinks it's not right, 

 2 the judge just issues an order to that effect. 

 3 HON. G. PATRICK MURPHY: Well, I just think there

 4 should be a presumption against rules where the exception 

 5 eats the rule. And if you get, for instance, someone like 

 6 me that has actually spent five or six years wrestling with 

 7 that rule, I'm going to say, By administrative order, or 

 8 with an order in each case, I'm not doing it. And I think 

 9 all of my colleagues in the Southern District would do 

10 something like that. 

11 Let's not forget, we have Rule 36. 

12 HON. MICHAEL M. BAYLSON: But on admission. 

13 HON. G. PATRICK MURPHY: Yes. I mean, it's right

14 there. The -- the -- 

15 HON. MICHAEL M. BAYLSON: Now that may be an 

16 underutilized rule. 

17 HON. G. PATRICK MURPHY: Well, there's no question 

18 about it that -- that it is. But if Rule 36 has proved 

19 unsuccessful, whether it be because of lassitude on the part 

20 of the lawyers or ignorance or whatever the case might be or 

21 the judge's unwillingness to do it, what would make you 

22 think that this new proposal would work? 

23 And let me give you one other example that I 

24 think is related to this question -- that is related to this 

25 question. And that is -- by the way, looking at the 

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 1 proposed limits of Rule 26 that were sensible to me and 

 2 looks like they were nearly helpful. But Rule 26, for 

 3 instance, laid out a very detailed way to prepare for trial. 

 4 By local rules you will see a requirement for these detailed 

 5 pretrial orders. Guess what, they're always inconsistent. 

 6 I can't understand, in light of Rule 26 with your witness 

 7 list, your exhibit list and the rest, what office these 

 8 detailed, pretrial orders often serve when they're in 

 9 conflict with the rule itself. 

10 So I'm a minimus. I'm a minimus. I started my 

11 life as a grunt in the United States Marine Corps. You 

12 learn to do a few things very well; keep your weapon clean, 

13 make sure it's loaded, stay awake at night, as one Colonel 

14 said, Have a plan to kill everybody. 

15 HON. LEE H. ROSENTHAL: Is that how you approach 

16 summary judgment? 

17 HON. G. PATRICK MURPHY: You know what -- 

18 HON. LEE H. ROSENTHAL: Never mind. 

19 HON. G. PATRICK MURPHY: I might add that my 

20 Marine Corps has worked very well. I have found that 

21 simplicity, simplicity works. Keep is simple. Have a few 

22 rules. Apply them just ruthlessly and it will work. 

23 But what we're getting to, and I think this is 

24 what Judge Ferguson was hinting at in a manner that I 

25 couldn't quite reach, the super structure is about to sink 

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 1 the ship. It just shouldn't be that expensive and difficult 

 2 to get these cases worked up for trial. And I can just tell 

 3 you our experience has been, we drank just as many summary 

 4 judgments. Summary judgments come in every case. We just 

 5 do it, we just do it quicker, and we do it cheaper. And 

 6 that was the consensus of the Trial Bar. 

 7 Now, it is very hard in the Southern District of 

 8 Illinois to get the Trial Bar to agree on anything. They 

 9 even object to the idea that they have to meet and confer. 

10 As one lawyer said, Judge, I'll do anything that you say I 

11 have to do, but why do I have to go sit down with those 

12 people and talk to them? 

13 CHAIRMAN MARK R. KRAVITZ: Oh, I'm sorry. 

14 Judge Walker. 

15 HON. VAUGHN R. WALKER: Yes. Judge Murphy, thank

16 you very much for your testimony and the experience that you 

17 related in the Southern District of Illinois. I will tell 

18 you my experience in the Northern District of California is 

19 very similar to yours. 

20 But let me ask you about the other provisions of 

21 the proposed rule, other than Subsection C. Do you have any 

22 objection to the other provisions, the non-counter point/ 

23 counter point provisions? 

24 HON. G. PATRICK MURPHY: Well, not really. But I

25 wonder -- Judge Easterbrook, for instance, supports the idea 

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 1 it should say "must." 

 2 HON. VAUGHN R. WALKER: Right. 

 3 HON. G. PATRICK MURPHY: And that -- that seems 

 4 sensible to me because if there isn't a trailable issue of 

 5 fact, well, yes, the judge must do that. We're not at 

 6 liberty to -- to have juries to decide cases where there's 

 7 no issue in dispute. But does that mean then that my court 

 8 of appeals gets a mandamus on every case where the judge 

 9 doesn't see it the way one of the parties does? I don't -- 

10 I'm not sure what that -- I'm not sure what that -- what 

11 that means -- 

12 CHAIRMAN MARK R. KRAVITZ: Okay. 

13 HON. G. PATRICK MURPHY: -- in that respect. 

14 HON. VAUGHN R. WALKER: The present proposal does

15 not use the word "must," which presumably would head off the 

16 petition -- 

17 HON. G. PATRICK MURPHY: For -- for mandamus. 

18 HON. VAUGHN R. WALKER: Right. So -- 

19 HON. G. PATRICK MURPHY: But, I mean, it does seem 

20 sensible, wouldn't it? If there's -- if there's nothing to 

21 try, why would you -- why would you have the trial? There's 

22 always another one cued up, ready to go. 

23 HON. VAUGHN R. WALKER: The other provisions of 

24 the proposal talk about the time for filing the response, 

25 and so forth. I gather that you have no objection to those 

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 1 provisions of the proposals? 

 2 HON. G. PATRICK MURPHY: I don't. I mean, it's 

 3 uniform. Everyone knows what the rule is. That -- 

 4 that's -- that's fine. 

 5 CHAIRMAN MARK R. KRAVITZ: Chris? 

 6 HON. C. CHRISTOPHER HAGY: Judge, there's a lot of 

 7 rules that could be broadly categorized as point/counter 

 8 point and the details are different in each district. Some 

 9 don't work, some do work. From what you've said, you have a 

10 problem with people arguing, Well, that rule is -- this fact 

11 is in dispute, this fact isn't in dispute. 

12 Our rule and the rules I know -- our proposal, 

13 the rules that -- where it seems to work, require a party 

14 who says it is in dispute to cite to something in the record 

15 to prove it, and then it's up to us. There's no back and 

16 forth. Did your rule back -- when you didn't like it, 

17 require a party to -- to point to a spot in a record that -- 

18 HON. G. PATRICK MURPHY: It did. It did and we -- 

19 we just found that as we went back through it and we would 

20 look at the record and say, Well, you know, arguably it says 

21 that. Maybe it doesn't. 

22 Judge, it just -- it just didn't work the way 

23 that it looked like it would work. The -- our rule -- the 

24 rule that we abandoned was put into effect with the best of 

25 intention. Because we spend an extraordinary amount of time 

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 1 dealing with Rule 56 motions. As I say, they come up in 

 2 every case. And -- and we were trying to find a way to 

 3 speed it up. And it just didn't -- it just didn't work for 

 4 us. And if -- if you think about it, anyone by local rule 

 5 can have such a system, and if someone wants to try it, so 

 6 be it. But I really wouldn't -- I really wouldn't want to 

 7 do that again. 

 8 CHAIRMAN MARK R. KRAVITZ: And -- and in so far as 

 9 Rule 26 is concerned, you're -- you're supportive? 

10 HON. G. PATRICK MURPHY: That seems like -- that 

11 seems sensible to me. 

12 CHAIRMAN MARK R. KRAVITZ: Okay. 

13 HON. G. PATRICK MURPHY: So people aren't ambushed 

14 by the non-retained expert. That's always -- that's always 

15 a problem. As I understand it, the non-retained expert 

16 doesn't have to sign off -- 

17 CHAIRMAN MARK R. KRAVITZ: Right. 

18 HON. G. PATRICK MURPHY: -- on the report as it 

19 now -- as it now -- as it now -- and you can get the 

20 information now by interrogatory -- 

21 CHAIRMAN MARK R. KRAVITZ: Right. 

22 HON. G. PATRICK MURPHY: -- anyway. So I -- that

23 seems like a very sensible proposal to me. 

24 CHAIRMAN MARK R. KRAVITZ: All right. Well, I 

25 want to thank -- we've got a number of witnesses. Unless 

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 1 there's any other questions, I want to thank you so much, 

 2 Judge Murphy, for traveling here to this lovely spot, of 

 3 course, but for taking the time out of your busy schedule to 

 4 share your views with us. We really appreciate it. 

 5 HON. G. PATRICK MURPHY: Judges, thank you for 

 6 having me. If you don't mind, I'm going to sit here and 

 7 listen and I'm sure I'll learn something. 

 8 CHAIRMAN MARK R. KRAVITZ: You are welcome. 

 9 All right. I think the next person up is 

10 Malinda Gaul. 

11 MS. MALINDA GAUL, ESQ.: Good morning. 

12 CHAIRMAN MARK R. KRAVITZ: Welcome, Ms. Gaul. 

13 MS. MALINDA GAUL, ESQ.: I like it when the first

14 two people don't show up and so I get to be first. Thank 

15 you. 

16 CHAIRMAN MARK R. KRAVITZ: May I could ask 

17 everyone to just say a little bit about the nature of their 

18 practice before they make their comments. 

19 MS. MALINDA GAUL, ESQ.: Thank you very much. 

20 My name is Malinda Gaul and I practice here in 

21 San Antonio. For about 25 years I have practiced doing 

22 employment law, representing employees. 

23 As Judge Ferguson told you a few minutes ago, we 

24 don't do counter point here in the Western District of 

25 Texas. So I think it's sounds good because what we practice 

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 1 is the shotgun method. Basically you get big summary 

 2 judgment motions, everything's thrown at the wall and the 

 3 defense hopes that something sticks so that they can get 

 4 summary judgment granted. We get them in every single case. 

 5 I haven't seen a case in the last couple of decades where I 

 6 haven't had to answer summary judgment. 

 7 So I'm really interested in the point/counter 

 8 point. But my concern in reading what the Committee has 

 9 proposed is that if we're truly going to do a point/counter 

10 point, then I hope -- as the Committee has said; that 

11 they're not going to change the standard, they're going to 

12 change the burden -- but I'd like to see the standard and 

13 the burden applied to this point/counter point. 

14 In other words, there should be material facts 

15 that affect the decision in the case. Not every single fact 

16 should be lined up. It shouldn't be 200 point/counter 

17 points. It should be the ones that are really going to be 

18 determinative of the motion. 

19 So what I'm hoping is that if we do this system, 

20 that what the Committee will recommend, in addition to maybe 

21 just saying the point/counter point, is that, Movant, you're 

22 coming forward, you say that these are the material issues, 

23 they're undisputed, so that if we present on the other side 

24 a dispute, it's over. Summary judgment denied. 

25 And then also I'd like to see us have a little 

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 1 bit in the rules about the burden. Because I think the 

 2 way -- when I was even listening to the two judges -- a 

 3 fact, once you raise something to dispute it, that's it. On 

 4 the defense side or the movant side -- I'm sorry, I'm always 

 5 thinking of the defense side as the movant. But the movant 

 6 is saying, Undisputed. They're supposed to present facts. 

 7 On our side, the nonmovant, undisputed/disputed fact 

 8 inferences. 

 9 It seems to me that the way summary judgments 

10 are looked at is we're trying the case on the paper, and 

11 that's not my understanding of what summary judgment is 

12 about. If there is a fact issue raised, motion should be 

13 denied. 

14 CHAIRMAN MARK R. KRAVITZ: Including inferences? 

15 MS. MALINDA GAUL, ESQ.: Yes. Yes. Yes. So, 

16 again, I would like to see something in the rules that talks 

17 about, you know, Movant, you say these are material issues 

18 and that if they're disputed, then case over, no summary 

19 judgment. If they're not disputed, you win summary 

20 judgment. And then also assigning the burden. 

21 And finally, I'd like to say, just because we do 

22 get these cases -- summary judgments in every case, and 

23 because they are granted far more than they are denied, I'd 

24 like see oral arguments added. Because the -- in fact, the 

25 way we do it in the Western District, I -- one of the 

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 1 Committee Members talked about timing. We have 11 days to 

 2 respond and -- I hear -- and once we respond, that's it, we 

 3 just wait. And I think we really need an opportunity to 

 4 have an oral argument to make sure that before the judge 

 5 decide something that's going to end everything, that we 

 6 have an opportunity to address the facts. 

 7 CHAIRMAN MARK R. KRAVITZ: Okay. Thank you so 

 8 much, Ms. Gaul. 

 9 We'll just see if there are any questions. 

10 Judge Campbell. 

11 HON. DAVID G. CAMPBELL: Yeah, if I could just ask 

12 a question. In the -- in the proposal in Rule 

13 56(c)(2)(A)(ii), it says that the moving party is to 

14 provide, "A separate statement that concisely identifies in 

15 separately numbered paragraphs only those material facts..." 

16 So it has that word in it. I'm understanding 

17 you want something more than that. 

18 MS. MALINDA GAUL, ESQ.: I would just like to make 

19 sure that that term is defined. Because the way we're 

20 seeing it now in summary judgments, that's what you're 

21 supposed to be doing, but what we're seeing is statements of 

22 facts that go on for pages and pages and pages. And so I 

23 think as long as the definition of "material" is made very 

24 clear -- but that's my concern, is that we read that word, 

25 but we're not understanding what "material" means. 

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 1 "Material" meaning that this is something that will decide 

 2 the case. 

 3 HON. DAVID G. CAMPBELL: And -- but of course that 

 4 will change, depending on the substantive law and -- 

 5 MS. MALINDA GAUL, ESQ.: Yes, sir. Yes, sir, I 

 6 understand that. 

 7 CHAIRMAN MARK R. KRAVITZ: Okay. Anybody else? 

 8 Thank you, Ms. Gaul. 

 9 MS. MALINDA GAUL, ESQ.: Thank you for the 

10 opportunity. 

11 CHAIRMAN MARK R. KRAVITZ: Thank you very much for 

12 sharing your observations. 

13 MS. MALINDA GAUL, ESQ.: Thank you. 

14 CHAIRMAN MARK R. KRAVITZ: Mr. Sanford. 

15 Welcome, sir. 

16 MR. BRIAN SANFORD: Thank you. My name is Brian 

17 Sanford. I am an attorney from Dallas, and I also practice 

18 primarily employment law on behalf of the employee, like 

19 Ms. Gaul. 

20 I've got three points that -- what I have strong 

21 feeling about. And I'll just -- before I get to those, I'm 

22 not sure where I stand on the point/counter point. From the 

23 plaintiff's perspective, we do get a motion for summary 

24 judgment that includes a lot of facts that are in dispute. 

25 So when I get a motion for summary judgment, it will have, 

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 1 you know, a recitation of all the bad things that my client 

 2 has done, which are in dispute that -- it's all in there. 

 3 So on the one hand, it might be nice to have things narrowed 

 4 down to just the things that are in dispute, rather than all 

 5 the bad things that the movant wants to put in that are in 

 6 dispute, but makes it look, you know, as a first impression 

 7 to the judge or the law clerk reading it, Wow, my client is 

 8 really bad, until I can have my say. 

 9 So on the one hand, that would be nice to have 

10 that narrowed down. On the other hand, from -- you know, 

11 the movant is going to be framing what is material and 

12 framing the facts that are material that I'm going to have 

13 to respond to. And I don't -- I don't like that. But I 

14 have that right now. 

15 I think the Northern District, where I'm from, 

16 several years ago we had sort of a point/counter point 

17 system and then went away from it. But I think it was 

18 largely ignored. Some of the judges, I think, tried to 

19 enforce it and some didn't and they just got rid of it. 

20 CHAIRMAN MARK R. KRAVITZ: So you've actually 

21 practiced in -- in point/counter point at least before 

22 judges who insist on it as well as judges -- as well as 

23 judges who don't have it? 

24 MR. BRIAN SANFORD: I did. It's been several 

25 years, ten plus years ago. But local rules required it in 

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 1 the Northern District for a few years. Not many judges seem 

 2 to enforce it, not many parties seem to comply with it. So 

 3 I'm not -- I'm sure what where I stand on that. 

 4 But I do have -- there's three points that -- 

 5 that on -- on other issues on Rule 56 that -- that I would 

 6 like to have changed. One is the -- the rule that says that 

 7 the motion should be filed 30 days after discovery. I have 

 8 often asked a judge could we please have the motions filed 

 9 before discovery is ended. 

10 And I think if you look at the motion for 

11 summary judgment practice, it really becomes a substitute 

12 for trial. And if it's going to be a substitute for trial, 

13 it should have the safeguards to fairness and due process 

14 concepts of a trial. At trial the plaintiff has the burden 

15 of proof. The plaintiff gets -- and because the plaintiff 

16 has the burden of proof, the plaintiff has to go first, the 

17 plaintiff gets to cross examine at trial, the plaintiff gets 

18 to have rebuttal, and the plaintiff gets to go last. 

19 If -- if someone was going to -- as a practical 

20 matter, I can't take a deposition of every single witness. 

21 So I'm always going to have a declaration that's from 

22 someone I don't have a deposition from. At trial I'm going 

23 to be able to cross examine that person. I'm going to be 

24 able to -- they're will be able to be a direct, a cross 

25 examine, a redirect, back and forth. I can't do that on a 

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 1 motion of summary judgment. 

 2 If it's before the discovery deadline, I can 

 3 notice that person up for a quick deposition, I can send out 

 4 another set of discovery requests. I get that opportunity. 

 5 If we're searching for truth, then there shouldn't be any 

 6 reason why I can't continue to do that, and shouldn't have 

 7 to have a special motion before the Court saying I'm -- 

 8 Look, there's more declarations, I need more time for 

 9 discovery. I'm going to delay the discovery deadlines, 

10 which have already past, the judge is going to have to then 

11 postpone things. 

12 Why not have the motion required well before the 

13 discovery deadline in time for them to take all the 

14 depositions that the defense wants to take, and yet have an 

15 opportunity for the nonmovant to -- to cross examine any 

16 other defendants that come up or take any other discovery? 

17 I -- in terms of fairness, I just don't see why 

18 that shouldn't be a policy. And I -- that's been granted by 

19 some judges. Some judges won't let me have that.

20 Second, along the same lines, is a sur-reply. 

21 The plaintiff retains the burden of proof, but motion for 

22 summary judgment practice turns that -- the trial practice 

23 on its head. Even though the plaintiff retains burden of 

24 proof, does not get to go first, does not get to go last. 

25 The movant frames the issues, the respondent gets one chance 

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 1 to respond, and then there's a reply. At a minimum, there 

 2 should be a sur-reply. Again, at trial, the plaintiff has 

 3 the burden of proof, the plaintiff gets to go first and last 

 4 because they have the burden of proof. 

 5 I have been -- the Eastern District of Texas has 

 6 in the local rules automatic sur-reply. The others do not. 

 7 I have been regularly denied a sur-reply in the Northern 

 8 District. 

 9 The third point is I just -- I don't see why -- 

10 I like the idea of acquiring a -- findings for granting of 

11 summary judgment. I don't see the necessity of requiring a 

12 finding for a denial. Denial should be non-appealable. The 

13 defendant doesn't lose anything by denial. He still gets 

14 his defenses. He still gets trial. All he gets is that 

15 he's forced to a trial. So I don't think that -- that a 

16 judge should be required to have to explain the denial, 

17 especially if there is discretion, it's a "should" standard. 

18 If a judge can simply look at these declarations say, Look, 

19 if I'm a fact finder, I just may not find these declarations 

20 credible. This is what a jury is entitled to do. 

21 So a judge should have absolute, in my opinion, 

22 discretion to deny summary judgment and not have to explain 

23 it. They still get a trial. 

24 And I -- this is not in my written submission, 

25 but to have an oral argument would be a nice thing, which is 

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 1 not the practice, at least in the Northern District. Thank 

 2 you. 

 3 CHAIRMAN MARK R. KRAVITZ: Thank you for that, 

 4 Mr. Sanford. Let me just see if anyone has any questions of 

 5 you. 

 6 I very much appreciate you taking the time to 

 7 share your views with us. 

 8 MR. BRIAN SANFORD: Thank you. 

 9 CHAIRMAN MARK R. KRAVITZ: Thank you. 

10 Michele Smith. 

11 Good morning, Ma'am. 

12 MS. MICHELE SMITH, ESQ.: Good morning. Thank you 

13 for the opportunity to appear and comment to the proposed 

14 revisions of Federal Rules, Rule Procedure 56. 

15 My name is Michele Smith. I've been licensed to 

16 practice in the State of Texas since 1992. I'm a

17 shareholder with the law firm of MehaffyWeber. As a matter 

18 of background, I'm a trial attorney. I'm board certified in 

19 personal injury trial law, and a member of the American 

20 Board of Trial Advocates. I also serve as a member of the 

21 Local Rules Committee for the Eastern District of Texas. 

22 But candidly I will now admit I'm not an expert in 

23 federal -- on the federal rules. 

24 In my nearly 17 years of trial experience, I've 

25 practiced almost exclusively on the defense civil side. My 

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 1 practice focuses primarily on products and premises 

 2 liabilities with some emphasis in the mass court area. I've 

 3 also tried cases in medical malpractice and employment -- 

 4 employment law area. 

 5 Today I'm here to testify as a Member of the 

 6 State Bar of Texas, but also as a Member of International 

 7 Association of Defense Counsel. 

 8 I'm a proud member of the State Bar of Texas, 

 9 and I believe strongly in the civil justice system, and in 

10 protecting access to our courts. I've been one of the 

11 fortunate few in my generation who's had the opportunity to 

12 actual try a number of different of lawsuits in a variety of 

13 forums. That's really the exception rather than the rule 

14 these days. 

15 Having said that, however, I also believe that 

16 there are cases, filed for whatever reason, that either have 

17 no merit because when they were filed they had no merit or 

18 because there have been facts that have developed that 

19 render them meritless through the discovery process. For 

20 these cases, I believe a meaningful summary judgment 

21 procedure must be available. In my time before the 

22 Committee -- 

23 CHAIRMAN MARK R. KRAVITZ: Shall be available or 

24 must? 

25 MS. MICHELE SMITH, ESQ.: Must. Must be 

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 1 available. 

 2 In my brief time before the Committee, I'd like 

 3 to spend my time to make two primary points, and also end by 

 4 just commenting on summary judgment in my practice if 

 5 that -- if we have time. 

 6 First, there can be no discretion. There must 

 7 no discretion in granting a full or partial motion for 

 8 summary judgment when there is no genuine issue of material 

 9 facts. 

10 Secondly, the point/counter point pleading, I 

11 believe, is a useful and effective tool for focusing 

12 practicers and the judge on the key issues in the case and 

13 should help to reduce some of the confusion. 

14 On the matter of there being no discretion in 

15 granting a full or partial motion for summary judgment, it 

16 is imperative that our rules offer clear discretion -- 

17 direction rather -- for presiding judges on what their 

18 obligation is once a summary judgment burden is met. 

19 Use of the term "should" offers discretion, not 

20 directive. A court must grant a summary judgment that has 

21 proper -- been properly presented and when there is no 

22 genuine issue of material fact. It's as basic and 

23 fundamental as that. 

24 Use of the term "must" is direct, simple, and 

25 straight forward. There's little to no debate on what that 

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 1 term actually means. 

 2 Clear and unequivocal guidance is imperative, I 

 3 believe, because in my practice most judges -- not all, but 

 4 most judges -- particularly state court judges, do not like 

 5 granting summary judgments. This is particularly true in 

 6 the area of the state in which I practice, which is in the 

 7 Beaumont and Houston area. 

 8 The reasons for this are varied, and I'm sure 

 9 that they would differ by the individual judges, but from my 

10 experience, there are -- there's a subsection of judges who 

11 believe that -- that summary judgments just aren't 

12 appropriate; that all cases should be able to be reached by 

13 the jury, some worry about reversal on appeal, others are 

14 swayed by the emotion of the case. 

15 For example -- 

16 CHAIRMAN MARK R. KRAVITZ: You're excepting Judge

17 Rosenthal? 

18 MS. MICHELE SMITH, ESQ.: Of course. 

19 HON. LEE H. ROSENTHAL: That's Hard Hearted Judge

20 Rosenthal. 

21 MS. MICHELE SMITH, ESQ.: And I say most, not all. 

22 Not all judges. 

23 For example, I -- and this is an example from my 

24 practice. In slip and fall case, a grocery store slip and 

25 fall case, it's much easier to get a summary judgment 

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 1 granted when the amount in dispute is $500 when the evidence 

 2 supports it. You take that same case with the same legal 

 3 standard, being whether the water on the floor presented an 

 4 unreasonable risk of harm, take that same case and put it in 

 5 the context of a plant in an industrial facility where the 

 6 slip and fall caused damages much greater than $500, 

 7 those -- the legal standard that applies to those two cases 

 8 is identical, and if the facts warrant it, there should be 

 9 no grant -- no discretion in granting summary judgment 

10 simply because of the difference in damages. Yet frankly, 

11 this is the reality of civil litigation practice. 

12 And my fear is that by retaining word "shall" 

13 instead of "must" that would give more of an opportunity for 

14 those types of inconsistencies to occur. 

15 If a Court declines to grant a proper summary 

16 judgment because there is discretion, clients are forced to 

17 expend money on unnecessary discovery, pretrial and trial 

18 expenses. 

19 I've had summary judgment denied many a'times 

20 with expressed -- expressly stated reason that, Hey, why 

21 don't you guys go to mediation and see if you can get it 

22 settled. 

23 What happens is that -- that denial, by the way, 

24 can't be appealed, as you all know. Therefore, clients are 

25 put in the enviable position of having to go to mediation 

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 1 and determine whether they want to pay some money -- a 

 2 little bit of money to get out of the case and to avoid 

 3 the -- the uncertainty of a trial in jurisdictions that may 

 4 not be favorable. This cannot be a desired result. 

 5 Grating even partial summary judgment saves 

 6 resources for both sides. That helps to narrow the issues 

 7 and corresponding evidence. It also reduces time and 

 8 expense to the court and jurors in advance. It may also 

 9 posture a case so that a fair settlement may be reached in 

10 advance of trial. 

11 In short, changing the terminology from "should" 

12 to "must," I believe it's imperative to making this rule 

13 really function and to making the summary judgement process 

14 meaningful. I believe that that strong and clear directive 

15 from the federal rules may also trickle down to the state 

16 court arena and make those summary judgments more in line 

17 with their local practice. 

18 My second point is on point/counter point 

19 pleadings. As a member of the Eastern District Rules -- 

20 Local Rules Committee, this is a procedure that we have in 

21 place in the Eastern District of Texas. I believe it's -- 

22 it's -- it's been in place for some time. In my service on 

23 the committee, which has been about three years, we have 

24 tweaked the wording somewhat, but we have not done away with 

25 the procedure. 

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 1 Candidly I want to say that I have not filed a 

 2 motion for summary judgment where I have personally used the 

 3 point/count point procedure. However, in preparing for my 

 4 testimony today, I did discuss with some of the 

 5 practitioners who do practice in that arena. And though 

 6 it -- it does require more work on the front end, almost 

 7 uniformly they felt that it was much harder for either side, 

 8 either the movant or the responding party, to hide issues 

 9 when the procedure was utilized. It forces counsel to 

10 become much more organized when they filed a motion and much 

11 more specific in responding. It allows issues to be 

12 highlighted more easily. 

13 In the Eastern District of Texas, a statement of 

14 undisputed material fact is required by both the motion, and 

15 a response must be made to the statement of undisputed 

16 material facts with specific references in the evidence. 

17 I believe that making practitioners focus their 

18 -- their pleadings early on can facilitate resolution of 

19 cases, either by the person filing the motion for summary 

20 judgment by looking at the evidence and knowing that they 

21 don't have a valid motion for summary judgment because of 

22 the statement of undisputed material facts, or by focusing 

23 the person responding to the motion for summary judgement to 

24 take a hard look before that hearing, before the Court uses 

25 his judicial resources to determine whether they really have 

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 1 responses to the statement of -- of material facts. 

 2 So I do support the point/counter point 

 3 procedure because I believe it saves money in the long run 

 4 and it makes the process more meaningful. 

 5 Finally, just a quick -- if the Committee will 

 6 indulge me, just a quick point on summary judgment practice. 

 7 My -- I do have -- I do practice somewhat in the federal 

 8 court. My -- my traditional experience has been more in the 

 9 state court arena. During my 17 years of practice, I have 

10 been involved in thousands of cases. And in preparing for 

11 today, I cannot stand before the Committee and tell you how 

12 many motions for summary judgment I have personally filed. 

13 But I can certainly state with certainty that I do not file 

14 motions out of just habit or routine. I believe that that's 

15 a mistake. And I believe that by doing so, if you do not 

16 have a valid motion for summary judgment, it really affects 

17 your credibility before the judges before you practice. 

18 Additionally, my clients aren't the type of 

19 clients that like to pay for summary judgments that don't 

20 have a prayer of be granted. But by filing -- and 

21 additionally I think another reason why I don't -- the 

22 practice is not abused, at least in my practice, in the area 

23 in which I practice, is often times by filing a motion for 

24 summary judgment you're educating your opponent on what the 

25 real issues in the case are. And I don't believe that 

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 1 that's a good practice if you know you can't meet the 

 2 summary judgment burden. 

 3 But in short, in those -- in those cases in 

 4 which you do meet the summary judgment burden, it's 

 5 important -- summary judgment is an important part of our 

 6 civil justice system and I think it's something that we need 

 7 to make meaningful and -- and make enforceable and I think 

 8 it should be protected. 

 9 CHAIRMAN MARK R. KRAVITZ: Thank you very much, 

10 Ms. Smith. Let me see if anyone -- 

11 Judge Wood. 

12 HON. DIANE WOOD: Yes. Thank you very much. I 

13 had two questions for you. And -- and actually Judge 

14 Murphy's comments also raised these. In the "should" versus 

15 "must" debate, there's a third possibility and I'm sure 

16 you've seen it many times in your practice and I'm sure 

17 everyone has. Which is that the motion for summary judgment 

18 is filed and it just, for some reason, doesn't get ruled on. 

19 And then, you know, maybe there's settlement or maybe the 

20 case gets all the way up to trial. 

21 So I think one of the reasons the language 

22 "should" was chosen, with respect to the earlier revision, 

23 was in a sense truth and labeling. You know, the reality is 

24 that if the judge just somehow didn't feel ready to rule, he 

25 just didn't rule. It's not that you were saying that I'm 

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 1 denying summary judgment. But -- and I wonder if the rule 

 2 should even address that somehow or whether that -- you know 

 3 how that factor should fit in. 

 4 And the other question I have for you is whether 

 5 you think the same standard should apply for summary 

 6 judgment on the entire case as it applies for partial 

 7 summary judgments. Because one can imagine a case where the 

 8 judge is right on the borderline for -- for a partial 

 9 summary judgment. You know the case is going to have to go 

10 to trial anyway, so maybe you should just go ahead and let 

11 the whole thing go to trial. 

12 So if you could comment on those two things. 

13 MS. MICHELE SMITH, ESQ.: Let me see if I -- I'm 

14 hoping I understood your question. The first -- the -- 

15 well, let me start with your second question. Your second 

16 question is, do I believe that the "must" standard should 

17 apply to -- 

18 HON. DIANE WOOD: Apply to partials as well. 

19 Should you have the same standards for summary judgment -- 

20 MS. MICHELE SMITH, ESQ.: I believe when there --

21 when the evidence presented offers no genuine issue of 

22 material fact, that regardless of whether they're partial or 

23 full summary judgment that -- that the standard should be 

24 "must." I don't think that there should be any discretion 

25 in granting summary judgments that meets the burden of 

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 1 proof, because frankly the burden of proof is not that easy 

 2 to meet all ready. 

 3 And -- and -- 

 4 HON. DIANE WOOD: And the other -- the other is 

 5 just the reason the word "should," I think, is there is 

 6 because no matter how we word the rules, some realists might 

 7 say there's still going to be some discretion in the 

 8 District Court -- 

 9 MS. MICHELE SMITH, ESQ.: Absolutely. 

10 HON. DIANE WOOD: -- as to whether to grant it or

11 not. So, isn't "should" a little more honest, even though 

12 on some theoretical level "must" sounds right? 

13 MS. MICHELE SMITH, ESQ.: I think that your -- 

14 your first question was -- was in the case of where you 

15 aren't able to get a summary judgment -- 

16 HON. DIANE WOOD: You just don't get a ruling. 

17 MS. MICHELE SMITH, ESQ.: You just can't get a 

18 ruling. Well, I honestly have some practical experience 

19 with that. And I don't know that that -- well, I can tell 

20 you had a very unexciting run -- a fun conversation with a 

21 client earlier this week on that very issue in a case in 

22 which -- it's a products liability case where even their 

23 expert agrees that there wasn't a defect with the product. 

24 However, they still have a valid claim again the innocent 

25 retailer. And I had tell my client that we filed a motion 

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 1 for summary judgment, but I really can't do anything about 

 2 getting the judge to grant it or deciding it before trial. 

 3 So, I don't -- I mean, that is a problem. I 

 4 would like to see some way that's addressed. I don't know 

 5 if that -- that can be uniformly addressed in the rules, but 

 6 it is certainly a problem in practice. 

 7 CHAIRMAN MARK R. KRAVITZ: Okay. Thank you. 

 8 Judge Murphy, go ahead. 

 9 HON. PATRICK MURPHY: Could I ask a question of 

10 Judge Wood? 

11 CHAIRMAN MARK R. KRAVITZ: You're assigning this 

12 to the Court of Appeals? 

13 HON. PATRICK MURPHY: I would never do such thing. 

14 Judge Wood, what you're -- it sounds like what 

15 you're talking about in the question is in reality, judges 

16 may be in a criminal felony case and you'd be answering a 

17 mandamus with a prisoner and maybe have three class 

18 certifications under advisement, and when the federal rules 

19 say "must," you're saying, Does that mean literally you just 

20 stop everything and do it right then and there because 

21 somebody would like to have it? 

22 I never thought of that, but I wish I had. 

23 That's a reality. 

24 HON. DIANE WOOD: Well, sure. And that's the 

25 concern. And I don't want to get mandamus petitions from 

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 1 every disgruntled litigant all over the Seventh Circuit 

 2 saying, Well, you know, a month has gone by and Judge Murphy 

 3 hasn't ruled on my summary judgment motion yet. 

 4 HON. PATRICK MURPHY: Yeah. 

 5 HON. DIANE WOOD: So, that's -- that's a worry. 

 6 CHAIRMAN MARK R. KRAVITZ: All right. Thank you. 

 7 Thank you, Ms. Smith, very much. 

 8 Margaret Harris. 

 9 MS. MARGARET HARRIS, ESQ.: Good morning. And 

10 thank you all too for your service to the Bar, because I 

11 know you have a lot of other work to do. And thank you for 

12 allowing me to -- to come speak this morning. I apologize 

13 that my written comments were not timely presented to you, 

14 so you haven't had an opportunity to look at them. 

15 I'd like to address two basic points, with a few 

16 comments about some other things. 

17 CHAIRMAN MARK R. KRAVITZ: Would you tell us a 

18 little about your practice first. 

19 MS. MARGARET HARRIS, ESQ.: I'm sorry. I am a --

20 have been licensed since 1981. I practice in Houston, 

21 Texas. Ninety plus percent of my practice is in federal 

22 court, and 90 plus percent is employment. Of the

23 employment, 90 percent is employees. So, I'm usually the 

24 nonmovant, although occasionally there are some affirmative 

25 defenses that I can be the movant, but not when I file a 

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 1 Rule 56 motion. 

 2 I don't want to belabor the point/counter point, 

 3 but we don't have that in Southern District of Texas. I 

 4 have had a privilege of having some cases in the Eastern 

 5 District, and thank goodness I haven't had to deal with the 

 6 point/counter point over there. 

 7 But just by way of example, my law partner is -- 

 8 now has a case in the District Court of District of 

 9 Colombia. And in dealing with the Rule 56 motion that was 

10 filed in that case, she obviously had to prepare a response, 

11 a brief, a legal authority, citations to the record, all 

12 the -- all the attachments to go with that. 

13 But in addition, because the movant filed 109 

14 statements of material facts, none of the -- well, most of 

15 them are paragraphs. Not, you know, like the statute of 

16 limitations runs on X day. I mean, that would be very 

17 simple. But most of these are paragraphs. They make 

18 inferences, they reach conclusions. She had to prepare a 

19 18 -- 17-page response. It added six and-a-half hours to 

20 the time spent in responding to the summary judgment motion. 

21 She separately afforded this time from regular response. 

22 Plaintiffs are -- in employment cases anyway, 

23 we've gotten to the point that we think that defense counsel 

24 must believe it's now practice to now file a Rule 56 motion. 

25 They do come in every single case, regardless of, you know, 

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 1 how often we -- we do survive them. We go on. We win the 

 2 verdict. We have an upheld appeal. That doesn't stop them. 

 3 They still file a motion for summary judgment. 

 4 In employment discrimination cases, unlike 

 5 breach of contract kind of cases, it's very complex. The 

 6 facts are very, very complex. We're putting together pieces 

 7 of the puzzle. We don't have direct evidence. Hardly ever 

 8 do we have direct evidence. Even when we've got direct 

 9 evidence because my client says, The decision maker said 

10 this to me, that's still disputed because the decision maker 

11 says, I never said such a thing. 

12 So we've got these complex cases that we're 

13 building on circumstantial evidence. And the use of the 

14 word "material" is somewhat confusing to me. Because what 

15 is material in an employment discrimination case that's 

16 built on complex circumstantial evidence? We have one 

17 example that was ultimately decided by the U.S. Supreme 

18 Court around two years ago, I think, with Ashe versus Tyson 

19 Foods. In that case, the Supreme Court said, Yeah, it kind 

20 of was significant that the manager used word "boy" in 

21 reference to the African-American employees. 

22 Now, the lower courts hadn't found that of any 

23 significance at all. Not in District Court nor the Court of 

24 Appeals found it significant. But the Supreme Court said, 

25 Yeah, it's kind of important and then that should have been 

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 1 considered. So, I -- that sounds material to me. But it's 

 2 a tiny piece of the puzzle when you have to look at all the 

 3 other evidence as well. My -- so material has a -- has a -- 

 4 I don't -- don't think a very good definition in our kinds 

 5 of cases. 

 6 The other part of the rule that -- or what the 

 7 rule doesn't speak to is inferences. Obviously when you're 

 8 building a case on circumstantial evidence, you also are 

 9 relying heavily on inferences. Like the use of word "boy." 

10 What does that mean? Does that mean the person was just a 

11 youngster in -- in -- in the eyes of the person who made the 

12 comment? Or does it mean that they're racist? That's an 

13 inference that one has to draw from those facts. 

14 The courts -- the lower courts earlier would 

15 have labeled those stray remarks, making an inference as a 

16 matter of law that it was not material. 

17 The Ashe case also dealt with the -- with the 

18 inferences that if the two applicants' qualifications were 

19 not so distinct that disparity jumped off the page and 

20 slapped you in the face, then that's not material, it's not 

21 relevant. And the Supreme Court said, No, no, that's the 

22 wrong inference. You can't make that kind of inference. 

23 You shouldn't do that. 

24 But I would urge the Committee to include 

25 language acknowledging the importance of inferences and how 

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 1 the lower courts should consider inferences. And I think 

 2 the word "inferences" needs to be in the language of the 

 3 rule. That is the law. The law is -- you should considered 

 4 the facts. But the law is also to consider inferences. So 

 5 if you can include one term in the rule, I think you should 

 6 include both. 

 7 If I -- my written submission has some 

 8 suggestions on -- on the wording. I've -- you know, I've 

 9 explored within my myself. I'm not on the Committee. I 

10 don't know all the nuances. And I don't know about the -- 

11 CHAIRMAN MARK R. KRAVITZ: I hope you're not using 

12 the word "shall." 

13 MS. MARGARET HARRIS, ESQ.: Shall. I kind of like 

14 that. I think if I were a District Court Judge, I might 

15 take a little offense if the rules were telling me I must do 

16 something. I would think that I'm intelligent enough to 

17 exercise my own discretion and I don't need the word "must" 

18 in there. But I'm not a District Court Judge. 

19 I would like to -- if the Committee is going to 

20 us the point/courter point, I would ask you put some heat in 

21 it. If the movant is going to say, This is a genuine issue 

22 of material facts, these 109; these are all significant in 

23 the presented case, and if the nonmovant shows that one of 

24 them is disputed, the motion gets denied. 

25 I mean, put some heat in it. I mean, if you're 

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 1 going to do it, then make it very -- make them be very, 

 2 very, very, very concise because there's going to be a 

 3 penalty if you put one thing in here that the nonmovant 

 4 proves to be wrong, you're going to lose your motion. 

 5 That -- that would happen help. I think it would cut down a 

 6 lot. 

 7 The -- if the District's going to practice 

 8 this -- I mean, the judges have now at least four extra 

 9 documents to go through. They have the movant's statements 

10 and the non-movant's response, they have the non-movant's 

11 statement and the movant's response, they have the revisions 

12 that apply to the motions. I mean, it just -- it adds 

13 incredibly. 

14 I would just say that I agree with the comments 

15 that we should have a server clause because we do have the 

16 burden of proof. I agree there should be oral argument. I 

17 think it's a little difficult -- I talked to a judge in 

18 Chicago about that, and -- and she was telling me about how 

19 difficult that would be because she's already gone through 

20 the motions, she's ready to rule. And she at least agreed 

21 to reconsider her -- her own practice and say, okay, when 

22 she's gone through it and everything, she's got a few 

23 points, she can tell the parties, Look, this is where I'm 

24 likely to go. Y'all come in, we can discuss it. 

25 I have had cases where I think it would have 

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 1 made a difference. I have had a District Court grand 

 2 summary judgment when there was just a misunderstanding of 

 3 the record. He believed that there was some facts that were 

 4 not, and so we added, what, a year and-a-half, two years to 

 5 that case because it had to go up and come back down. 

 6 My only other comment is -- I think it's called 

 7 56(d) now, but -- or in the proposal, but 56(f) right now. 

 8 56(f) motions, I haven't done very many of them, but the 

 9 problem is that it's not going to be considered before the 

10 motion for summary judgment is considered. We have, like, 

11 20 days or 21 days, I think, in the Southern District to 

12 respond to the motion. So summary judgment motion was filed 

13 on Day One, 56(f) motion might not be filed until Day 10, 

14 and surely you're going to get to the summary judgment 

15 before you get to my request to say, Wait a minute, they've 

16 sand bagged me and I haven't been able to takes X's 

17 deposition. 

18 So just take that into consideration when you're 

19 looking at that. 

20 CHAIRMAN MARK R. KRAVITZ: Okay. 

21 MS. MARGARET HARRIS, ESQ.: That's all my 

22 comments. 

23 CHAIRMAN MARK R. KRAVITZ: Great. 

24 PROF. STEVEN S. GENSLER: Let me -- 

25 CHAIRMAN MARK R. KRAVITZ: Yes. 

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 1 PROF. STEVEN S. GENSLER: I think that the -- the

 2 role of -- the role inferences is very important, as you 

 3 know. And I think you're suggestion is that inferences 

 4 somehow make their way into the statement part of the 

 5 point/counter point. 

 6 My question is: Have you found that in those 

 7 cases where you've done this type of -- of briefing practice 

 8 that you're unable to adequately address inference in the 

 9 brief? 

10 MS. MARGARET HARRIS, ESQ.: I personally have not

11 done the point/counter point. We have one experience, and 

12 that's my law partner right now. Just in regular course of 

13 briefing, it is kind of hard. I mean, think about Hamlet. 

14 How do you reduce that to a point/counter point? Is the guy 

15 crazy or is he not? How do you decide was revenge 

16 appropriate or wasn't it? I mean, all those are inferences 

17 that you draw. Our cases are not the kind, usually, 

18 unfortunately, that can be resolved with the CSI sort of 

19 approach. You know, we've got the lab testing this and 

20 looking for DNAs and hairs. 

21 And so our cases are approved more like we're 

22 the hounds barking at night. Little tiny -- little tiny 

23 things. 

24 CHAIRMAN MARK R. KRAVITZ: Judge Walker. 

25 HON. VAUGHN R. WALKER: This rather follows up on

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 1 Professor's Gensler's question. Why, given your practice, 

 2 isn't a point/counter point approach advantageous in this 

 3 sense? When you received 109 allegedly material facts from 

 4 the moving party, why can't you just stand up before the 

 5 judge, pick out the best one and draw a big red circle 

 6 around it and say, Now, Judge this is disputed because of 

 7 some fact that you pointed to in the record. 

 8 MS. MARGARET HARRIS, ESQ.: Two things -- 

 9 HON. VAUGHN R. WALKER: And alternatively -- 

10 MS. MARGARET HARRIS, ESQ.: Two things. One is -- 

11 HON. VAUGHN R. WALKER: Let me ask the following 

12 question. 

13 MS. MARGARET HARRIS, ESQ.: Okay. 

14 HON. VAUGHN R. WALKER: Assuming that you get one

15 of these motions from a savvy defense lawyer who doesn't 

16 file 109 points, but two or three or four of bare bones 

17 motions, why can't you respond with 109 allegedly disputed 

18 facts? So why isn't the point/counter point actually an 

19 advantage rather a disadvantage, given your practice? 

20 MS. MARGARET HARRIS, ESQ.: Two things. One is 

21 that we would have already spent six and-a-half hours 

22 creating a written response to go in the record. The other 

23 is that I don't get an opportunity to stand up in front of 

24 judge and circle this and say, Judge, look at this. We 

25 don't get an oral argument. We get an oral argument in 

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 1 Fifth Circuit, but we don't get it in the District Court. 

 2 Did that address your question? 

 3 HON. VAUGHN R. WALKER: And the other point which

 4 you made in response to Professor's Gensler's description 

 5 incapsulating the inferences of these point by point 

 6 approaches. 

 7 MS. MARGARET HARRIS, ESQ.: It's -- it's very 

 8 difficult. I mean, I wish I were a more skilled writer in 

 9 trying to describe body language, things like that that go 

10 on in the work place every day. I mean, I try to describe 

11 it as best I can from my client has told me, but -- I mean, 

12 I've had one client tell me, it's like, Of course I know 

13 he's racist; you can practically smell it. How do you put 

14 that in a brief? You can't. 

15 HON. MICHAEL M. BAYLSON: Judge? 

16 CHAIRMAN MARK R. KRAVITZ: Judge Baylson. 

17 HON. MICHAEL M. BAYLSON: Can I -- it's my view 

18 that in employment cases, particularly which you gather you 

19 do most of, that the point/counter point is actually very 

20 plaintiff friendly because for two reasons. First of all, 

21 it require -- usually the defendant almost always is the 

22 moving party. Would you agree with that? 

23 MS. MARGARET HARRIS, ESQ.: Yes. 

24 HON. MICHAEL M. BAYLSON: And therefore, the 

25 defendant has the burden of preparing this -- this point/ 

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 1 counter point proposal, which in a lot of cases can take 

 2 more time and more -- therefore more expensive for the 

 3 defendant to prepare. But at the same time -- and -- and 

 4 whether you get 109 points, paragraphs, or if you've -- 

 5 you're in a district that doesn't require point/counter 

 6 point, maybe you'll get 109 pages of a brief. Which ever 

 7 you get, you -- then the burden turns to you to point out to 

 8 the judge that there are disputed issues of fact, of 

 9 material fact, correct? 

10 Now, don't you think it is easier to do that in 

11 a point/counter point system where you can respond to 

12 specific paragraphs and point to specific depositions or 

13 affidavits in the record or supply an affidavit of your own 

14 client raising these issues of fact, and then that is more 

15 effective advocacy than just filing a brief with 109 pages 

16 of your own, or however many pages you choose to put. 

17 MS. MARGARET HARRIS, ESQ.: My understanding is 

18 that in those districts that require the point/counter 

19 point, it's in addition to the brief. So we've already 

20 responded to 50 pages of argument that presents that view of 

21 the facts from the movant's side and the law from the 

22 movant's side. Then separate and apart from that, we have 

23 to respond to this other document. 

24 HON. MICHAEL M. BAYLSON: Well, you're -- you're 

25 correct. Go ahead. 

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 1 MS. MARGARET HARRIS, ESQ.: And if -- if it was so 

 2 limited that there were four or five facts, then I would 

 3 agree with you. You know, if -- if the facts are so 

 4 significant that the movant is ready to say, Okay, if I lose 

 5 on any one of these points, I'm going to lose my motion -- 

 6 HON. MICHAEL M. BAYLSON: Let's say -- you're 

 7 correct. But let's say those 109 and you -- you're willing 

 8 to concede 100 of them, but you've nine that are very 

 9 material, you just come back in your response and you say, 

10 Judge, you know, of those 109, 100 are ridiculous, but here 

11 are not -- here are nine that I can show you in the record 

12 there are issues for trial. 

13 Isn't that -- doesn't that make it easier for 

14 you to demonstrate to the judge that a trial is required? 

15 MS. MARGARET HARRIS, ESQ.: I wish it would. I 

16 wish it would. 

17 HON. MICHAEL M. BAYLSON: Are you saying that 

18 Judges don't agree to these things or -- 

19 MS. MARGARET HARRIS, ESQ.: I'm saying -- 

20 CHAIRMAN MARK R. KRAVITZ: She doesn't do them. 

21 MS. MARGARET HARRIS, ESQ.: I think having to 

22 wade -- 

23 HON. MICHAEL M. BAYLSON: Meaning you haven't 

24 personally done it. I understand that. 

25 MS. MARGARET HARRIS, ESQ.: Yeah. I mean, having

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 1 to wade through all of this stuff, I am too nervous about 

 2 how often summary judgments are granted in our cases. I 

 3 don't feel comfortable telling a District Court judge, I 

 4 disagree with these nine, and not even say anything about 

 5 that other 100. I just don't feel comfortable doing that. 

 6 CHAIRMAN MARK R. KRAVITZ: Yeah. 

 7 HON. MICHAEL M. BAYLSON: Is -- I'm sorry. 

 8 CHAIRMAN MARK R. KRAVITZ: Go ahead. 

 9 HON. MICHAEL M. BAYLSON: Is your point that 

10 the -- your fear is that the point/counter point has the 

11 effect of stripping the facts from the inferences that have 

12 to go with the facts? 

13 MS. MARGARET HARRIS, ESQ.: That same kind of 

14 thing happens in the briefs as well. But that is the same 

15 time of problem. And -- and so inferences come up in both. 

16 The point -- the thing about the point/counter 

17 point is that it just adds so much time and work into the 

18 case for us. And I think, more importantly, for -- for the 

19 judges. They have these more papers to go through. 

20 CHAIRMAN MARK R. KRAVITZ: Yes, Professor Marcus.

21 PROF. RICHARD L. MARCUS: I think you are the 

22 second person who has urged something like a rule provision 

23 in saying that if any one of the 109 is genuinely in 

24 dispute, the judge must deny the motion for summary 

25 judgment. Is that one of the things you were suggesting 

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 1 would be useful? 

 2 MS. MARGARET HARRIS, ESQ.: Yeah. 

 3 PROF. RICHARD L. MARCUS: Because that -- that --

 4 I'm wondering -- 

 5 MS. MARGARET HARRIS, ESQ.: But -- 

 6 PROF. RICHARD L. MARCUS: I'm wondering then if 

 7 the judge grants the motion for summary judgment there's an 

 8 appeal, and the Appellate Court concludes, without regard to 

 9 Number 73 -- that's the one that was circled in red -- 

10 MS. MARGARET HARRIS, ESQ.: Uh-huh. 

11 PROF. RICHARD L. MARCUS: -- that summery judgment 

12 clearly would be appropriate on the record in this case, but 

13 it must reverse because the judge is required to deny the 

14 motion if Number 73 is genuinely in dispute, even if the 

15 Appellate Court concludes that doesn't really matter, 

16 summary judgment would otherwise be appropriate. 

17 MS. MARGARET HARRIS, ESQ.: I understand your 

18 point, but if it was not a significant fact, a significant 

19 matter in dispute, my position is that it shouldn't be in 

20 there to begin with. That's how you put -- 

21 PROF. RICHARD L. MARCUS: I understand. 

22 MS. MARGARET HARRIS, ESQ.: That's how you put "T" 

23 in this rule if you're are going to do that. There should 

24 be some consequence. 

25 CHAIRMAN MARK R. KRAVITZ: If you're just trying 

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 1 to keep your statement shorter -- and we've all had 

 2 statements that begin with the first sentence being, The 

 3 date I was born....Well, that may or may not be material in 

 4 the case. And your point is, why is that there if we're not 

 5 really trying to focus on that? 

 6 HON. LEE H. ROSENTHAL: Judge? 

 7 CHAIRMAN MARK R. KRAVITZ: Oh, I'm sorry. 

 8 HON. LEE H. ROSENTHAL: Is that more like sanction 

 9 though than a summary judgment based conclusion? 

10 MS. MARGARET HARRIS, ESQ.: I think sanctions are

11 different, Your Honor. I think sanctions are for abuse of 

12 the process, abuse of the courts. 

13 HON. LEE H. ROSENTHAL: What you're describing 

14 isn't. As I hear you talk about it, it seems to fit that 

15 description; that is, you view these endless statements of 

16 undisputed facts as an abuse of what was intended to be a 

17 targeted and very specific set of facts limited to those 

18 that are both undisputed and material. 

19 MS. MARGARET HARRIS, ESQ.: Uh-huh. And I hear 

20 you. But I can't imagine filing a motion for sanctions with 

21 the court that my opponent has filed -- 

22 HON. LEE H. ROSENTHAL: No, I'm not suggesting 

23 that. But it sounds like you're talking about -- and I 

24 didn't mean to interrupt you. I'm sorry. But it sounds as 

25 if you're talking about having the "T" as a kind of a 

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 1 sanction based response to an improper filing of -- which is 

 2 the re -- what Professional Marcus described is an Appellate 

 3 Court looking at this from a summary judgment lense, and in 

 4 fact what the judge was doing was saying, No, you screwed up 

 5 the process and therefore I'm denying summary judgment. 

 6 MS. MARGARET HARRIS, ESQ.: Well, and I see your 

 7 point about that. But if the Court -- if the Committee 

 8 wants a rule that actually works, then I think it's -- it's 

 9 better for the courts to have these five points. Okay, 

10 here's these five points. The case, you know, hinges on 

11 these five points. That makes the process a whole lot more 

12 workable. 

13 PETER D. KEISLER, ESQ.: It is almost an estoppel

14 concept? Essentially having asserted that this fact was 

15 material, you wouldn't then be able to go to the Court of 

16 Appeals and say, Even though there was a dispute, the fact 

17 really wasn't material because if it were, you'd be 

18 essentially taking the position below that it wasn't true. 

19 Is that the way you think of it? 

20 MS. MARGARET HARRIS, ESQ.: I think that's a good

21 way of putting it, yeah. 

22 CHAIRMAN MARK R. KRAVITZ: Thank you very much. 

23 MS. MARGARET HARRIS, ESQ.: Thank you so much. 

24 CHAIRMAN MARK R. KRAVITZ: We appreciate it. 

25 Mr. Mason. 

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 1 We're going to -- we're going to keep going 

 2 until around 10:15, if that works for everyone. We're going 

 3 to take morning break. 

 4 Welcome, Mr. Mason. 

 5 MR. WAYNE MASON: Good morning. Thank you for the 

 6 opportunity to speak with you. My name is Wayne Mason. I 

 7 am a lawyer from Dallas. I have a national trial practice, 

 8 which I've tried cases around the country in both federal 

 9 and state court in various disciplines; anything from 

10 pharmaceutical/medical advice, catastrophic injury class 

11 actions, and the like. So, I have a diverse practice 

12 myself. I also have the privilege of being the Chair of the 

13 Federation of Defense & Corporate Counsel, and so I do speak 

14 on behalf of the membership as well today. 

15 Let me say that I take it very seriously of 

16 being careful not to address things not having walked in the 

17 shoes of someone else. And so not having been a judge and 

18 certainly not a federal judge, I respect the comments that 

19 Judge Murphy and others that have submitted comments. And 

20 mine will be from a practitioner standpoint. My -- my 

21 experience, certainly, that I -- I cannot relate to that. 

22 Nor I can relate to the employment nature of the practice. 

23 And so I respect those practitioners that have already 

24 spoken with their experience as well. 

25 I would speak first to the issue of Rule 56(a) 

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 1 and the issue of the "must/should" distinction or "shall" 

 2 thrown in there as well. It's a very important issue, I 

 3 believe, as a practical matter. There is, in my experience, 

 4 a frustration with respect to clients, with respect to the 

 5 issue. I remember one in particularly, representing a 

 6 multi-national company from Asia. A -- basically where the 

 7 law was -- we were right on the law and right on the facts 

 8 and the that motion is otherwise not granted. And trying to 

 9 explain that to multi-national clients who do business in 

10 this country -- and quite frankly for national clients as 

11 well -- here, it is difficult to explain why it is that it 

12 meets the standard annunciated with respect to no genuine 

13 issue of material fact, yet there is not a granting of -- of 

14 the summary judgment. 

15 CHAIRMAN MARK R. KRAVITZ: In the cases you had in 

16 mind, are there situations where there's -- it's not even 

17 acted upon, or are there situation is where it's just denied 

18 one word, no explanation? 

19 MR. WAYNE MASON: Well, unfortunately both. 

20 CHAIRMAN MARK R. KRAVITZ: Both. 

21 MR. WAYNE MASON: And even in cases in which both

22 sides have filed summary judgments, I believe that it is 

23 appropriate, one way or the other, for the Court to make a 

24 determination, but otherwise it is not ruled on. 

25 And so the issue of clarity there, I think it's 

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 1 very -- I think this issue of "should" and discretion is one 

 2 that is -- is important to clarify. I do not believe that 

 3 should be discretionary. I respect the judiciary and the 

 4 many things that there are discretion with. But if we're 

 5 going to have a system that -- I know that the Committee has 

 6 said they're not dealing or changing the standards here, and 

 7 I think that's very important. That's my concern with this 

 8 issue of inference. 

 9 And in fact, sure, there's always there a trial 

10 where you can check the -- the body language, I think, was 

11 even referred today. But if the -- if the law is what it is 

12 and the standard is what it is and it's not changing, I 

13 think we need to be very careful about that. But in 

14 applying it, it is important, I believe, for people to be 

15 able to trust the fact that it will be ruled on. And I 

16 think it's a great frustration of practitioners is the fact 

17 that judges won't rule. That is more of a problem at a 

18 state court level than it is at the federal court level in 

19 my experience. But it is something that -- I think clarity 

20 here is important. 

21 I do want to address this issue of cost for a 

22 moment because I know in some of the materials submitted 

23 there's been issues about additional cost, particularly with 

24 point/counter point, which I'll address in a moment. But 

25 the enormous cost to clients -- and I do do some work in the 

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 1 commercial litigation area where I represent a company as a 

 2 plaintiff. So it's not all defense oriented. 

 3 But the enormous cost of preparation for trial 

 4 and trial -- and in many other cases that I'm involved in, 

 5 we're not talking about let it go to the jury and it's a 

 6 three-day trial. I mean, we're talking about three weeks, 

 7 three months potentially. 

 8 Enormous expense involved potentially when 

 9 motions are either not ruled on or denied when there is no 

10 genuine issue for material facts. And it's difficult and 

11 it's something that -- that cost, when you just oppose those 

12 costs associated with the briefing cost and the like, I 

13 believe that there's significantly greater, in my

14 experience, with respect to the trial preparation and the 

15 trial itself. 

16 The point/counter point, I had the privilege or 

17 not of practicing in jurisdictions that handle it both ways, 

18 and have had experience with it both ways. And a couple 

19 points just purely from a practitioners standpoint is that 

20 it does -- the point/counter point does force you to focus 

21 on the issues of your case of -- as a trial lawyer of what 

22 you can prove, what you can't prove, and whether it does 

23 survive. 

24 I will tell you that there have been times in my 

25 office in which in a jurisdiction of point/counter point 

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 1 where we have looked at it and not filed motions. And I 

 2 know Judge Murphy says they're filed in every case, but I do 

 3 not file them in every case in which I'm involved because of 

 4 was focus and the -- the really pulling down the issues. I 

 5 think it's a valuable tool for practitioners that -- that is 

 6 beneficial. 

 7 CHAIRMAN MARK R. KRAVITZ: One thing we've heard 

 8 is that sometimes the statements get very long, particularly 

 9 complex cases. So, 109. But actually I've seen them 350 

10 and -- and more than that. Like in a medical device case or 

11 a catastrophic injury case, give us some sense -- I mean, 

12 what are we talking about? It's not clearly five material 

13 facts when you file a motion. 

14 MR. WAYNE MASON: Well, not necessarily. I think

15 the comment was made before about the issue of savvy 

16 practitioners and people that recognize their audience, I 

17 believe, and how foolish it can be to file these -- as Judge 

18 Sedwick pointed out in his comment, 322, I think, points, 

19 and that it is appropriate to tone it down. 

20 My experience is that what I call "motion 

21 lawyers" do dumping whether it's point/counter point or not, 

22 and whether it's a 109-page brief, or whether it's a 109 

23 points that -- unfortunately, those are sometimes the case 

24 of the strategy and the style of which people operate, which 

25 is why I do want to address 56(h) in just a moment about 

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 1 that. 

 2 Yes, sir? 

 3 CHAIRMAN MARK R. KRAVITZ: Go ahead. 

 4 PROF. RICHARD L. MARCUS: Could I just follow up 

 5 with a question on something I think you said. I think you 

 6 said, sometimes you find that the point/counter point 

 7 analysis persuades you that you shouldn't proceed with and 

 8 file a motion because of that focus that you reached using 

 9 that process. 

10 MR. WAYNE MASON: Yes, sir, I did say that. 

11 PROF. RICHARD L. MARCUS: Have you had the reverse 

12 experience in districts that don't require -- that is, you 

13 file a motion and later you conclude, Oh, shoot, if only we 

14 had point/counter point we would have seen that this is not 

15 worth pursuing? 

16 MR. WAYNE MASON: I can't say that that specific 

17 thing has come to mind; that if we had count/counter point 

18 that -- that specifically this wouldn't have occurred. 

19 PROF. RICHARD L. MARCUS: More generally that -- 

20 that you weren't as fully focused because you haven't had to 

21 do that extra task. 

22 MR. WAYNE MASON: Well, it's true. As a practical 

23 matter, you know, busy practitioners that have lots of work 

24 do and the like, sometimes, you know, their offices they -- 

25 you know, it -- it just -- too much gets filed, or let's get 

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 1 the motion on file. And it's a good exercise. It's just a 

 2 good exercise. 

 3 And I think from a cost standpoint, the other 

 4 thing to consider is -- I'm sorry. 

 5 CHAIRMAN MARK R. KRAVITZ: No, no, no. I'm just 

 6 going to say Judge Baylson has a question, Judge Colloton 

 7 and then Judge Rosenthal. Okay, so you're to have to 

 8 tinker, you know -- 

 9 MR. WAYNE MASON: I'll be happy to answer the 

10 questions. 

11 HON. LEE H. ROSENTHAL: If I the chance. 

12 HON. MICHAEL M. BAYLSON: All right. Let me 

13 start, if I may. You have a national practice and I think 

14 that's an important perspective. One of the motivations in 

15 this Committee starting down this road was the 

16 volcanization, if I can call it that, of Rule 56. There was 

17 this proliferation of local rules throughout the country. 

18 And even within specific districts individual judges would 

19 have specific practice orders that differed one from other 

20 in various ways. And that -- we were told, and I think it's 

21 true to some extent, that this created a lot of problems for 

22 lawyers that practiced in many districts. So, I'd like you 

23 to -- that's -- that's one question. 

24 The second question, which is related to that, 

25 is that we've also found, as we go through this process over 

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 1 the last three years, that a lot of judges don't like to be 

 2 told they have to do something in a specific way. And with 

 3 great respect to Judge Murphy and Judge Ferguson, you know, 

 4 they don't want to be told they have to do this point/ 

 5 counter point system and they don't -- they don't care for 

 6 it. 

 7 So, and -- and you're an advocate of the word 

 8 "must." But let me tell you, a lot of judges are going to 

 9 be very unhappy if this rule ends up with the word "must." 

10 And that's a real problem, even though there are some case 

11 support for doing that, but there's case support the other 

12 way too. We've -- we've been through a lot of these cases. 

13 So, from the standpoint of yourself with a 

14 national practice -- and forgetting for the moment that you 

15 happen to be defense rather than the plaintiff and that it 

16 applies both ways -- what value do you see to this being a 

17 national rule, you know, with a narrow escape clause in the 

18 point/counter point? 

19 MR. WAYNE MASON: I think any time that you can 

20 have uniformity, it is a benefit. It is a benefit to 

21 clients, not just a convenience to me. The fact that I have 

22 a national practice, I take the burden on of learning the 

23 local rules. It's -- it's not a rule that you change just 

24 as a convenience for me because I happen to travel around 

25 the country and need to be familiar with -- with local rules 

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 1 and the like. But I think there is a real benefit to the 

 2 uniformity of recognition of the way in which we practice. 

 3 Now, I understand the human nature of -- of not 

 4 wanting to be told what to do. And I respect that, 

 5 certainly for a judge to want to have that determination. I 

 6 would -- I would certainly push back with respect to the 

 7 issue of "must" because I do think that that is a

 8 fundamental issue that is very important to the system, and 

 9 that the discretion there is not an area in which I believe 

10 is appropriate for discretion, if in fact the standards that 

11 currently exist and as you've indicated will remain on there 

12 and in place. 

13 And so I do believe, though, the exception that 

14 you referenced does give the opportunity for judges to opt 

15 out if they so believe that it is -- it is not appropriate. 

16 I -- I have read the statements of the judges that have 

17 submitted filings, and I certainly respect Judge Murphy, but 

18 I don't know that there's a human out cry from judges around 

19 the country opposing this. In fact, as I understand it, 

20 there are some that support it. 

21 And so I do support it, but, you know, I 

22 understand that the system works both ways. The most 

23 important thing is, I think, this "must/should" issue. 

24 CHAIRMAN MARK R. KRAVITZ: Judge Colloton? 

25 HON. STEVEN M. COLLOTON: I have a question about

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 1 that "must/should" issue. And you know, prior to the 

 2 stylistic provisions the Rule said, Judgment shall be 

 3 rendered. 

 4 And so my first question is: Did you -- did you 

 5 view that rule -- regardless of what the case law is right 

 6 now, but just from the point of view of the practitioners, 

 7 was that viewed as a mandatory rule or a discretionary rule? 

 8 MR. WAYNE MASON: Mandatory. 

 9 HON. STEVEN M. COLLOTON: Now, when it was viewed

10 as mandatory by practitioners and you ran in scenarios like 

11 you described where judges did not rule, how often did 

12 clients of yours seek mandamus from the Courts of Appeals to 

13 get some kind of action from the District Court? Was that a 

14 practice that was followed? 

15 MR. WAYNE MASON: Not -- not very often. 

16 HON. STEVEN M. COLLOTON: Occasionally? 

17 MR. WAYNE MASON: I would say occasionally. 

18 HON. STEVEN M. COLLOTON: Yeah. Do you foresee 

19 that there would be more mandamus actions if the rule said 

20 "must" then when it used to say "shall?" 

21 MR. WAYNE MASON: I wouldn't support it if I 

22 believe that to be the case. So, no. 

23 HON. STEVEN M. COLLOTON: Why do you think it 

24 would not lead to more? 

25 MR. WAYNE MASON: Well, because I believe that 

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 1 the -- the "must" is a clarification that is the best choice 

 2 of word to go back to the "shall" position that we were in 

 3 before the stylistic change. And I think it -- it provides 

 4 the best Claritin with respect to the issue. 

 5 HON. STEVEN M. COLLOTON: Okay. Thank you. 

 6 CHAIRMAN MARK R. KRAVITZ: Judge Rosenthal. 

 7 HON. LEE H. ROSENTHAL: Quick question. You 

 8 referred to the dumping problem. And we've heard a lot 

 9 about the dumping concern in the statements of undisputed 

10 facts that go on for pages and pages. One of the proposals 

11 that we've been presented with for trying to discipline that 

12 is some kind of numerical limit either in the rule or in a 

13 case-by-case basis that would require the movant to restrict 

14 the number of facts asserted to be both undisputed and 

15 material that entitled the movant to judgment as a matter of 

16 law to a certain number. Pick one, say, five for each claim 

17 on which summary judgment is sought, or each affirmative 

18 defense on which summary judgment is sought. 

19 Do you have a reaction to whether that would be 

20 wise or effective? 

21 MR. WAYNE MASON: I think the difficulty is the 

22 enormous spectrum of cases in which you see and we deal 

23 with. To say five in a complex -- you know, a very complex 

24 multi-party case, multi-issue case, might be difficult, 

25 although it could be deal with with that limitation, unless 

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 1 you have leave of court, and then you can make your pitch as 

 2 to why it could be dealt with that way. 

 3 The other way to deal with it would be not to 

 4 limit it. And under Rule 56(h), make some changes, which I 

 5 believe are appropriate with respect to getting the 

 6 attention and cost shifting that I believe is appropriate to 

 7 consider that might have an additional effect of fielding 

 8 some of that dumping. 

 9 ANTON R. VALUKAS: Let me just go back to being a

10 practitioner. Would you find it -- I mean, just general 

11 experience -- that it would be extremely unlikely that most 

12 practitioners would be looking to mandamus a District Court 

13 Judge on an issue like you've described? 

14 HON. LEE H. ROSENTHAL: Particularly a judge -- 

15 ANTON R. VALUKAS: Yeah. 

16 MR. WAYNE MASON: That is correct. 

17 ANTON R. VALUKAS: And I'm trying to -- 

18 MR. WAYNE MASON: That is correct. And that is 

19 why I answered question as I did. 

20 ANTON R. VALUKAS: I mean, I think that in the 

21 real world the idea is -- what you'll more likely to be 

22 doing is saying to your client is saying, Let's be patient, 

23 I've looked at the docket, there's time here, will get to 

24 it, versus questioning the Court of Appeals. 

25 MR. WAYNE MASON: That is correct. 

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 1 PETER D. KEISLER, ESQ.: Just to follow up on 

 2 Tony's question and Judge Colloton's question. No one here, 

 3 and you included, wants to create these mandamus options. 

 4 They would have to be exercised in a significant degree. 

 5 And you said that you thought that really what we'd be doing 

 6 by adopting "must" is returning to the same world we were in 

 7 when the word was "shall." 

 8 But you also said that -- and that that's where 

 9 the experience existed that you drew from when you said the 

10 judges are sometimes just sitting on these motions, not 

11 acting on them, letting the case go to trial without the 

12 deciding it one way or another. 

13 Doesn't that suggest that at least for purposes 

14 of the problem of judges not deciding summary judgment 

15 motions, what we do in this point probably doesn't matter? 

16 MR. WAYNE MASON: I don't think so. I think that

17 it very much does matter. When you use the term "should," 

18 it is a clear affirmation that I don't have to and it is -- 

19 it is -- you know, as pointed out, I believe, in your -- in 

20 your Committee notes, there was a reference to a "must" -- 

21 and I believe it was 56(g) in terms of "must," and that that 

22 is typically not, you know, followed. I'm not naive enough 

23 to -- to believe that there are times when summary judgments 

24 would still be denied under the "must" standard. But I do 

25 think that from the Committee standpoint and for -- for the 

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 1 benefit of our civil justice system, that it -- the message 

 2 should be that it is non-discretionary. And that that's -- 

 3 and I'll tell you, the other elephant in the room -- and I 

 4 know that it's not what the Committee is clearly talking 

 5 about, but let's not kid ourselves. The state courts are 

 6 looking to the rules that -- that are in place in the 

 7 federal system. And there is already a major problem at the 

 8 state court level in many jurisdictions of judges refusing 

 9 to grant motions. 

10 And so the -- the addition of the clarity there, 

11 I think, is really important. And the trickle down 

12 effect -- or trickle over -- I probably should say chaos -- 

13 trickle over effect, I believe, is an important issue as a 

14 practical matter. 

15 PETER D. KEISLER, ESQ.: So the point is that 

16 using "should" will take the practice that already exists to 

17 some degree, that's bad and make it more common? 

18 MR. WAYNE MASON: I absolutely fear that. That is 

19 one of the reasons I feel so strongly about this.

20 CHAIRMAN MARK R. KRAVITZ: Judge Walker. 

21 HON. VAUGHN R. WALKER: Let me just -- following 

22 up on this discussion, the last sentence of the proposed 

23 Rule 56(a) states that the Court should state on the record 

24 the reasons for granting or denying the motion. So the same 

25 level of imperative implies to the judge, whether he's going 

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 1 to grant the motion or deny it. So why doesn't that provide 

 2 some protection against the situation that you filed and an 

 3 individual judge, simply out of lethargy or inattention, 

 4 sits on the motion and doesn't take action, as opposed to 

 5 the situation that Judge Wood described where you had, 

 6 perhaps, partial summary judgment should be granted on one 

 7 part of the claim? The whole case is going to have to be 

 8 tried anyway, so you might as well try everything. Or the 

 9 situation in which the judge conclude that a trial is not 

10 going to be for the parties any more expensive than going 

11 through the summary judgment practice? Why doesn't this 

12 provide protection -- 

13 MR. WAYNE MASON: Well -- 

14 HON. VAUGHN R. WALKER: -- which you're seeking? 

15 MR. WAYNE MASON: I think that the -- particularly 

16 as it relates to the partial summary judgment issue, that 

17 sometimes we take a select example with respect to that that 

18 it suggests that it's not a big deal to just go to trial and 

19 throw it in with the rest of the case. 

20 Again, in practice, there are significant 

21 ramifications to the granting of the partial summary 

22 judgment, both on potentially narrowing the issues and even 

23 on things like settlement effect, where the case may not 

24 need to be tried. That there are times with the -- the 

25 granting of the partial summary judgment is so significant 

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 1 that it does make a difference and it impacts the case. And 

 2 therefore, I don't think it is -- 

 3 HON. VAUGHN R. WALKER: Well, aren't -- aren't 

 4 there situations where it doesn't really make any

 5 difference? 

 6 MR. WAYNE MASON: There -- there -- 

 7 HON. VAUGHN R. WALKER: The trial is going to be 

 8 the same, whether you adjudicate this particular claim or 

 9 part of the claim or not. 

10 MR. WAYNE MASON: Fair -- fair comment. But I 

11 think that the big picture issue of whether we're going to 

12 communicate the need for clarity in terms of granting 

13 summary judgments overshadows the potential example where 

14 one might think it would be better to send a case to the 

15 jury, and therefore leave it discretionary or to communicate 

16 that there is some discretion there. 

17 CHAIRMAN MARK R. KRAVITZ: You had a point about 

18 cost shifting you wanted to make. 

19 MR. WAYNE MASON: Well, I just -- my point, with 

20 respect to 56(g) and now (h) is that as a practical matter, 

21 I don't see it working in terms of the decisions or the 

22 determinations with respect to the bad faith of lawyers with 

23 respect to what has transpired and therefore ordering 

24 that -- that monies change hands. I think that a more 

25 reasoned approach with respect to whether the counsel have 

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 1 acted in a reasonable or unreasonable way in filing 322, you 

 2 know, 240 of which wee ridiculous or -- or a client -- or a 

 3 lawyer who comes to the court and says, I need more 

 4 discovery and I need to do this, and runs up a significant 

 5 attorney's fees for another party is a real problem and one 

 6 that should be addressed. 

 7 CHAIRMAN MARK R. KRAVITZ: But how would you 

 8 handle that? The person who wins summary judgment gets 

 9 their cost? The person who acts unreasonably gets 

10 sanctioned by some amount of the attorney's fees?

11 MR. WAYNE MASON: Well, I think we need to be 

12 careful about sanction. We still have Rule 11. So I would 

13 not impede on -- on Rule 11, which certainly exists. But it 

14 would be a cost shifting with respect to a determination by 

15 either side that -- that their conduct was inappropriate 

16 with respect to the filing of the motion and the 

17 reasonableness of the positions that were taken, and that 

18 either delay or that they've solved. 

19 CHAIRMAN MARK R. KRAVITZ: Okay. 

20 MR. WAYNE MASON: I would like to briefly address

21 Rule 26. I don't think anyone has this morning. So if I 

22 could -- I apologize. 

23 CHAIRMAN MARK R. KRAVITZ: That's okay. 

24 MR. WAYNE MASON: I would support -- again, as a 

25 practical matter, I would support the extension of the 

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 1 protection with respect work product to the disclosure 

 2 experts. There are often times clients that we deal with on 

 3 a regular basis in which witnesses are not normally 

 4 testifying, not normally regularly testifying on behalf of 

 5 the company, but that there is a need for communication with 

 6 and that they might in this particular case provide some 

 7 expert assistance to the Court and to the jury. And in 

 8 those cases, of all people, those are the ones that should 

 9 need the most benefit of communication with their lawyer. 

10 And the difficulty, as a practical matter again, is that 

11 depending on the jurisdiction of where we are, it's you have 

12 to consider, does the attorney/client privilege apply here? 

13 Does -- the control group test and the subject matter, what 

14 is the situation? 

15 And I think that the protection that you 

16 appropriately apply to drafts and the things that -- that 

17 you have addressed would be appropriate to extend to that 

18 category of expert witnesses. 

19 CHAIRMAN MARK R. KRAVITZ: Go ahead. 

20 PROF. RICHARD L. MARCUS: Could you define that 

21 category, and would you include within that, for example, a 

22 plaintiff's treating physician? 

23 MR. WAYNE MASON: Yes. And I'll tell you -- 

24 PROF. RICHARD L. MARCUS: You would include the 

25 plaintiff's treating physician? 

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 1 MR. WAYNE MASON: Yes, sir. And I'll tell you 

 2 that there is some debate certainly within our organization 

 3 and I think the defense community as to whether this is -- 

 4 what I just communicated to you is the right position. 

 5 Because there is concern about, in a personal injury 

 6 context, plaintiff lawyers having the ability to, you know, 

 7 communicate with treating physician and shield those 

 8 communications in the light of what impact that that might 

 9 have. And this is a balancing test with respect to the 

10 litigation as a whole. 

11 Again, it's not all in the personal injury 

12 context. There are plaintiff corporations that are in 

13 commercial litigation that are seeking and our acting as 

14 plaintiffs in the case. And all things considered -- 

15 considering all things, we felt like it was the -- the 

16 better reasoned approach, even though there are those that 

17 express that concern. 

18 DANIEL C. GIRARD, ESQ.: Would a disclosure expert 

19 have the power to waive the confidentiality of 

20 communications if he or she decided to for whatever reason? 

21 Or would you make it non-waivable in the sense that it's 

22 like an opinion work product in some states? 

23 MR. WAYNE MASON: Well, it comes down to the -- 

24 the issue of -- of privilege or immunity, and the issue of 

25 the analysis of the work product issue in the first place 

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 1 and who has the ability to waive and -- and the application 

 2 of that. And so I'm not sure I can answer that. I'd like 

 3 to think about that. 

 4 DANIEL C. GIRARD, ESQ.: Wouldn't it potentially 

 5 intrude on the state law also? Because right now I think 

 6 that the privilege is usually when it's a work product. And 

 7 when it's opinion work product, I think it's usually 

 8 governed by state law. And if we try go into that realm 

 9 and -- and create a rule, I think it potentially has got 

10 some real problems for us. 

11 MR. WAYNE MASON: I'd like to think through that 

12 some more. Thank you. 

13 CHAIRMAN MARK R. KRAVITZ: Judge Campbell. 

14 HON. DAVID G. CAMPBELL: If I could just follow up 

15 on the point. I guess I'm a little surprised. Let me just 

16 make sure I understand you correctly. Your group, the 

17 Federation of Defense and Corporate Counsel -- if you're on 

18 a personal injury case and you're deposing the plaintiff's 

19 treating physician, who the jury is going to view as perhaps 

20 more objective than any other witness in the trial, and you 

21 learn that that physician met with the plaintiff's lawyers 

22 for three hours before the deposition, you're okay not being 

23 able to inquire into what was said during those three hours? 

24 MR. WAYNE MASON: The short answer is yes. And 

25 the reason briefly is that our experience -- my experience, 

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 1 is that so much time is wasted in depositions with respect 

 2 to asking about questions like that and all the 

 3 communications and things like that that are, as a practical 

 4 matter, often a waste of time. The issue and the ability to 

 5 ask a witness, a treating physician, whether they considered 

 6 this or they -- you know, there's already the exclusion with 

 7 respect to assumptions made and things like that to explore 

 8 their opinions and things, or it's still there and right is 

 9 there. 

10 It's a very fair -- it's part of this debate I 

11 mentioned to you about the questions that have been posed by 

12 some. And there's not total agreement with respect to this. 

13 That is a very real example. But given the -- given the 

14 nature of in-house witnesses and employees and corporations 

15 that often times need to be worked with, dealt with in terms 

16 of the system and presented -- and not only in-house folks, 

17 but others that might be a professor in the light that might 

18 not normally give testimony like we believe that is 

19 appropriate. 

20 PROF. RICHARD L. MARCUS: Wouldn't the 

21 professor -- the professor is going to be testifying as a 

22 witness? 

23 MR. WAYNE MASON: Uh-huh. 

24 PROF. RICHARD L. MARCUS: So would be specially 

25 retained and covered by our rule -- 

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 1 MR. WAYNE MASON: Well, in that situation, you're

 2 right. Yeah. 

 3 PROF. RICHARD L. MARCUS: You mentioned the three

 4 exceptions. You said, I think, that they seem to you 

 5 adequate to permit inquiry of the plaintiff's doctor in your 

 6 example. 

 7 MR. WAYNE MASON: Yes. 

 8 PROF. RICHARD L. MARCUS: So the three exceptions

 9 seem to you satisfactory, where generally the rule is 

10 written as proposed. 

11 MR. WAYNE MASON: As a practically matter, trying

12 lawsuits to a jury, I -- you know, it's got to be pretty 

13 egregious. And -- and the number of times of really making 

14 a difference in front of the jury, of the plaintiff's lawyer 

15 talking, and what was said and when, I think, that in my 

16 personal experience, that is often times not the best use of 

17 the jury's time, and not the best judgment on the part of a 

18 skilled trial lawyer. 

19 PROF. RICHARD L. MARCUS: Oh, I'm sorry. I was 

20 thinking more general -- I was thinking more generally if -- 

21 asked whether I was correct in understanding that you regard 

22 the three exceptions to the inquiry about communications 

23 generally to be satisfactory to permit adequate inquiry? 

24 MR. WAYNE MASON: Yes. 

25 CHAIRMAN MARK R. KRAVITZ: Thank you very much. 

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 1 MR. WAYNE MASON: Thank you. 

 2 CHAIRMAN MARK R. KRAVITZ: We very much appreciate 

 3 your time and your comments. 

 4 I think at this point we'll take a 15-minute 

 5 break to 10:30 when we will resume with Mr. Martin. 

 6 (OFF THE RECORD, 10:16 to 10:33 A.M.) 

 7 CHAIRMAN MARK R. KRAVITZ: Mr. Martin. Thanks so

 8 much for your willingness to appear before us today and 

 9 share your thoughts with us. 

10 JOHN H. MARTIN, ESQ.: Thank you very much, Your 

11 Honor. And I'm honored and privileged to be here. My name 

12 is John Martin. I have practiced civil litigation primarily 

13 on the defense side of the docket with Thompson and Knight 

14 in Dallas since 1974. I've actually practiced with the same 

15 law firm for all those years, which is becoming something of 

16 a rarity these days. 

17 I'm here today to speak about both rules, and I 

18 will tell you a little bit about my practice and why I think 

19 I might have something hopefully of value to offer to you. 

20 My practice has involved, over the years, a lot of mass tort 

21 defense. More recently some legal malpractice defense and 

22 some general commercial litigation. 

23 The mass tort defense has been involved a whole 

24 lot with mass air disaster cases. I've been privileged to 

25 represent several major U.S. airlines in mass disaster 

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 1 cases. And those -- those tend to wind up with at least 

 2 some component in Federal Court. And the way that normally 

 3 shakes out is we'll wind up with some state court cases, 

 4 we'll wind up with a Federal MDL, the case is filed in 

 5 multiple districts, multiple jurisdictions around the 

 6 country, consolidated MDL for discovery purposes. 

 7 And the reason I think that's important for some 

 8 of these discussions is that perhaps more than some lawyers, 

 9 I've seen a crying need for standardization and uniformity 

10 in some of these -- some of these practices, both in the 

11 discovery area and in the -- in the Rule 56 summary judgment 

12 area. 

13 And this is particularly true in these air crash 

14 cases because it is fairly common -- can't always get this 

15 done, but it's fairly common to stipulate, even in the state 

16 court cases, where depositions are being taken that apply in 

17 all the cases to go by the federal rules with regard to 

18 times when they submit any kind of objections and things of 

19 that nature. Not always. That'd have to be done by 

20 agreement. Nobody can make anybody do it. 

21 But -- but for that reason, I want to spend a 

22 few minutes following up on some of the things Mr. Mason 

23 talked about with regard to Rule 26, and then I'll -- then 

24 I'll conclude with some remarks about Rule 56. 

25 CHAIRMAN MARK R. KRAVITZ: That'd be great. 

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 1 JOHN H. MARTIN, ESQ.: I think it is -- well, I 

 2 read with great interest Judge Kravitz's letter to Judge 

 3 Rosenthal December the 9th. There are apparently some 

 4 procedural scholars with concern that the rule is

 5 effectively recognizing that we actually have expert 

 6 witnesses who act as advocates. Well, for those of us who 

 7 are out there in the trenches, that is -- that is certainly 

 8 not a surprise. 

 9 CHAIRMAN MARK R. KRAVITZ: It came as a surprise 

10 to the Academy. 

11 JOHN H. MARTIN, ESQ.: I don't know. But one -- 

12 one point I want to make about this is that the -- yes, 

13 there are professional expert witnesses. Some people call 

14 them hired guns. Some people call them other things that I 

15 won't mention here. But -- and some of those folks are 

16 good, honest, expert witnesses, do a great job. And others, 

17 perhaps, are questionable. But this -- this rule really 

18 isn't going to impact those witnesses very much. Because as 

19 some of the comments have pointed out, they have figured out 

20 long ago ways to wire around this because they don't do 

21 draft reports. If they do, they do them in their computer 

22 and you're never going see the draft. They don't keep notes 

23 of their conversations with lawyers. 

24 The problems come up when you hire a real, 

25 honest to goodness expert who may be the leading expert in 

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 1 that particular field of science or whatever other expertise 

 2 you're talking about who's never testified before, who's 

 3 very uncomfortable with the process, who's not used to 

 4 dealing with lawyers, who has no idea how to write a Rule 26 

 5 report, who has no idea what this process is all about. And 

 6 it's just essential whether you're representing the 

 7 plaintiff or the defendant to be able to have some candid 

 8 education of that witness so that they can do a better job. 

 9 And what I'm leading up to is this: I think 

10 this rule will have a very positive effect on the system, of 

11 making it more likely that lawyers will actually use people 

12 who are really the leaders in their field. And that's 

13 the -- that's really the main reason that convinced me to 

14 support this rule. I'm one who has asked a lot of these 

15 questions of witnesses over the years. 

16 CHAIRMAN MARK R. KRAVITZ: And have you unearthed

17 the answer. 

18 JOHN H. MARTIN, ESQ.: One time I got a draft 

19 report that just had a real nugget in it. It made the case 

20 go away. But that's one time in 34 years. And that's -- 

21 that's probably fairly typical as to how often it happens 

22 because it just doesn't happen very often. It was a witness 

23 in Boston, Massachusetts. I won't take up the time with the 

24 details of that. 

25 Like Mr. Mason, I also support -- and there has 

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 1 been some controversy about this on the defense side of the 

 2 bar, but I also support extending work product protection to 

 3 so-called disclosure experts. And I'm willing to give up 

 4 the right to cross examine plaintiff's treating doctors 

 5 about conversations they've had with the plaintiff's lawyer. 

 6 Because in my experience, you don't get a lot of information 

 7 there anyway, so it's largely a waste of time. 

 8 To be sure that my communications with company 

 9 employees who may be giving expert opinion testimony are 

10 protected. Because you get into the situation where that 

11 conversation might be protected under one state's law of 

12 attorney/client privilege and not in another state, 

13 depending on which tests they adopt. So I feel -- I feel 

14 pretty strongly that -- that that protection is needed and 

15 will -- and will benefit the system. 

16 CHAIRMAN MARK R. KRAVITZ: Professor Marcus? 

17 PROF. RICHARD L. MARCUS: Sorry to break in 

18 here -- 

19 JOHN H. MARTIN, ESQ.: Sure. 

20 PROF. RICHARD L. MARCUS: -- but could I follow up 

21 on what you just -- I think what you just said? 

22 Do you find that this need to talk to the 

23 company's employees about the case is limited to or 

24 particularly true with those who are partly going to give 

25 some expert testimony? 

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 1 JOHN H. MARTIN, ESQ.: Yes. 

 2 PROF. RICHARD L. MARCUS: Why? 

 3 JOHN H. MARTIN, ESQ.: Again, because very often 

 4 you're talking to people who have never seen a courtroom 

 5 before, don't know what a deposition is, and who really need 

 6 some counseling about what this is all the about.

 7 PROF. RICHARD L. MARCUS: Well, the thing I'm 

 8 trying to get at is that it struck me as possible that the 

 9 latitude in talking to the company's employees that you 

10 regard as important with those people who don't normally 

11 deal with litigation would be true of people who are not 

12 going to give expert testimony as well as with people who 

13 are going to give expert testimony. Am I wrong in that? 

14 JOHN H. MARTIN, ESQ.: That may be true. But this 

15 rule is talking about experts. And I don't see how this 

16 rule could reach non-expert testimony. 

17 CHAIRMAN MARK R. KRAVITZ: So what you're really 

18 concerned about is the -- obviously you're willing to extend 

19 it to treating physicians. But the company person who is 

20 charge of the water quality plant who's going to testify as 

21 an expert about how -- some process that occurs there, you 

22 want to be able to have a frank discussion with that person 

23 and not have that disclosed, except insofar as assumptions 

24 and facts? 

25 JOHN H. MARTIN, ESQ.: That's -- that's right. 

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 1 Now, Texas has gone through -- we went through a period 

 2 where we were a control group state. And then the Supreme 

 3 Court amended the rules of evidence, and -- and a very clear 

 4 comment in the rule turned us into a subject matter study, 

 5 which we always thought we were before the -- as someone 

 6 said, before the case came out. 

 7 So I -- I've experienced it both ways. And so 

 8 now we're a subject matter state, so it's okay. But 

 9 there's -- Illinois, for example, I know, is still -- I 

10 think, is still a control group state. 

11 HON. DAVID G. CAMPBELL: Mark, may I ask 

12 something? 

13 CHAIRMAN MARK R. KRAVITZ: Yes. I'm sorry. 

14 HON. DAVID G. CAMPBELL: I have a follow up 

15 question. 

16 As we work through the process of deciding 

17 whether or not that protection should be extended to 

18 non-report experts, I think our primary concern is about the 

19 non-report experts who aren't affiliated with you and your 

20 firm and the treating physician. A law enforcement officer 

21 may give opinions about what's reasonable conduct in a civil 

22 rights case where somebody's claiming excessive force. 

23 And we were worried about creating a situation 

24 where lawyers sort of have this confidential opportunity to 

25 talk with people who are independent parties, as much fact 

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 1 witnesses, perhaps, as experts, and whether we give lawyers 

 2 too much influence over people who aught not be influenced 

 3 in that way. 

 4 We couldn't figure out a way to apply it to 

 5 non-reporting employee experts and not apply it to 

 6 non-report treating physicians or law enforcement officers. 

 7 Have you given any thought to that? 

 8 JOHN H. MARTIN, ESQ.: Yes, and I cannot figure a

 9 way to draw that line either. I view it as something -- as 

10 a defense advocate, I view it as something of a trade off. 

11 Yes, I would like to be able to ask the plaintiff's doctor 

12 those questions, but to me that's far less important than 

13 the ability to protect communications with employees who are 

14 being asked questions as an expert witness. If there was a 

15 way to draw that line, I would probably be in favor of it. 

16 I thought this through and I think -- I think I agree with 

17 you that there's no good way to -- to distinguish between 

18 the two types of non-report or disclosure only experts. 

19 I -- I agree there's some concern about a 

20 lawyers' ability to influence a police officer, a treating 

21 doctor or somebody like that. I think these exceptions, the 

22 three exceptions, do give you some ability to ask those 

23 types of witnesses where did they get the facts they're 

24 relying on. For example, you can ask in a deposition, What 

25 is your understanding of the facts? And if they're totally 

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 1 off base on the facts, I think you could then discover the 

 2 source as an exception. The way I read it, I think you 

 3 could ask for the source of those facts. And it might come 

 4 out in that way. So that's -- that's the way I would deal 

 5 with it. 

 6 Another -- the last point I was going to make on 

 7 experts is -- and I don't know if this was deliberate or -- 

 8 or what, but very often experts, particularly if it's an 

 9 engineering consulting firm or somebody like that, there's a 

10 need to communicate with their staff members who are doing 

11 some of the basic work. Accounting firms might have an 

12 underling doing some of the basic number punching and that 

13 sort of thing, and those communications with the staff 

14 members aught to be just as -- just as protected as with -- 

15 as with the primary expert. 

16 CHAIRMAN MARK R. KRAVITZ: So what we've been told 

17 is actually that's how you communicate with the testifying 

18 expert, because the staff member will never be deposed. And 

19 so you want to tell the testifying expert to do something, 

20 you tell the staff and they tell the testifying expert, and 

21 so there's no lawyer -- direct lawyer communication. Am I 

22 wrong on that? 

23 JOHN H. MARTIN, ESQ.: Well, I've had staff 

24 members deposed. 

25 CHAIRMAN MARK R. KRAVITZ: Okay. All right. You

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 1 have. 

 2 JOHN H. MARTIN, ESQ.: And I'll say that's not --

 3 that's not my practice. 

 4 CHAIRMAN MARK R. KRAVITZ: They're deposed because 

 5 they are doing -- crunching numbers; doing something that is 

 6 empirical to the -- to the testifying experts. 

 7 JOHN H. MARTIN, ESQ.: I've had cases where the 

 8 staff person was deposed and was -- was asked about all 

 9 communications the staff person had with the lawyer, all 

10 communication the staff person had with the testifier, and 

11 that sort of thing. So I just think they aught to be 

12 protected. Each -- each one of them should be protected. 

13 Okay. Finally on Rule 56, I don't want to just 

14 repeat what others have said. I do support the use of the 

15 word "must" for the reasons that others have stated. 

16 I will also state categorically I do not, I have 

17 not, and I will never file a motion for summary judgment in 

18 every case. I think this -- I can't speak to what happens 

19 in employment cases. I'm going to go back and ask my 

20 partners who does employment law what their practice is. I 

21 would be shocked if they filed summary judgment motions in 

22 every case. But in my practice, that's absolutely not the 

23 case. 

24 One of the prior speakers mentioned credibility 

25 with the courts. I practice before the same courts quite a 

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 1 bit. I value my credibility to whatever extent I may have 

 2 any, and I certainly don't file motions for summary judgment 

 3 unless I think there's merit to them. 

 4 On the point/counter point, I have -- I have 

 5 practiced in both types of jurisdictions and I -- I favor 

 6 the -- I favor the point/counter point system, and I have 

 7 found that it works well. We had it at one time in the 

 8 Northern District of Texas, but we don't anymore. I'm about 

 9 to file a motion for summary judgment and I think I'm going 

10 to numerically list the undisputed facts of the motion 

11 because but I think it helps the Court focus on the issues. 

12 I think it makes lawyers think through the motion for 

13 summary judgement. 

14 As Mr. Mason said, I've had the same experience. 

15 When we get analytical about it, I know I have decided not 

16 to file motions for summary judgment. I think it makes 

17 lawyers do a better job in filing a motion. And in my 

18 experience, it -- it saves costs. I have not -- I've not 

19 had any experience with any of these 300 undisputed facts 

20 type motions. I've never seen one. I've certainly never 

21 filed one. I cannot conceived of filing one. I cannot 

22 conceive of filing a summary judgement motion that has more 

23 than a handful of undisputed facts that were material in 

24 support of a motion. 

25 CHAIRMAN MARK R. KRAVITZ: Well, that's what I --

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 1 and I -- maybe they don't get filed in an aircraft crash 

 2 case. I don't know. I haven't ever had one. But, I mean, 

 3 in a case like that, with some sort of catastrophic huge 

 4 thing, what do they look like? I mean, we've been told that 

 5 in some of those cases that it's a thousand undisputed facts 

 6 because, of course, the case is so big. Is that not true? 

 7 JOHN H. MARTIN, ESQ.: Under my -- and I'll give 

 8 you a concrete example. 

 9 CHAIRMAN MARK R. KRAVITZ: Yeah, a concrete 

10 example. 

11 JOHN H. MARTIN, ESQ.: I rooted to this without 

12 naming the case in -- in my letter. But I was privileged to 

13 represent American Airlines in the litigation resulting out 

14 of the crash of Flight 1420 in Little Rock, Arkansas, 

15 June 1, 1999. And typically we had -- we had federal court 

16 multi-district litigation in Arkansas, we had state court 

17 cases in Texas that could not be moved and transferred, and 

18 I believe a few stray state court cases somewhere else, if 

19 I'm recalling correctly. But the real focus was on the MDL 

20 in Little Rock. 

21 After a certain amount -- after the MTSB 

22 investigation was completed and after a certain amount of 

23 discovery, we -- we not only agreed not to contest 

24 liability, we admitted that the pilots of the airplane 

25 committed certain acts of negligence which caused the crash. 

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 1 We stipulated that in open court and we filed a written 

 2 stipulation. Our experts admitted to that in their 

 3 deposition. We were -- we were willing to give any -- well, 

 4 the judge set up a procedure where the Warsaw Convention 

 5 cases where there was no punitive issue. We tried first on 

 6 damages only. Plaintiffs who were willing to waive punitive 

 7 got damages only trials. But as always happens in these 

 8 things, there were some hold outs. And there was a fairly 

 9 large number of hold outs that resulted in about two years 

10 of very intensive discovery on whether this was a punitive 

11 damages case. 

12 We filed a motion for summary judgment on very, 

13 very narrow grounds in order to try to eliminate the 

14 punitive damages issue. And the motion for summary judgment 

15 boiled down to this: That the -- that the sole producing or 

16 proximate cause of the crash was the pilot's failure to arm 

17 or manually deploy the spoilers, which are the little flap 

18 thingies that pop up when the plane lands that destroys lift 

19 on the plane and plants the wheels in the concrete so it 

20 doesn't keep going. And this was a wet runway that night. 

21 It had been raining. 

22 And our -- our expert tests, MTSB's expert tests 

23 and the plaintiff's expert tests all showed that if they had 

24 done that, the plane would have stayed on the runway. The 

25 plaintiff's theory was that the pilots willfully and 

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 1 knowingly flew into a dangerous storm. And our argument 

 2 was, well, based on the undisputed evidence of the three 

 3 sets of experts -- plaintiffs, defense, and MTSB -- that was 

 4 not causative in the accident because they landed the plane, 

 5 they got it on the ground, they would have stayed on the 

 6 runway and nobody would have been hurt if they had simply 

 7 pulled this handle back. And nobody could seriously contend 

 8 that was gross negligence. 

 9 We filed that motion. Discovery went on and on 

10 and on. It sat there for I think a year and-a-half. I 

11 could be off on the months. I'm remembering back several 

12 years now. And so it was a very simple motion. Just as 

13 I've stated in a few words here, it was no more complicated 

14 than that. Now, I'm sure there was a recitation of the 

15 history of the flight, but the undisputed facts were just -- 

16 just what I -- what I stated. 

17 The end result of it was, unfortunately, the MDL 

18 judge died, a new MDL judge was appointed. He immediately 

19 granted the motion, that went up on appeal and was affirmed 

20 unanimously by the Eighth Circuit. 

21 CHAIRMAN MARK R. KRAVITZ: Professor Marcus. 

22 PROF. RICHARD L. MARCUS: Using that example, I'm

23 assuming this was back when the rule said "shall grant" the 

24 motion. 

25 JOHN H. MARTIN, ESQ.: Yes, sir. 

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 1 PROF. RICHARD L. MARCUS: And if it is true that 

 2 you regarded that as the same as "must" how should a rule 

 3 that says "must" operate in a situation like the one that 

 4 you just described? 

 5 JOHN H. MARTIN, ESQ.: I don't have a good answer

 6 to how you make a judge rule on any motion. I don't think 

 7 there's any way to do that. But I -- but I feel strongly 

 8 that the -- the softening of the rule, which I believe the 

 9 style change has done by changing it to "should" might send 

10 a message to some judges that they've got a lot more 

11 discretion on summary judgments than they think they do. 

12 That's -- that's my biggest concern about it. 

13 CHAIRMAN MARK R. KRAVITZ: Judge Walker. 

14 HON. VAUGHN R. WALKER: Thank you. You said that

15 you're about ready to file a summary judgement motion in a 

16 district that does not require the point/counter point, but 

17 you're going to use that as a template to organize your 

18 motion. So I assume you see no obstacle using that approach 

19 where you think it's appropriate. 

20 JOHN H. MARTIN, ESQ.: Correct. 

21 HON. VAUGHN R. WALKER: And so the absence of a 

22 requirement in the federal rules would not prohibit you from 

23 invoking that tool when you thought it helpful? 

24 JOHN H. MARTIN, ESQ.: That's true. However, if I 

25 may continue. I do believe standardization is important. 

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 1 Many districts have this rule, I believe. I've seen a 

 2 number -- over half -- I may be wrong about this, but over 

 3 than half the districts have the rule. I've seen a lot of 

 4 the comments that have been submitted in districts that feel 

 5 like it works very well. 

 6 All I can tell you is I've practiced in both -- 

 7 both types of jurisdictions and I think it works very well. 

 8 CHAIRMAN MARK R. KRAVITZ: Let me just -- 

 9 Professor Gensler, I just follow up on that point. And I 

10 think it would be helpful to the Committee to understand why 

11 you think standardization or uniformity is important 

12 because -- is it because you can't find out what the judges 

13 want or is it that it's too disruptive to sort of have -- 

14 when you file a motion in one court, do it one way, then 

15 another way? Or is it because we have a unitary federal 

16 system and this is an important motion and it aught to be 

17 governed by the same procedure? 

18 JOHN H. MARTIN, ESQ.: I think the answer is all 

19 of the above. I think -- I think more of us have national 

20 practices today. And really the only national practice I 

21 have is in this airline area. It's -- it's important that 

22 procedures be standardized from one -- from one district to 

23 the next. It is conceivable in some of these air crash 

24 cases that you could wind up without an MDL if there's only 

25 a few cases. And you'd like to have the ability to file the 

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 1 same motion that looks the same in New Jersey and in 

 2 California, and in Idaho, or wherever the -- wherever the 

 3 cases are pending. 

 4 CHAIRMAN MARK R. KRAVITZ: Undoubtedly true. I 

 5 guess the push back that we get is that there -- if you go 

 6 to trial in different jurisdictions, there are going to be 

 7 different rules. So for example, Judge Campbell will limit 

 8 you in terms of the amount of time that you'll be able to 

 9 do it. I don't do that. And you have to find out those 

10 differences. Maybe some judge allows -- makes you stand at 

11 a podium and another judge, like myself, lets you roam 

12 whatever you want to roam. 

13 And so there are inevitably -- some judges have 

14 Rule 16 conferences in every case. Other judges only have 

15 it if the lawyers ask for it. Some judges always -- like 

16 myself, I always have oral arguments. Some judges never 

17 have oral arguments. And there's an infinite variety. And 

18 I guess, what -- what is it about summary judgment that's so 

19 important that you think that it should perhaps be uniform? 

20 JOHN H. MARTIN, ESQ.: Well, I -- I would like to

21 see standardization in some of those other things too, but 

22 that's beyond -- that's beyond what we're here to talk 

23 about. But in -- in general, I'm just a believer in more 

24 standardization of procedural practice throughout this 

25 unitary federal court system. But I think particularly in 

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 1 summary judgement situations where you might be in a 

 2 situation where you're filing the identical motion in 

 3 multiple cases and all on the same incident in multiple 

 4 courts. I think that's -- that's one good reason there. 

 5 CHAIRMAN MARK R. KRAVITZ: Right. 

 6 Professor Gensler? 

 7 PROF. STEVEN S. GENSLER: You just answered my 

 8 question. 

 9 CHAIRMAN MARK R. KRAVITZ: Okay. Very good. 

10 I'm sorry. Judge Wood? 

11 HON. DIANE WOOD: I have not seen any evidence to

12 suggest that reversal rates from grants of summary judgment 

13 are particularly different in -- when it comes to districts 

14 that use point/counter point versus districts that have less 

15 structured processes. But one answer to the question, if 

16 the evidence was there, if we get more accurate or better 

17 results from one system or another, then that's a system we 

18 gravitate toward. 

19 And just I wondered if you, either from your own 

20 experience or that of your partners, have seen any 

21 difference in the reversal orders? 

22 JOHN H. MARTIN, ESQ.: I haven't studied that. I

23 really can't say. Anecdotally I don't really have an 

24 opinion as to whether the reversal rate is any different or 

25 not. I just don't have any sense for that. 

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 1 CHAIRMAN MARK R. KRAVITZ: Judge Huff? 

 2 HON. MARILYN HUFF: On the Rule 26 issue, this is

 3 a discovery only proposed rule and cannot affect trial and 

 4 cannot become a privilege without going through a different 

 5 process. Do you have any concern, as a trial lawyer, that 

 6 if this is adopted that then some trial judge at trial could 

 7 permit inquiry into the items that were not the subject of 

 8 discovery? 

 9 JOHN H. MARTIN, ESQ.: I've seen the Committee 

10 note that suggests that is this should be the practic at 

11 trial as well as during the discovery. And I would think 

12 that most judges would -- would honor that. I don't do this 

13 as creative privilege. I went to the University of Texas 

14 Law School and had Professor Bernie Ward for Civil 

15 Procedure. I know, I see some heads nodding here for the 

16 late Professor Ward. He was one of my favorites. And he 

17 hammered into us that work product was not a privilege, that 

18 it was immunity from discovery. And so I don't think by 

19 enacting this work product community or doctrine extending 

20 the Hickman versus Taylor work product doctrine into this 

21 area creates any privilege. So I don't -- I don't view it 

22 as a problem. 

23 CHAIRMAN MARK R. KRAVITZ: I guess the flip side 

24 of that would be, how likely would you think it'd be -- it 

25 would be that a lawyer, having been barred from discovery, 

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 1 is likely to stand up during the first of trial and then 

 2 say, And tell me about your first conversation with 

 3 Mr. Martin. 

 4 JOHN H. MARTIN, ESQ.: I think know some lawyers 

 5 would do that. And if I was concerned in advice of trial 

 6 that my opponent was going to do that, I would file a motion 

 7 in limine and -- and -- 

 8 CHAIRMAN MARK R. KRAVITZ: Try to -- 

 9 JOHN H. MARTIN, ESQ.: -- try to -- try to nip it

10 in the bud before it came up. 

11 CHAIRMAN MARK R. KRAVITZ: Judge Campbell and then 

12 Judge Varner. 

13 HON. DAVID G. CAMPBELL: But when you're in the 

14 stage of hiring experts and them preparing their reports and 

15 haven't gotten to the motion in limine, are you going to 

16 hire a second set of consulting experts because even though 

17 it may not come out during discovery, it might come out 

18 during trial and it's better to protect those 

19 communications? 

20 JOHN H. MARTIN, ESQ.: I have -- in my experience

21 I have on rare occasions hired consultants that I did not 

22 anticipate using at trial. And -- but my reasons for doing 

23 that would probably continue whether this rule is adopted or 

24 not. Because frankly, there's some people that are real 

25 smart but aren't great witnesses. And -- and I have hired 

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 1 some of those people to help me learn the subject matter, to 

 2 help me -- to help me find other witnesses and that sort of 

 3 thing. 

 4 HON. DAVID G. CAMPBELL: If I can, then let me ask 

 5 the question a little differently. When you're preparing 

 6 the expert or working with the expert, because the party 

 7 trial may inquire into what you did with the draft report or 

 8 how many drafts were created, are going to follow the old 

 9 practice if this rule is adopted and say, Don't create draft 

10 reports; don't take notes until I say because they can't ask 

11 about them in a deposition but they may ask you at trial. 

12 JOHN H. MARTIN, ESQ.: No. No. I would -- I 

13 would go in -- if this rule is adopted as it is, I would 

14 operate under the assumption that they're not going to be 

15 able to go onto trial. 

16 HON. DAVID G. CAMPBELL: How about if that comment 

17 was dropped out of our Committee note? 

18 JOHN H. MARTIN, ESQ.: That would -- that would 

19 give me some concern if you dropped it out there now that 

20 it's -- if it had never been there in the first place, I 

21 don't think I would worry about it. But -- but now that 

22 it's in there, if you drop it out, you know what somebody is 

23 going to argue. 

24 CHAIRMAN MARK R. KRAVITZ: You know those rules on 

25 statutory construction. 

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 1 JOHN H. MARTIN, ESQ.: Well -- 

 2 CHAIRMAN MARK R. KRAVITZ: It wasn't necessary. 

 3 JOHN H. MARTIN, ESQ.: Right. Right. 

 4 CHILTON DAVIS VARNER, ESC.: One follow up 

 5 question, Mr. Martin. This proposed amendment builds on 

 6 work product. And that's not a new concept. It's been a 

 7 around a long time as a protection or immunity against 

 8 discovery. In your practice before this amendment was ever 

 9 proposed, do you run into trouble at trial with work product 

10 claims that have been asserted in discovery being evolved 

11 into the trial? 

12 JOHN H. MARTIN, ESQ.: I cannot think of an 

13 instance where that's happened, Ms. Varner. It's possible. 

14 Thirty-four years is a long time, but I can't think of it. 

15 CHAIRMAN MARK R. KRAVITZ: I thank you, sir. 

16 JOHN H. MARTIN, ESQ.: If I could make one final 

17 comment. I think that the -- the study that the American 

18 College and the ALS have done on our civil justice system is 

19 vitally important to this process. I solute Ms. Varner and 

20 the other folks. Mr. Beck, I see, had to leave. I just -- 

21 I think we should all really be sobered by that report with 

22 the fact that such a hight percentage of cases will be 

23 resolved based not on the merits of the case. And I think 

24 the rule making process, as I said in my letter, is -- is 

25 just critical to -- to trying to lower the cost of 

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 1 litigation, to trying to make the money that is spent on 

 2 litigation spent on what's important and not wasted on 

 3 what's not important. 

 4 CHAIRMAN MARK R. KRAVITZ: And you'll be heartened 

 5 to know that Judge Rosenthal is one step ahead of you and 

 6 she had the American College folks and the people from the 

 7 Institute from Colorado speak to the Standing Committee 

 8 yesterday about that. We had a great presentation, a lot of 

 9 ideas. And we're hoping from the civil rules and -- to look 

10 carefully at all those things at a conference we are 

11 planning for the Spring of 2010. So stay tuned and stay 

12 involved. And we thank you very much, sir, for your 

13 comments. 

14 JOHN H. MARTIN, ESQ.: Thank you very much. 

15 CHAIRMAN MARK R. KRAVITZ: Mr. Pickle. 

16 Now, I am intrigued by the fact that you're from 

17 Humble, Texas because I have told that there's -- there's 

18 nothing humble about it. 

19 G. EDWARD PICKLE, ESQ.: Humble is -- you have to

20 work on the pronunciation. It's Humble. 

21 Now those of us that are from Humble know that 

22 it is also the home of a small oil and gas company that 

23 started there that eventually became known as Exxon. So 

24 it's a birth place. 

25 HON. LEE H. ROSENTHAL: But it's origins were 

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 1 humble. 

 2 G. EDWARD PICKLE, ESQ.: Very humble. 

 3 Ladies and gentlemen, Your Honors, good morning. 

 4 I'm Ed Pickle. I'm Senior Government Affairs Counsel with 

 5 Shell Oil Company in Houston. I have been with Shell now 

 6 for 23 years, used to head their litigation department. Was 

 7 initially hired in when Joe Morris, former Federal Judge, 

 8 was general counsel and was creating an in-house litigation 

 9 department. So had the privilege of handling cases on a 

10 first chair basis literally all over the country. And so 

11 it's been a great experience to be able to do that and it's 

12 almost exclusively been in federal court, thanks to the 

13 diversity jurisdiction in most of the cases we handle. 

14 Besides the litigation experience, I have now, 

15 for the last several years, managed government affairs 

16 specifically focused on civil justice issues. I'm the past 

17 Chairman of the Product Liability Advisory Council, I'm 

18 vice-president of the International Association of Defense 

19 Counsel, on the boards of most of the major national groups 

20 that are devoted to civil justice activities that are trying 

21 to bring greater fairness, greater efficiency and greater 

22 effectiveness to our civil justice system. 

23 If you'll give me a moment just for a couple of 

24 observations. When we think of foreign nations, we tend to 

25 identify those nations at least in a mind on the basis of 

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 1 culture or tradition; the British Beefeaters, French 

 2 fashion, the Leaning Tower of Pissa. For so long the 

 3 initial image that came to mind of foreigners when they 

 4 thought of the United States was opportunity, freedom, 

 5 entrepreneurship, industry. What we find now -- and I find 

 6 this especially in working for an international company -- 

 7 the initial impression that I run into from foreign business 

 8 people no longer thinks of those virtues, those qualities. 

 9 The first thought is: Why do you people sue each over every 

10 everything all the time? It is our litigiousness, it is our 

11 uncertainty that has become an identifying concept for us 

12 that we are perceived, unfortunately, and with some 

13 justification, in many foreign locations as a country of the 

14 lawyers, by the lawyers, and for the lawyers. 

15 The result has been and an exponential increase 

16 in the cost of litigation. We cannot compete on a global 

17 scale in a global economy if our civil justice system, our 

18 dispute resolution system is at least not competitive with 

19 other democratic developed nations. Presently it is not. 

20 As a percentage of gross domestic product, the cost of our 

21 tort system is over twice that of the United Kingdom or of 

22 Japan. It's bad enough that we are markedly more

23 expensively, but we're markedly less efficient. When 

24 somewhere between 30 and 40 percent of every dollar spent in 

25 litigation ultimately goes to compensate the claimant, 

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 1 something is broken within that system. 

 2 I don't have to tell you this. I mean, you live 

 3 with it day in and day out, whether you're sitting on the 

 4 bench or whether you're on this side of lectern. The effect 

 5 is palpable. We have reached a stage where only government, 

 6 large corporations, and consortiums of well heeled 

 7 plaintiffs counsel can afford to take a major case to trial. 

 8 We are pricing ourselves out of reach of the traditional 

 9 litigant, the traditional plaintiff. And I say this both as 

10 a plaintiff and as a defendant. 

11 We have to look for what we can do to bring 

12 greater cost rationality, greater common sense into how we 

13 are approaching litigation. Summary Judgment Rule 56, to 

14 me, is one of the most effective tools for managing costs 

15 within litigation. And to that end, I would respectfully 

16 submit to you that the rule, in terms of how it is to be 

17 applied, when summary judgment is to be granted, that there 

18 is no room for discretion. That if there is no genuine 

19 issue of material fact, summary judgment must be granted. 

20 That was the rule for 70 years. Certainly that is the 

21 position I have taken in every summary judgment motion that 

22 I had ever filed up until the stylistic changes in 2007. It 

23 was mandatory. 

24 The cases are legion, expressing the meaning of 

25 the word "shall." Whether you go to Black's Law Dictionary 

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 1 or look at what the U.S. Supreme Court has said, it is a 

 2 mandatory, non-discretionary direction to act. That is what 

 3 the rule historically has been. 

 4 Now, as several questioners have noted today and 

 5 several commentators have stated, the fact that it has been 

 6 mandatory for some 70 years did not necessarily mean that 

 7 every judge followed that mandate. I am deeply concerned 

 8 that if we create what is only its face and according to the 

 9 Committee note, a discretionary standard, those judges that 

10 have some antipathy toward summary judgment, whether it is 

11 because they are over worked, whether they just don't like 

12 the practice, if we create that discretionary exception, you 

13 can drive a truck through it. 

14 And those judges that had heretofore at least 

15 thought twice about whether or not they should grant or not 

16 grant a summary judgment are going to see that discretionary 

17 option as a total way out. And I would respectfully urge 

18 that we cannot afford to make it that easy. 

19 CHAIRMAN MARK R. KRAVITZ: Have you -- in the last 

20 year plus since the style changed, have you had any 

21 experience with judges doing what you fear? 

22 G. EDWARD PICKLE, ESQ.: In all candour, because 

23 the style changes are so recent, have just been out for a 

24 year, I find that most practitioners, at least from the 

25 judges I have dealt with, none have mentioned it. It's 

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 1 always still treated -- at least in mind it has been treated 

 2 as a intention that the standard would be mandatory. I just 

 3 don't think people have caught up with the stylistic 

 4 changes. 

 5 And with respect to -- I know many people on 

 6 this Committee were involved in that style project. I just 

 7 don't see how we can transform the word "shall" into 

 8 "should." That at least in every other context I'm aware of 

 9 through the stylistic changes in the rules, wherever "shall" 

10 appeared, it became "must." If there's another exception, I 

11 can't bring it to mind as I stand here. 

12 So, I would strongly urge the Committee, please, 

13 to restore it to the standard that it should be. And that 

14 to me is really where uniformity is absolutely critical. We 

15 can talk about point/counter point, whether there aught to 

16 be opt-ins or opt-outs and whether it should be mandatory or 

17 not, but when it comes to the standard that is to be 

18 applied, there simply is no room for discretion, there is no 

19 room for deviation. That standard has to be the same 

20 universally. 

21 With respect to the granting of partial summary 

22 judgment, I think we need to look at some of the realities 

23 as well. One of the arguments that was positive in the 

24 Committee notes as to why there aught to be some discretion 

25 is in cases of partial summary judgement. If the matter is 

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 1 going to go on trial anyway, why risk a reversal by granting 

 2 a partial summary judgment on one issue, Court of Appeals 

 3 says you're wrong, send it back, then all of a sudden you 

 4 get to retry the whole case. 

 5 Number one, if we look statistically at the 

 6 number of cases that are tried, it is infinitesimally small. 

 7 Very few cases go to trial. So I just don't think that's 

 8 going to be that big of an issue in terms of risking a 

 9 retrial on an issue. As a defendant, as a person normally 

10 filing summary judgment motions, the last thing I want to do 

11 is urge a specious or a questionable motion and then try the 

12 case and have to come back and do it all over again. That's 

13 just not common sense operation. And at least in terms of 

14 managing outside counsel now, I would absolutely insist that 

15 outside counsel not engage in that kind of practice. 

16 The other issue that we need to be aware of is 

17 that partial summary judgment is critical in determining the 

18 value of a case and in helping participate settlement 

19 discussions. To the extent that we can take issues off the 

20 table, not only have we narrowed the focus and hopefully 

21 narrowed discovery, narrowed the issues, you have given that 

22 the parties have made some reasonable guidance from the 

23 Court's perspective where the parties may not have been able 

24 to agree that these issues are no longer on the table. That 

25 helps immeasurably in terms of both parties being able to 

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 1 better evaluate a case and arrive at some kind of rational 

 2 settlement that hopefully bears greater predictability and 

 3 greater relationship to the actual value of the case. 

 4 With respect to the point/counter point issue, I 

 5 have practiced in jurisdiction that did both. I practiced 

 6 in jurisdictions that took a third approach and required 

 7 that the parties submit a joint statement of material fact. 

 8 I will tell you unequivocally the latter simply does not 

 9 work, and I would encourage that we all forget about that. 

10 With respect to point/counter point, I've heard 

11 what -- what the judges have said who spoke this morning. I 

12 still find it very difficult to understand how when you have 

13 refined issues down to clear specifics, that I have this 

14 issue and my opponent must respond to that specific issue 

15 with specific citations to the record. I can't conceive how 

16 that does not make a judge's job easier, as opposed to a 

17 throw-it-up-against-the-wall motion and a throw-it-up18 against-the-wall opposition? And you hope that -- you know, 

19 if you're the opponent for a summary judgement motion, your 

20 whole job is to simply try to muddy the waters, to make 

21 things as complicated as you can possibly make them so that 

22 the judge is just going to throw his hands up and say, I'm 

23 not going it take the time to short through all this. 

24 I can't help but think that it creates greater 

25 clarity, greater ease of work for the judge and the judge's 

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 1 clerks, and certainly for the parties to be able to refine 

 2 what those issues are to specifically focus in on. 

 3 In my personal experience, that is much the 

 4 better way to proceed. If there is a problem, and obviously 

 5 it happens, where a proponent of a motion comes in with 

 6 hundreds or even thousands of supposed material facts, I 

 7 would suggest that we need to perhaps look at some kind of 

 8 cost allocution mechanism where there is -- you don't even 

 9 have to call it that. But where there is abuse of the 

10 system, where something like that happens and simply doesn't 

11 make sense -- the parties know what the Court wants -- to be 

12 able to require then that the party that has so acted to 

13 reimburse the other side for its cost in having to respond 

14 to matters that were not really not germain. 

15 Or perhaps the other option is when we talk 

16 about material facts, instead of "material" is it to talk 

17 about essential elements, essential facts. "Material" is a 

18 pretty broad term. If we're talking about traditional 

19 notions of civil jurisprudence, where there has to be a 

20 duty, a breach, damage and causation, the critical elements 

21 that go into each of those as part of a claim or as an 

22 affirmative defense opposing are really pretty specific. It 

23 shouldn't require a thousand-page litany of material facts 

24 to deal with the specific issues, especially if we're 

25 talking about a partial summary judgement motion that 

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 1 focuses on only one thing. 

 2 So to the extent that the Court can require that 

 3 the parties be reasonable in how they approach summary 

 4 judgment, I think everybody is better served. 

 5 There's been mention this morning on timing for 

 6 decisions. One of the biggest problems that we as 

 7 practitioners have, our Courts simply will not rule on a 

 8 motion. Whether it's because they're over worked -- and 

 9 Lord knows, we know that most federal judges are over 

10 worked. They're certainly under paid. I hope that you can 

11 get that fixed in Congress at some point. But whether it's 

12 because they are over worked or because they just don't like 

13 the idea of a summary judgment motion, if perhaps we could 

14 look at some kind of time schedule by which the Court must 

15 rule on a motion and not wait until the day of trial. 

16 CHAIRMAN MARK R. KRAVITZ: Yeah. And I -- I will

17 confess, I -- this has been told to us a lot. And I just -- 

18 I'm trying to understand how this happens. So you moved for 

19 summary judgment, the discovery's ended, and the judge takes 

20 you up -- right the up to the trial date and -- and rules on 

21 it at that date, the morning of the commencement of trial? 

22 G. EDWARD PICKLE, ESQ.: As you're coming in to 

23 start to argue the in limine motions, he'll, Oh, you know, I 

24 do need -- there's something with motions, so you know 

25 what's on and off the table. 

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 1 And so then from a practitioner's standpoint and 

 2 from a client's standpoint, it would help immeasurably. And 

 3 I -- I -- again, I know the work loads are terrible and 

 4 every additional requirement that we put on the judge makes 

 5 the job that much harder, but to the extent that we could 

 6 require some reasonable time frame in advance of trial. 

 7 The cost of trial preparation, as you know, is 

 8 horrendous. And to the extent that we can take an issue off 

 9 the table to cut down on the trial preparations, the cost 

10 savings really can make a difference. 

11 CHAIRMAN MARK R. KRAVITZ: And when that happens,

12 do you find that more often than not the judge just denies 

13 summary judgment because after all it was there from the 

14 start or that the judge does actually grant it partially so 

15 issues that you had prepared for trial wouldn't have had to 

16 be prepared? 

17 G. EDWARD PICKLE, ESQ.: I've had both happen. 

18 CHAIRMAN MARK R. KRAVITZ: Both. 

19 G. EDWARD PICKLE, ESQ.: Typically if you're on 

20 the eve of the trial and the jury is getting ready to be 

21 impanelled, obviously the most common occurrence is the 

22 motion simply is denied, and without reasons being expressed 

23 therefore. But I've also had circumstances where, for 

24 example, punitive damage allegations would be stricken the 

25 morning the trial was getting ready to start. Both parties 

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 1 had spent an awful lot of time preparing on that issue. It 

 2 sure would have helped if we had known that further in 

 3 advance. And in fact, we probably would have wound up 

 4 settling case if that issue had been taken off the bench. 

 5 Briefly on Rule 26, we certainly applaud the 

 6 changes that the Committee is recommending. We think they 

 7 are much needed. I will emphasize, as Mr. Mason and 

 8 Mr. Martin did, the absolute need for some kind of 

 9 protection for work product when dealing with in-house 

10 potential experts. As a major energy company, we are an 

11 organization composed almost exclusively of scientists and 

12 engineers. Every case that we have almost always involves 

13 some kind of technical issue, where you're going to have an 

14 in-house witness testifying as a potential expert. It 

15 greatly impedes the ability to prepare the case, to work 

16 with the witness. And these are people who do not normally 

17 testify, who simply because they're frightened with the 

18 process, require a great deal of hand holding. We really 

19 need to be able to protect attorney work product of dealing 

20 with those kinds of witnesses. 

21 Now, ideally, if it means, as Judge Campbell was 

22 noting, perhaps doing something specific for the employee 

23 witness as opposed to a doctor or the professional 

24 otherwise, maybe that's an approach. But if it means 

25 trading off such that I can't get into what went on with the 

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 1 treating physician, if I have to make that trade, I'll do it 

 2 in a minute. 

 3 But I think there probably aught to be some 

 4 reasonable basis that we can distinguish between an in-house 

 5 employee witness and somebody who is truly a third party and 

 6 independent. 

 7 From the double witness standpoint, I think it's 

 8 going to be a tremendous help not to have to do -- do old 

 9 retainers. That is a gross waste of resources and of time 

10 and money. To be able to use one expert that can both 

11 consult with you and advise you, as well as act as a 

12 testimony witness, I think is going to cut down on cost 

13 tremendously. 

14 CHAIRMAN MARK R. KRAVITZ: Thank you. 

15 G. EDWARD PICKLE, ESQ.: On a whole, I really do 

16 appreciate the excellent work that the Committee has done in 

17 trying to address these issues. And I know they are 

18 certainly difficult to wrestle with and I applaud the 

19 obvious and thought that has gone into this process. 

20 CHAIRMAN MARK R. KRAVITZ: Judge Walker has a 

21 question. 

22 G. EDWARD PICKLE, ESQ.: Yes, sir. 

23 HON. VAUGHN R. WALKER: Good morning, Mr. Pickle.

24 G. EDWARD PICKLE, ESQ.: Good morning. 

25 HON. VAUGHN R. WALKER: You began your comments at 

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 1 40,000 feet, if I can say that, by pointing out the 

 2 tremendous expense of the court system in the United States, 

 3 particularly compared with some other democratic 

 4 industrialized countries such as the United Kingdom and 

 5 Japan, as you cited. I assume you would concede that what 

 6 we're doing with Rule 56 and Rule 26 will only chip away at 

 7 the edges of that problem. 

 8 G. EDWARD PICKLE, ESQ.: Every chip is an advance. 

 9 HON. VAUGHN R. WALKER: But as Judge Kravitz 

10 pointed out, the Standing Committee is taking a look at 

11 these larger issues. While you're here, would you favor us 

12 with what you think are some of the major things that the 

13 Standing Committee and the Rules Committee could do that 

14 would make some significant impact on the problems that you 

15 described? 

16 G. EDWARD PICKLE, ESQ.: I know there are a number 

17 of matters that the Committee already has been looking at; 

18 particularly, for example, revisions with respect to whether 

19 notice pleadings should become more specific. I think that 

20 would help tremendously to try to narrow the focus of the 

21 individual case and thereby narrow discovery. Obviously 

22 that is where most of the cost now lies. When you're doing 

23 multiple depositions, detailed interrogatories, electronic 

24 discovery to the extent that we can narrow it in and really 

25 have a set of issues, a claim, a defense to that claim, I 

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 1 think that would help tremendously to be able to narrow 

 2 that. 

 3 The Committee has already dealt somewhat with 

 4 electronic discovery. I think there's probably still room 

 5 to look there for what we can do to help further reduce 

 6 costs. But it really is not at all an issue in a case now 

 7 with companies such as mine. The cost of electronic 

 8 discovery absolutely dwarfs the overall value of the case. 

 9 It has become a tool of extortion to try to precipitate 

10 settlements. 

11 I am concerned we continue to see a number of 

12 novel causes of action heretofore that never had been in 

13 entertained in common law that really aught to be disposed 

14 of at the summary judgment stage, and unfortunately 

15 sometimes are allowed to proceed too along and too far. 

16 There should not be a hesitancy if there really is not a 

17 basis in law with the nature of the claim that has been 

18 asserted, then let's dispose of it early. If you want, 

19 that's something the Court of Appeals can fix real quickly, 

20 and the parties really have not been out much in the way of 

21 resources. 

22 CHAIRMAN MARK R. KRAVITZ: Professor Marcus. 

23 PROF. RICHARD L. MARCUS: Can I descent to 40 feet 

24 and ask a little question about something you said on Rule 

25 26? I think you said that usually Exxon finds in litigation 

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 1 that it has in-house personnel who are going to give expert 

 2 testimony -- 

 3 CHAIRMAN MARK R. KRAVITZ: Shell does too. 

 4 G. EDWARD PICKLE, ESQ.: I was not going to let 

 5 that pass. 

 6 PROF. RICHARD L. MARCUS: Oops. 

 7 G. EDWARD PICKLE, ESQ.: That's -- that's a 

 8 small -- 

 9 PROF. RICHARD L. MARCUS: I'll try to be humble 

10 about that mistake. Your company -- 

11 G. EDWARD PICKLE, ESQ.: Yes, sir. 

12 PROF. RICHARD L. MARCUS: -- usually finds that to 

13 be true. And you also mentioned the double witness problem 

14 that is a problem we were addressing with the proposed 

15 changes. 

16 My question is: Do you find yourself hiring a 

17 shadow consulting expert when you have an in-house person 

18 who will be testifying to whom you could talk about the case 

19 in order to have somebody else to talk to about the case? 

20 G. EDWARD PICKLE, ESQ.: Generally not. I mean, 

21 again, it's a matter of cost. If you have the expertise 

22 there and it's freely available to you, why not exercise it 

23 and use it? I mean, it would only be a rare circumstance. 

24 And I can't give you a specific example of where I think I 

25 would tend to do otherwise. 

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 1 The dual expert issue really comes more into 

 2 play in the fact that I've got to have a testifying expert. 

 3 And needless to say, the jury is often -- dubious is too 

 4 strong of a word -- but believes that there may somewhat 

 5 bias on the part of an employee who's a witness for his or 

 6 her employer. So it's still not unusual that in addition to 

 7 that in-house expertise, I will look out outside for 

 8 independent third-party expertise, the best people I can 

 9 find, and bring those in. And that's where I really need 

10 the value of not having to double up, so that I can -- if I 

11 need to consult with that individual, I can on a free basis 

12 without having to yet hire another outside expert. 

13 PROF. RICHARD L. MARCUS: And as published, the 

14 Rule solved your problem there? 

15 G. EDWARD PICKLE, ESQ.: I believe in practicality 

16 that it does. If -- if the matter is not discoverable, I 

17 think there is very little risk of somebody asking an open 

18 ended question at trial which they don't know the answer. 

19 At least as I was taught in first-year law school, that was 

20 considered a bad practice and I try to avoid it. 

21 CHAIRMAN MARK R. KRAVITZ: Thank you very much. 

22 G. EDWARD PICKLE, ESQ.: Thank you very much for 

23 your time. 

24 CHAIRMAN MARK R. KRAVITZ: I appreciate it. 

25 Mr. Young? Mark Young? 

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 1 Well, we'll pass over Mark Young in case he 

 2 comes back, and we'll go to Cary Hiltgen, if I pronounced 

 3 that correctly. And if I haven't, I apologize. 

 4 MR. CARY E. HILTGEN: I believe my great 

 5 grandfather pronounced it that way. My grandfather 

 6 pronounced it Hiltgen. 

 7 CHAIRMAN MARK R. KRAVITZ: Okay. 

 8 MR. CARY E. HILTGEN: Good morning, everyone. 

 9 CHAIRMAN MARK R. KRAVITZ: Well, as one whose name 

10 is always butchered, I sympathize. 

11 MR. CARY E. HILTGEN: It's a bad cross. My mother 

12 also chose a very good first name and it also gets spelled a 

13 number of different ways, and I've never won a Publisher's 

14 Clearing House because of that. 

15 Good morning, ladies and gentlemen, Your Honors. 

16 My name is Cary Hiltgen. I am from a city north of here, 

17 Oklahoma City, the center of the United States, the 

18 crossroads of the interstate system. 

19 CHAIRMAN MARK R. KRAVITZ: So what happened to 

20 that football team? 

21 MR. CARY E. HILTGEN: They lost big. I was born 

22 on the K State campus, and my oldest daughter goes to OSU. 

23 Let's move on. I might get myself in trouble. 

24 CHAIRMAN MARK R. KRAVITZ: That's fair. 

25 MR. CARY E. HILTGEN: I started a small boutique 

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 1 firm in Oklahoma City in 1994 that specialized in products 

 2 liability of three types of equipment; construction, mining, 

 3 and agricultural equipment. I now have 13 lawyers and we 

 4 are now a national trial counsel to a number of companies 

 5 within that industry, both on the tort side and on the 

 6 commercial side. I am also -- so that you all know, 

 7 probably seen in my paper, I've also been elected as the 

 8 incoming president of DRI-Voice of the Defense Bar. So I've 

 9 had the privilege and the honor of working with Mr. Martin. 

10 And so I'll try to keep my comments to what Mr. Martin and 

11 Miss -- and Wayne and others have said here before about 

12 various subjects to a minimum. But I would like to speak to 

13 some of the subjects that's come up because of my unique 

14 experience as being national trial counsel. 

15 I have had, since 1990, cases in virtually -- I 

16 believe, thinking back there this morning, there's two 

17 states and Puerto Rico that I have not had a case in either 

18 state court or federal court since 1990. 

19 I thought that it might add -- after reading the 

20 summaries yesterday, that it might help to talk about the 

21 real world experience of one or two corporations. So I 

22 probed one corporation that I've been national trial counsel 

23 for, it's a conglomerate. It's a Fortune 500 company. It's 

24 a leading manufacturer. And I handle more commercial cases 

25 for them than I do products cases. I've handled over 100 

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 1 cases to conclusion for them up to this day. I have over 60 

 2 right now in litigation. And in all deference to His Honor, 

 3 I have not filed a motion for summary judgment in even one 

 4 half of those cases. I have filed summary judgements in 26 

 5 of those cases that I've closed over -- over 100 that I have 

 6 closed. And there is a reason. Because of strategy. 

 7 Now keep in mind, there's two things that a 

 8 client when they hire you wants. They want results and they 

 9 want it cost effectively. So when we talk about cost, it's 

10 not what the -- what us lawyers or judges think about it, 

11 it's what our clients think about it. If I don't handle it 

12 effectively and -- and -- and in a manner in which they 

13 believe is cost effective, they're going to find other 

14 counsel. So I'm looking for methods to reduce the cost. 

15 Now it makes no difference what -- on the 

16 plaintiff's side or the defense side, when I'm litigating 

17 against another manufacturer or I'm litigating against 

18 dealers or I'm litigating against customers of multi-million 

19 dollar pieces of equipment that we have an obligation to 

20 take care of 24 hours a day seven days a week for 20 years. 

21 Multi-million dollars are involved, but I don't call those 

22 complex cases. 

23 I've filed, again, 26 motions for summary 

24 judgment. Why? Because my client does not want me to roll 

25 the dice in the courtroom. They want to get out of the 

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 1 case, whether they're on the plaintiff's side or the defense 

 2 side, as quickly and efficiently as they can. They don't 

 3 like litigation. And I assure you, whoever is designated as 

 4 the representative who's got to sit at counsel table, no 

 5 matter whether the case is three days or three months or 

 6 four months, and watch their life go by. They don't want to 

 7 be there. That's not what they signed up with that company 

 8 to do. I may enjoy it. My paralegals love to go to trial. 

 9 I love to go to trial. But the clients don't want to be 

10 there. It's cost effective. 

11 I believe in partial summary judgments in 

12 federal court. Now, I'm going to break them down. 

13 Ironically, out of those 26, 13 are state court cases and 12 

14 were federal cases. I love to be in federal court. I got 

15 told a long time ago when I -- by a mentor was: When you 

16 write a brief, it's got to be brief because judges don't 

17 live and breath the case your with, so make it brief. 

18 So when I look at every case and I teach my 

19 associates how to look at what -- how do get out of this 

20 case on summary judgment. That's the way we look at it. It 

21 becomes the elements to get out because somebody has already 

22 done it. I want to find out why. So when you -- I heard 

23 about all these statement of facts, my point -- in the case 

24 that I filed, keep it simple. Very few statement of 

25 material facts. 

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 1 Now, I get a lot of counter responses with lots 

 2 of facts because they're trying to develop a fact in issue 

 3 to keep it from summery judgment being sustained. 

 4 I believe, like I say, partial summary judgments 

 5 in the federal court actions. Out of those 12 cases, nine I 

 6 got summary judgments. Out of those nine, four appealed. I 

 7 got three great decisions on the appellate level from the 

 8 Circuit Court, and there was a mistake made in the Third 

 9 Circuit. And unfortunately, it's a published opinion. 

10 CHAIRMAN MARK R. KRAVITZ: Judge Baylson feels 

11 that happening. 

12 MR. CARY E. HILTGEN: Surace v. Caterpillar. 

13 State court, four out of 13. One appeal, 

14 affirmed. The other three were not appealed. Of the 

15 remaining cases in federal court, I was able to settle them 

16 expect for one. 14 causes of action. Partial summary 

17 judgment on six of them. I won seven of them in the 

18 courtroom in three days. We waived the jury. And I lost 

19 one and got hit with attorney fees because I lost one 

20 because I'm not the prevailing party. Now that's a whole 

21 other subject. 

22 But the point being, in federal court, partial 

23 summary judgements work. State courts, not -- not one time 

24 did a state court judge in any jurisdiction sustain a 

25 partial summary statement. They overruled them all. 

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 1 And out of the nine cases, the nine cases that 

 2 did not go to summary judgment, I tried five of them to jury 

 3 trial, all of them by jury trial. The minimal trial was 

 4 three weeks and longest one was five and-a-half months. 

 5 Now, which is the most cost effective to my 

 6 client? It's the use of summary judgment. And the use of 

 7 partial summary adjustment because it lowers the number of 

 8 witnesses involved in the case, the issues involved in the 

 9 case, the cost involved in the case. And ultimately the 

10 decision making that they have to make as to whether they're 

11 going to pay or how much they're willing to pay to forego 

12 pursuing the case to full trial. 

13 But I suggest to you, if you take away and you 

14 make it discretionary, like it is in the state court, I 

15 assure you from the defense standpoint, from the plaintiff's 

16 standpoint on commercial cases, you are asking to exacerbate 

17 the amount of time and money involved. Because I have to do 

18 budges. I'm national trial counsel. I hire local counsel 

19 in every case I have to add in their time with what I'm 

20 going to have to do. Right now the largest single expense I 

21 have is learning the nuances of every state court or every 

22 federal district court. Every one is different. Every one 

23 has a different set of federal rules, local federal rules. 

24 I just got -- learned that -- I got caught in 

25 the squeezed this week. I found out from the new federal 

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 1 jurisdiction that I'm in, they don't limit requests for 

 2 admissions. So now I got 152 requests for admissions on one 

 3 of my expert witnesses. Consultant. Paid. 

 4 Uniformity, in my opinion, is what my client -- 

 5 clients would love. When they walk into a courtroom where 

 6 they can be sued in every jurisdiction in the United States, 

 7 they would like to know, This is the way it's going to be 

 8 played. Not, okay, now we got to spend 4- to $5,000 of our 

 9 money just trying to figure out all of the little

10 idiosyncrasies. But on a rule for summary judgment, there 

11 can be lots of discretion, but not on summary judgment. Not 

12 for the courtroom where it's supposed to be about the 

13 parties right to a fair, just and speedy resolution of their 

14 claims or defenses. They have the absolute right, if 

15 possible, to get rid of those claims. And so therefore, I'm 

16 for it. 

17 Now, as far as -- I believe that I'm -- I have 

18 never had a motion for summary judgment where I did not have 

19 point/counter point. Again, my statement of facts go right 

20 down the elements. Whether I'm on the plaintiff's side or 

21 the defense side, I want it simple. Those complicated ones, 

22 that just gives you, Your Honors, the ability to say, Oh, 

23 there's question of fact. That's -- that, to me, is bad 

24 advocacy. If you're going to move for summary judgment... 

25 And my favorite movie, In Search of Bobby 

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 1 Fischer -- I don't know whether you've all seen it -- there 

 2 is a part in there where the chest master is teaching the 

 3 young boy how to play chess and they're going back and 

 4 forth, moving like he learned in the park. And at some 

 5 point the master just knocks all the pieces off -- off the 

 6 board and he turns to young boy and he says, Now tell me 

 7 your next seven moves. 

 8 I don't do that in advocacy. If I'm going to 

 9 win a case, I don't want the other side to know every one of 

10 my moves. My client is not paying me to lose arguments by 

11 filing frivolous motions for summary judgment and spending 

12 their time and money. Plus, as national counsel, any 

13 decision you make may be in the rule quarter system and will 

14 be used against my client and me in a later case, and which 

15 fields an argument over here on behalf of his client. So I 

16 pick and choose what is appropriate for that client in that 

17 case because my job is to advocate their position. 

18 And therefore, I believe that it should be 

19 "must" and we should have specific doing away of statement 

20 of facts. Thank you. 

21 CHAIRMAN MARK R. KRAVITZ: Thank you very much. 

22 Are there any questions? 

23 We very much appreciate your sharing with us 

24 your own experience and your background. Thank you so much. 

25 MR. CARY E. HILTGEN: Thank you. 

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 1 CHAIRMAN MARK R. KRAVITZ: Keith O'Connell. 

 2 Welcome, sir. 

 3 MR. KEITH B. O'CONNELL: Thank you. Good morning. 

 4 As with bar speakers, I'm also all very grateful 

 5 for this opportunity. And as with the other speakers, I too 

 6 want to express appreciation for your selfless service. I 

 7 have to say that -- not necessarily selfless service, but 

 8 for that matter the witnesses that have testified in D.C. 

 9 and here today, and will testify San Francisco. It just 

10 makes me really proud to be a lawyer. It really does. 

11 I'm Keith O'Connell. I'm in private practice 

12 here. Was actually born and raised here. I have a little 

13 firm, eight lawyers. I've been in private practice for 

14 roughly 27 years. I'm really not here today in that 

15 capacity. I'm here on behalf of the Texas Association of 

16 Defense Counsel. Some of you are probably familiar with 

17 that organization. 

18 The Texas Association of Defense Counsel is an 

19 association of approximately 2000 Texas lawyers whose 

20 practice primarily involves the defense of civil suites, and 

21 that runs the gambet from professional liability to 

22 commercial litigation to construction defects, labor 

23 employment. You can pretty much name it. Anti-trusts. 

24 Judge Ferguson was actually a very active member 

25 before he took the bench. Mr. Beck, who serves on the 

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 1 Standing Committees, Art -- or Tom Ganucheau assisted me on 

 2 the Executive Committee. So anyhow, that's who we are. 

 3 I'm currently Executive Vice President. I'm not 

 4 sure that has anything to do with why I got picked. It 

 5 probably has more to do with where I live. But that's what 

 6 I am. I will president of the organization in 2011. 

 7 CHAIRMAN MARK R. KRAVITZ: Congratulations. 

 8 MR. KEITH B. O'CONNELL: That's not what I keep 

 9 hearing -- 

10 CHAIRMAN MARK R. KRAVITZ: For keep going. 

11 MR. KEITH B. O'CONNELL: -- especially from former 

12 presidents, former presidents like Mr. Martin. 

13 I promise what I have to say is going to be very 

14 brief. I do want to address Rule 56, that's primarily why 

15 I'm here. But I do want to make it clear to the committee 

16 that I have authority to represent on behalf of the far 2000 

17 members that we -- we support the amendments. 

18 As I said in the summary my testimony, you know, 

19 though positions have already been well represented and well 

20 articulated by the IABC, the Lawyers for Civil Justice, DRI, 

21 and others, so -- and I'm not planning on commenting on -- 

22 on those. 

23 What I really have to offer today I provided in 

24 my summary by written testimony. As I understand it, as far 

25 as y'all are concerned, it's not necessary or desirable for 

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 1 me to verbally reiterate that now. So I won't, unless 

 2 somebody asks me about it. I wouldn't want to do that 

 3 anyway because I'll probably get stuck with the indignity of 

 4 losing that motion one more time. But I would respectfully 

 5 suggest that -- that the proposed Rule 56(a) should be 

 6 revised to mandate that the Court must grant judgement if 

 7 the record shows there's no genuine issue, no genuine 

 8 dispute of material fact and limits the entitlement 

 9 judgements as a matter of law. 

10 In my -- in my written statement, I offered 

11 anecdotal evidence; a case I handled in this court house 

12 that didn't resolve until this past summer, hopefully to 

13 demonstrate the importance of and the need for a clear 

14 mandate for -- for clear guidance and more certainly and 

15 more clarity in Rule 56. And hopefully to demonstrate in 

16 one sliver, in one case, in one court, in one district of 

17 many, the cost of allowing meritorious cases to remain in 

18 the system. 

19 And of course I gave you numbers on what was 

20 inflicted on my clients; $200,000 in additional attorney 

21 fees and expenses two and-a-half years after the denial of 

22 the motion. $130,000 in settlements. And you know, for a 

23 widow with four kids, maybe that's a big deal. It's 

24 relatively nominal for that kind of case. But I guess my 

25 point was, it was coerced as much as I told the client that, 

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 1 This certainly is going to save us, so don't worry, we're 

 2 entitled to judgement as a matter of law. They just flat -- 

 3 they just flat didn't want to invest any more money in the 

 4 case and it settled. And I did suggest in my written 

 5 testimony that the amount it settles for sort of 

 6 corroborates, I think, my position about the merits of the 

 7 case study. 

 8 Be that as it may, I did want to point out that 

 9 there are some other costs, maybe a little bit lower, but -- 

10 and then maybe I can lead to something you haven't heard. 

11 Maybe not. But in that case, of course, everybody had 

12 increased cost, everybody who stayed involved. I was a 

13 target actually because co-defendant had -- the governmental 

14 entity had some immunity and caps. Obviously the

15 co-defendant suffered additional costs and -- and -- and the 

16 plaintiffs for two and-a-half years of having to put up with 

17 me. After attorney's fees and expert witness fees and 

18 costs, I'm not sure the widow and the three children ever 

19 saw much of anything. And we didn't even get to the cost of 

20 trial and appeal because the case settled. 

21 But I guess what I wanted to suggest to you 

22 respectfully is that I think we should consider other costs 

23 besides the monetary costs. I would just suggest to you 

24 that is a real cost for keeping meritorious cases from being 

25 heard. I think that there's a cost for the perception, 

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 1 particularly among non-lawyers, that are court system is 

 2 arbitrary. And -- and I suggest that there is a cost for 

 3 perception that -- that judges don't and won't follow the 

 4 law. And a perception -- the cost of the perception that 

 5 our -- our civil system just flat doesn't work to the point 

 6 where people think it's an -- in its entirety should be 

 7 avoided. 

 8 And so is it any surprise or wonder that 

 9 whenever we buy a computer or anything else in shrink wrap 

10 or apply for a job, that we're having to submit to binding 

11 arbitration without fair notice, without any bargaining. 

12 And so I hear -- I hear these comments and 

13 stuff. I've had other summary judgments, but this is going 

14 to jury trial. I would suggest to you that what's 

15 destroying the jury -- or jury trials and making them vanish 

16 is a lack of confidence in our system, at least in part, and 

17 the view that it has become unpredictable, in addition to 

18 the unnecessary costs. I think those are real costs. 

19 I do have to say -- what I thought I'd say last 

20 night is that I'm just flat humbled to be here before you. 

21 But I saw you today, I think maybe the word is intimidating. 

22 You know, you're federal judges and you're law professors 

23 and you're lawyers and you're impressively credentialed in 

24 your own right. And on top of all of that, you've been 

25 living with these rules and struggling with those amendments 

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 1 for a good while. I suspect years. I can assure you, I 

 2 have not. 

 3 And I did want to tell you that to prepare for 

 4 my testimony I -- I did some stuff. I read the read the 

 5 amendments. I read the report of Advisory Committee on the 

 6 civil rules. I've read the written comments that were 

 7 submitted. I listened to most of the pod casts at the D.C. 

 8 hearing. Of course, I read Kennedy -- I read Kennedy versus 

 9 Silas Mason Company. I read Anderson versus Leary, I read 

10 Celatex. I read Wright and Miller. I read cases stating 

11 that the Court has discretion to deny motions for summary 

12 judgment. And I read cases stating that the Court has no 

13 discretion granting the motions. I did all that. And then 

14 I read -- this is not really in particular order. But of 

15 course I read Professor Freedman's article in 2002 in the 

16 Law Review. And you can hardly do that the without reading 

17 Professor Shannon's article in the American Law Review, so I 

18 did all that. 

19 And so I was thinking, you know, so what is 

20 it -- what is it -- I mean, y'all seen all that, and you've 

21 heard all that, and you've read all, and you've debated it 

22 more than once likely. And so what is it, you know, that I 

23 can offer you that you've not already read or heard or don't 

24 already know? And last night it occurred to me that maybe I 

25 can tell you I'll meet at your hotel right here. Of course 

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 1 as it turns out, from what I've heard this morning y'all are 

 2 leaving, so I can't help there either. 

 3 I don't mean that as a dodge, but, you know, we 

 4 can discuss and we can debate in plain language of Rule 56 

 5 before the style change. We can debate or discuss the 

 6 language of the holding in Kennedy and Celatex. We can 

 7 debate or discuss the conflict among the lower courts about 

 8 whether granting the motion for summary judgment is 

 9 mandatory or discretionary, or whether given the state of 

10 the law at the time of the 2007 style change, the change 

11 would have reflected accepted practice. And we can talk 

12 about all that and debate it and so forth. My guess is that 

13 you've heard and read enough of that. 

14 So I would just like to maybe suggest one thing, 

15 just to consider it. And you probably already have. And -- 

16 and I'm not going to ask you to agree with it. Just -- I 

17 don't know, let it wash over you. I mean, I would suspect 

18 that you all have already been through this. But just in 

19 case, I would suggest that -- that if nothing incredibly 

20 great appears that "should" fields discretion. I mean, it 

21 does. And by changing "shall" to "should" in the rule, by 

22 doing that, some level of discretion has been projected in 

23 the rule. This of course has caused all this great concern 

24 that we've all been talking about, the change in the 

25 standard, the breadth of discretion, how much discretion is 

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 1 there? Is this going to make the rule under utilized? Is 

 2 this going to make the rule effective? What's the standard 

 3 of review there? Among other things. 

 4 And I just want to suggest that writing 

 5 "discretion" into the rule -- just consider this. Writing 

 6 "discretion" in the rule is not necessary. As I read the 

 7 cases that discuss discretion -- or for that matter, the 

 8 commentators who, you know, give examples of discretion, the 

 9 kind of discretion that -- that they're talking about I 

10 don't think is inconsistent with a mandatory standard. I 

11 don't think it is. I think the discretion that the 

12 commentators talk about and the courts talk about when 

13 they're giving their examples are compatible with "shall," 

14 are compatible with "must." 

15 I'm just asking you to consider this. You 

16 probably have all this. I have not seen a case -- I haven't 

17 lived with it for as long as y'all. I have not seen or 

18 found a case that says this: That a court has discretion to 

19 deny a motion for summary judgment where the court is 

20 satisfied; the motion is not premature; there has been 

21 adequate time for discovery; an adequate record to support 

22 the judgment has been made; the motion has been filed in 

23 accordance with a schedule order -- you know, the deadline, 

24 it's not filed on the eve of trial; proper notice has been 

25 given to the other side; the other side has had a reasonable 

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 1 opportunity to respond; the movement has -- the movant has 

 2 shown, based on an adequate record, that there is no genuine 

 3 issue of material fact; the movant has shown, based on an 

 4 adequate record, that the movant is entitled to judgement as 

 5 a matter of law. In fact, I've have not seen a case that 

 6 says, When all that happens, it's okay to leave that 

 7 discretion to the court. I've haven't seen it yet. 

 8 The -- the cases discussing discretion were 

 9 providing examples of -- you know, showing the need for 

10 discretion, I would submit, are examples of cases with 

11 those -- all those things did not occur. Not all of them 

12 did occur, but some of them did occur. In all of those 

13 examples in all those cases, that litany of things I just 

14 went through, one or more of them didn't -- didn't happen. 

15 And I would submit that in those instances, any court under 

16 the plain language of the old rule, using the language of 

17 command -- and probably Rule One and Rule 16 and maybe 

18 others -- but that any court under the old rule, or under a 

19 rule that says "must" would have both the right and the duty 

20 to either deny the motion or then continue it until 

21 there's -- it's more appropriate. 

22 I would just say that -- that it aught to 

23 "must." And that if it is "must", the trial court -- the 

24 trial court will still have the discretion identified by the 

25 courts and the commentators. I think that. I would just -- 

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 1 I would ask you to consider it. And that with the word 

 2 "must" we avoid the significant risk of that indefinite and 

 3 unpredictable standard that I think is there now. And thank 

 4 you. 

 5 CHAIRMAN MARK R. KRAVITZ: Thank you, 

 6 Mr. O'Connell. 

 7 Mr. -- Judge Walker? 

 8 HON. VAUGHN R. WALKER: It's real -- you've done 

 9 an excellent job of recounting the history and the gloss 

10 that matches to this concept we're talking about under the 

11 "should" versus "must." 

12 And if I understand your argument, it is that -- 

13 obviously this gloss is as it is. But changing the rule 

14 from just that simple English word from "must" to "should" 

15 or "shall" to "should," tips the balance that courts and -- 

16 courts are going to place on all of this gloss that is going 

17 on. 

18 Now, what would be your view if the rule were 

19 phrased in such a way that we didn't use either "should," 

20 "shall" or "must," but simply provided that a party may move 

21 for summary judgement on all or part of the plaintiff; if 

22 there's no genuine issue of disputed facts, the party is 

23 entitled to a judgment as a matter of law? Would that avoid 

24 the problem? 

25 MR. KEITH B. O'CONNELL: Well, given the history,

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 1 I don't think it would. I mean, my argument would be 

 2 entitlement means entitlement. 

 3 HON. VAUGHN R. WALKER: I'm sorry? 

 4 MR. KEITH B. O'CONNELL: My argument would be that 

 5 if that was the way the rule was written, certainly the 

 6 movant is entitled. And that's exactly what it is, 

 7 entitled. Entitled. Period. There should be no discretion 

 8 there either. But because of -- because of what's happened, 

 9 because of the old rule, because of this law that's -- this 

10 conflict of law that's out there, because of the style 

11 change and because of this debate, I don't -- I think it 

12 needs a bigger fix than that. 

13 HON. VAUGHN R. WALKER: And how would you propose

14 that bigger fix? 

15 MR. KEITH B. O'CONNELL: "Must." I think it 

16 needs -- I think it needs to be "must." And I think the 

17 courts, as I mentioned, will still have the discretion they 

18 need to run their court and do the right thing. 

19 CHAIRMAN MARK R. KRAVITZ: Okay. Thank you very 

20 much for your -- for your comments. And good luck with your 

21 presidency. 

22 MR. KEITH B. O'CONNELL: Thank you all very much. 

23 CHAIRMAN MARK R. KRAVITZ: Mr. Pate. Stephen 

24 Pate. If I -- I may not have pronounced that correctly 

25 either. 

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 1 STEPHEN PATE, ESQ.: You did. 

 2 CHAIRMAN MARK R. KRAVITZ: I did. Okay. 

 3 STEPHEN PATE, ESQ.: You know, I'm -- I'm going to 

 4 start by saying that I know that I'm a real defense attorney 

 5 because it's ten minutes -- five minutes until noon and 

 6 everybody else has said everything that needed to be said 

 7 before. So and since I've been picking a jury in 70 seconds 

 8 now, I know I need to be brief. 

 9 Let me tell you who I am. My name is Steve 

10 Pate. Often it's pronounced Pâté. I am the vice president 

11 of the Federation of Defense and Corporate Counsel, and I am 

12 a partner at Fulbright and Jaworski where I'm the Chair of 

13 the Insurance Litigation Practice Group. 

14 I've been thinking about what I can tell you 

15 that differentiates me from some of the other speakers. And 

16 that -- what differentiates me is my area of practice. 

17 You've heard from many products liability attorneys, you've 

18 heard from people who do commercial litigation. I primarily 

19 do coverage litigation, and I do bad faith extracontractual 

20 litigation. Coverage litigation is of course contract law, 

21 policies. And what I think I can tell you, want to point 

22 out to you, is how many times I've filed motions for summary 

23 judgement in what are essentially contract cases and they 

24 are denied in federal courts and in state courts. 

25 What I can also tell you is though I do 

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 1 primarily work for the carrier, I also do some policyholder 

 2 work, and I've filed motions for summary judgment for the 

 3 policyholder side and they are denied as well. I don't 

 4 think it's the carrier. I don't think it's bias against the 

 5 insurance company from federal judges. I think it's a 

 6 situation where judges are reluctant to rule on summary 

 7 judgment motions, even though it's a situation involving a 

 8 contract which involves matters of law. 

 9 I'd also like to tell you a personal example of 

10 how many times -- several times I've had motions for summary 

11 judgement in policy cases, contract cases, filed by the 

12 policyholder's attorneys where I have filed my own motion 

13 for summary judgment and both motions are denied. You would 

14 think when you both have good counsel, that -- and it's a 

15 contract case, that maybe one side or the other is right on 

16 the law. But frankly, judges are reluctant to grant motions 

17 for summary judgment. 

18 Now, giving you those examples leads me to this. 

19 I -- and it goes back to the point you were making with the 

20 last witness. I really think that the language aught to be 

21 "must." And we were talking about mandamuses and what might 

22 happen with the adding the word "mus"t to the language. I 

23 think that there is a fear that there will be more 

24 mandamuses. I have never seen a mandamus on a denial for a 

25 motion for summary judgement, and I too have a national 

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 1 practice. I have never seen -- and I'll tell you why. 

 2 Number one, I don't think a case has ever been strong enough 

 3 for it; number two, as a practitioner, I don't like to 

 4 mandamus a judge. You know the old saying, If you shoot at 

 5 anything, you better kill it. Well, I've never felt like I 

 6 wanted to kill it. 

 7 HON. VAUGHN R. WALKER: Hold your fire, please. 

 8 STEPHEN PATE, ESQ.: But I really don't think that 

 9 that is going to happen. I think that it might be, if you 

10 add the word "must" and there's some denials of motions for 

11 summery judgment, you might have some more room for a lot 

12 more appeals, things of that nature. And that might be a 

13 good thing. 

14 But here's the bottom line with me on the 

15 additional of the word "must." We all know that there's 

16 certain federal judges that are -- there's many Federal 

17 Judges who do not want to be told what to do. I clerked for 

18 one of them. He was a great man, but he sometimes would not 

19 abide with what the Circuit wanted him to do. I don't think 

20 that he would look at the word "must" and he'd say that that 

21 told him that he needed to do something. But I think there 

22 would be many, many federal judges, and perhaps even their 

23 law clerks, who would look at the word "must" and say, All 

24 right, this is what they're telling me now about what so 

25 effects that Anderson really means. That it means that 

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 1 they're serious about this; that -- going back to 1938 when 

 2 these rules were adopted, summary judgments were supposedly 

 3 one of the most important rules adopted back in the 30's 

 4 back when we adopted the federal rules; that they're very 

 5 serious about this and that this is the way to resolve a 

 6 case that should not be tried. 

 7 I also want to tell you that I think "must" 

 8 would help in another situation. There are judges that use 

 9 summary judgments as settlement tools. I thought it was 

10 very interesting that someone brought up just a while ago 

11 the fact that summary judgments were granted sometimes at 

12 the beginning of trial. 

13 Not in federal court, but in state court this 

14 past year, I had an important motion for part partial 

15 summary judgment that had been on file for seven months 

16 granted the week before trial. I truly believe -- and I 

17 don't think the judge was bad man. I think he just -- I 

18 think he thought he was a mediator and not a judge, frankly. 

19 I think that he thought that granting that then was 

20 something in a way to get the case settled. And I think 

21 that if he really thought that was a good motion that he 

22 should have granted it seven months before. And if he had 

23 the word "must," maybe he would have thought about it a 

24 little bit harder. 

25 Now, I don't think that there are two many 

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 1 motions summary judgment filed. Even in my contract cases, 

 2 I often recognize that there are genuine issues of disputed 

 3 fact. 

 4 And I want to segue into -- from talking about 

 5 "must" in talking about point/counter point. One of the 

 6 things I like about point/counter point system -- I'm 

 7 licensed in the Eastern District and I clerked in the 

 8 Eastern District, I know -- I've done it over there. It 

 9 makes you, both the plaintiff's attorney and the defense 

10 attorney, marshal their evidence and analyze their case. 

11 And though this is not my personal experience, 

12 it's been the experience of an attorney that I know, that he 

13 had a good motion for summary judgment, he did point/counter 

14 point in the Eastern District and the other side gave up. 

15 The other side realized his case was not going to withstand 

16 summary judgment and they did not have to go through the 

17 rest of the process. I would hope that could happen in all 

18 districts. 

19 Now, as far as the point/counter point system, 

20 the criticisms of it, one thing that I don't think we've 

21 said before is, even if you don't -- even if you have to do 

22 it, and even if the other side doesn't give you up, and even 

23 if the judge is not inclined to grant you motion for summary 

24 judgement, one of the reasons I like it is it really helps 

25 to educate the judges. It lays things out for the court so 

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 1 that later on they can think of -- look at that. Even if 

 2 they don't grant summary judgments, they can look at it, 

 3 they know the case, it can help them with motions in limine 

 4 and things of that nature. And I think that's important. 

 5 We've have a lot of discussions about the 

 6 different facts and how many facts there would be. It is 

 7 extremely foolish for a defense attorney to over play his 

 8 hand and have a motion dismissed. I mentioned that I was a 

 9 law clerk in the Eastern District. When I got in a motion 

10 to take to my judge, summary judgment -- summary motion 

11 judgement was listed, I think I already had an idea that 

12 there was some fact in these documents that was going to 

13 preclude summary judgment. So when I do it, I keep it short 

14 and simple and succinct. Because otherwise I don't think 

15 it's going to work. 

16 So when we talked about all the -- when the 

17 plaintiff's attorneys talk about all these huge, long 

18 motions -- someone mentioned something about have a savvy 

19 defense attorney, I think -- I hope I'm a savvy defense 

20 attorney. I'm not going to misuse it. I'm not going to 

21 over do it because the judge would just think there's a 

22 factor. You got to do it right. But I think it's an 

23 efficient system, and I'd really like to see it adopted. 

24 Finally, on Rule 26. Wayne was up here. Wayne 

25 Mason was up here and he's president of -- past president of 

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 1 the Federation of Defense and Corporate Counsel, and we 

 2 talked about this. I will be quite honest with you. When 

 3 we first had the discussion, I was not for it because I 

 4 wanted to get to the treating physician, ask them about what 

 5 discussions he had. 

 6 CHAIRMAN MARK R. KRAVITZ: You were not for his 

 7 proposal, but you otherwise support Rule 26? 

 8 STEPHEN PATE, ESQ.: Yes. 

 9 CHAIRMAN MARK R. KRAVITZ: Okay. 

10 STEPHEN PATE, ESQ.: But now I am. And I'll tell

11 you why. I did a lot of thinking about it. And I think 

12 John might have spoke about trade offs. He's exactly right. 

13 The benefit I get from asking a treating physician what was 

14 discussed between plaintiff's attorney and the treating 

15 physician is minimal. I get the same benefit by just asking 

16 the treating physician in front of a jury, Well, did you 

17 talk this lawyer here? Yes. The jury can draw its own 

18 conclusions. 

19 I also don't think that juries think the 

20 treating physicians are actually necessarily the most 

21 objective people in the room. I think that -- you know, if 

22 you ask someone on the stand about -- even a treating 

23 physician, Did you talk with this attorney? Yes. What did 

24 he tell you to say? Well, he told me to tell you the truth. 

25 And that's the kind of thing you're going to get. That's 

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 1 the real world. 

 2 So I don't think that -- and I know there's some 

 3 others that probably disagree with me. But in the real 

 4 word, I think it is a very, very good trade off. 

 5 It's right after noon and I thank you for having 

 6 me. 

 7 CHAIRMAN MARK R. KRAVITZ: Well, hang on a second. 

 8 Let's see if there's any questions. 

 9 I very much appreciate you -- your willingness 

10 to come here and give us your views both in writing and 

11 orally. Thank you. 

12 STEPHEN PATE, ESQ.: Thank you. 

13 CHAIRMAN MARK R. KRAVITZ: Carlos Rincon. 

14 Welcome. 

15 CARLOS RINCON, ESQ.: May it please the Court. 

16 Thank you so much for having -- having me and allowing me to 

17 participate in this process. I'll tell you, this was a -- 

18 kind of ear opening experience for me because I have an 

19 opportunity to do something I've never done before, and that 

20 is to listen to pod casts. And when you want to get out of 

21 having to pull down Christmas lights on your house or going 

22 to the office to listen to a pod cast on Rule 56, it's a 

23 great -- great rationale to get out of the house.

24 HON. LEE H. ROSENTHAL: Glad we could help. 

25 CARLOS RINCON, ESQ.: My name is Carlos Rincon. 

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 1 I'm a lawyer from El Paso, Texas. I -- about three years 

 2 ago I ventured out to start my own law firm. I'm a defense 

 3 lawyer. I think God put me on this earth to be a defense 

 4 lawyer. I've been thinking about this. You know, I played 

 5 defense in every sport that I ever participated in. I was 

 6 focused on defense. I encourage my kids that when they play 

 7 athletics to focus on defense. And I really enjoy being a 

 8 defense lawyer in the civil litigation context. 

 9 I don't practice employment law, and I don't 

10 practice in the civil rights arena. My firm does some civil 

11 rights work. And the reason I mention that is when I was 

12 going through this testimony, I was very, very impressed 

13 with the qualifications and background experience of all the 

14 folks that were presenting in Washington D.C., and was 

15 trying to identify, well, what could I possibly mention to 

16 these nice folks that they haven't heard already? 

17 Well, the first thing is, from my standpoint, 

18 I've submitted a written submission relative to the Rule 56 

19 Amendments. I believe that the wording should be worded 

20 "must." 

21 And when looking at the commentaries, hearing 

22 the testimony on that subject by the counterparts from my 

23 vantage point was that much of the dialogue has to do with 

24 just stopping the use of summary judgment practice and all 

25 the inequities that flow from summary judgement practice. 

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 1 Now, my practice is heavily entrenched in 

 2 transportation law. I'm happy to say that I represent the 

 3 Union Pacific Railroad back home. I represent lots of 

 4 trucking companies. And I do some across-the-border 

 5 commercial litigation work. Relative to identifying cases 

 6 that are proper candidates for summary judgment 

 7 consideration in our office, and I think relative to our -- 

 8 to our practice area with my colleagues, we are very 

 9 cautious about identifying which cases to move on summary 

10 judgment for. We -- I've heard and I've read the testimony 

11 that in some areas employment law -- I know that the 

12 plaintiffs law in medical malpractice -- the malpractice in 

13 Texas is sort of final. It's on the -- it's on the case 

14 assignment sheet. You have to file summary judgment. And 

15 that's not the rule in our practice. 

16 So, with respect to the comments that there's 

17 a -- there's this constant flow of summary judgment being 

18 filed in all closed cases that are -- in all cases, even in 

19 closed cases, that is simply not the experience what I think 

20 is going on in the El Paso Division of Western District. 

21 Our little community is very small, and I speak to a lot of 

22 plaintiffs, and I think I -- I'm not speaking, obviously, 

23 for them, but I think I appreciate and understand their 

24 experiences. So I think the observation that I'm not seeing 

25 summary judgement motions in every case to be filed is 

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 1 adequate. 

 2 Secondly, another major volume of the 

 3 commentaries that you all have heard is that summary 

 4 judgment practice is eating away at -- at one of the core 

 5 rights that -- that folks have. And that's getting into a 

 6 courtroom, confront your accuser, eyeball the guy that made 

 7 the decision to fire you or the person that breached the 

 8 contract. And the suggestion is being made that that really 

 9 is largely attributable to summary judgment practice. 

10 But back home in El Paso, clients, plaintiffs 

11 and defendants, are becoming -- in the information age, 

12 they're becoming more sophisticated. And as that process 

13 develops, they're becoming more savvy about solutions. They 

14 want to talk about the end game. They come into your 

15 office, they want to understand, okay, what -- what is it 

16 going to cost them? What is the ultimate solution going to 

17 be? 

18 And ADR, Alternative Dispute Resolution, 

19 mediation, is very popular. And it's something that not 

20 only defendants endure but plaintiffs are seeing that they 

21 have an opportunity to get a solution to their problem 

22 quickly. And I think more than anything else -- I've 

23 always -- I told my kids one of these days we're going to go 

24 to a museum and there's going to be a man in a suit holding 

25 a briefcase, standing like this, and they're going to have a 

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 1 plaque that says, Trial lawyer; once roamed certain parts of 

 2 North America, the United States. And I said, yeah. I 

 3 mean, but that -- that is the case. 

 4 Now, in -- in many of these ADR settings, 

 5 there's flexibility. And you can -- I think ultimately what 

 6 some clients need is an opportunity to vent, tell their 

 7 story. And that certainly happens. And so I think it's an 

 8 unfair position to say that summary judgments are eroding 

 9 the jury trial. 

10 As I mentioned, I do not practice in the area of 

11 employment law, civil rights. I'm not going to go there. 

12 But I will say this: With the shifting of the 

13 legislature -- legislative activity in Texas, many, many 

14 folks that were doing automotive negligence are now doing 

15 employment law. I think right now their -- everybody is -- 

16 not everybody, but many people are doing employment law as a 

17 big part of their practice. So for those of us who don't do 

18 that area, we see that those filings are going up. 

19 So as you all consider the statistics and data 

20 that you're being given about the number of summary judgment 

21 motions being granted in employment cases, I think it's also 

22 fair to consider the fact that there's been lots more 

23 filings and it's just -- that's just a shifting trend. 

24 Relative to the final point I want to make on 

25 the -- on the "must" grant point is that in West Texas, our 

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 1 federal courts in El Paso are extremely over burdened with 

 2 narcotics cases from the bridge. It's just ridiculous. 

 3 It's a tragedy. But it is what it is. And having a rule 

 4 that by design allows a Court to keep a case on the docket 

 5 that it really merits dismissal, I think would be a bad 

 6 idea. 

 7 Now, I want to visit briefly on point/counter 

 8 point and I'll be done. As you've heard, the Western 

 9 District of Texas does not use point/counter point. But we 

10 do have a judge in El Paso that uses the point/counter point 

11 approach, and I believe that it is an effective approach. 

12 And again, speaking to some of the comments about why it's a 

13 bad approach, there's been a lot of submissions and 

14 discussions about the fact that ultimately what happens in 

15 this endeavor is that the small litigant, the litigant that 

16 is the least financially secure, or the small practitioner, 

17 is over burdened by this process having to respond to 

18 upteen -- you know, fact findings and things like and making 

19 references to the record. 

20 First to uniformity. That -- I don't find that, 

21 see that in my practice. I believe that as a general rule, 

22 when I've experienced it in this Court -- I've actually 

23 experienced in this Court some serious cases; brain atrophy 

24 case that involved exposure to solvents. That was one of 

25 the -- one of the first that a major client of mine had ever 

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 1 experienced in the United States. And then now currently 

 2 I'm doing a contractural matter with summary judgement 

 3 issues in the same Court. But what I found is that it 

 4 really has forced the lawyers to sit down and evaluate their 

 5 case. It is a lot work? Is it a lot of work. But the way 

 6 I look at it is that the firms that are taking on these 

 7 cases -- when you're sitting down with your client and 

 8 you're doing something as the plaintiff's counsel, or the 

 9 defense counsel for that matter, you have to understand, you 

10 know what the proof is going to require. It shouldn't 

11 strike anyone as any surprise that when it comes down to 

12 this issue, it's going to be a lot of work. But at the end 

13 of the day, I am convinced and -- and through practical 

14 experience through this particular court in El Paso, that 

15 the process ultimately does save time. 

16 There's also been mention in the testimony 

17 previously that, again, focus on fact that this 

18 point/counter tends to disproportionately put heavier 

19 burdens on smaller firms and plaintiffs, and -- and I 

20 respect that position. But there are some districts, like 

21 in El Paso -- I tell my family, watch that movie, The 

22 Verdict. I said, Okay, in Dad's life the plaintiff's firm

23 is the firm with the fancy conference room with the flat 

24 screen TVs, and the defense lawyers are in the library 

25 crawling up the ladder and getting books. 

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 1 In many of the cases that I'm dealing with in 

 2 the court and context, you can't make that generalization. 

 3 But some of these plaintiffs firms are incredibility 

 4 successful and they -- they have lots of horsepower. 

 5 CHAIRMAN MARK R. KRAVITZ: Drive fancy cars. 

 6 CARLOS RINCON, ESQ.: Lear jets. Not just fancy 

 7 cars, but lear jet liners. And we've had a few of those 

 8 come through El Paso. And I've never had too many cases 

 9 against them, but we have -- certainly have had some. 

10 The thing relative to the dispute -- and I 

11 obviously feel that the point/counter point is a good thing. 

12 I think the practice bears importance. The -- the contrary 

13 position has been that, you know, defense lawyers see a 

14 summary judgment, Oh, God, you know, a summary judgment. We 

15 get the bill right before Christmas and we're generally 

16 fulfil the hours. That is not the case. 

17 Again, I -- part of my practice, especially in 

18 the trucking, I work with the insurances, and one of the 

19 things that I have noticed is that, you know, in a world of 

20 dwindling resources, more and more corporate organizations 

21 are becoming increasingly savvy about monitoring litigation. 

22 And there isn't going to be a summary judgment filed in any 

23 of my cases unless we have a briefing with in-house counsel, 

24 they approval the process, we weigh our chances. 

25 And secondly, as part of just any -- you know, 

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 1 case handling procedures, we're required to produce 

 2 litigation budgets. And as expensive as summary judgement 

 3 in practice is, jury trial, and the prep time for jury 

 4 trial, including flying in experts and those types of 

 5 things, still makes up at least 45 percent of the entire 

 6 litigation cost of many of the cases that I handle. 

 7 So those are my accounts. You all have heard 

 8 much of the same information through the various sources. I 

 9 was trying to offer just a unique, personal perspective. 

10 And I really thank you very much for your time. 

11 CHAIRMAN MARK R. KRAVITZ: And -- and listen, even 

12 hearing the same thing, but hearing it from different 

13 perspectives of people who have different practices, and 

14 people who practice in different areas, it's very helpful. 

15 And I thank you so very much. 

16 We have a couple -- 

17 CARLOS RINCON, ESQ.: Yes. 

18 CHAIRMAN MARK R. KRAVITZ: Professor Marcus. 

19 PROF. RICHARD L. MARCUS: Just to cover my bases. 

20 Question: Our list of witnesses indicates that you are here 

21 to talk about Rule 26 as well as Rule 56. 

22 CARLOS RINCON, ESQ.: That is correct. 

23 PROF. RICHARD L. MARCUS: I didn't see anything 

24 about -- 

25 CARLOS RINCON, ESQ.: No, that -- that is correct. 

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 1 I think was Gary Elden -- 

 2 PROF. RICHARD L. MARCUS: Okay. Okay. 

 3 CARLOS RINCON, ESQ.: Or something like that. 

 4 PROF. RICHARD L. MARCUS: Enough said. 

 5 CARLOS RINCON, ESQ.: Thank you very much. 

 6 CHAIRMAN MARK R. KRAVITZ: Thank you. Thank you 

 7 very much. 

 8 Tom Crane. 

 9 MR. TOM CRANE: Judge and Members of the 

10 Committee, thanks for having me. I'm Tom Crane. I work for 

11 a non-profit now. I work with people with disabilities. I 

12 do a lot of employed law. Prior to 2002 I had my own 

13 practice doing employment law and commercial litigation. 

14 When I represent -- when I do employment law, I always 

15 represented employees. I don't have any jets, I don't have 

16 any fancy cars. My cars are typically eight or nine years 

17 old before I trade them in. 

18 I only came here to talk about Rule 56 also, and 

19 I want to talk about the "must" versus "should." That 

20 causes me a lot of concern. In my experience, I don't see 

21 the need make summary judgment more prevailing. It's just 

22 the opposite in my experience. It's been overly -- overly 

23 used. Used too often. 

24 Contrary to some plaintiff's lawyers, you know, 

25 I can -- I can point to one case, maybe two, where the 

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 1 defense lawyer did not file for summary judgement. But 

 2 although otherwise as expected, it always happens. The 

 3 defense lawyers I've heard today -- 

 4 COURT REPORTER: Can you slow down, please. 

 5 MR. TOM CRANE: Sure. 

 6 The defense lawyers I've heard today who have 

 7 not filed summary judgment, I wish they would appear in some 

 8 of my cases because that doesn't happen where I'm from. 

 9 COURT REPORTER: Slower. 

10 CHAIRMAN MARK R. KRAVITZ: Slower. 

11 MR. TOM CRANE: Yeah. Thank you. And I practice

12 here in San Antonio. 

13 Regarding the point/counter point, I've done 

14 that a couple times in different jurisdictions -- 

15 CHAIRMAN MARK R. KRAVITZ: So -- so just to -- to

16 clarify for you, you think that -- to use "must" for summary 

17 judgment? Am I understanding you correctly? 

18 MR. TOM CRANE: I don't -- that's my theory. 

19 CHAIRMAN MARK R. KRAVITZ: Okay. 

20 MR. TOM CRANE: And I -- but I don't see the need

21 to change that. That's my opinion. 

22 CHAIRMAN MARK R. KRAVITZ: Okay. 

23 COURT REPORTER: Regarding point/counter point, 

24 I've done that a couple times, and in my experience it 

25 was -- the uncontested facts was largely irrelevant. It 

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 1 just wasn't used. We submitted it. The defense lawyer and 

 2 I, we both did our uncontested facts, but it was never 

 3 referred to or really used. And in my experience it was -- 

 4 I found it very hard to encapsulate or put in a bullet a 

 5 one- or two-sentence format, things -- relying on inferences 

 6 or frivolity terms. Frivolity terms are hard -- sometimes 

 7 they're regional and you have to explain them to make 

 8 them -- to make a point. So I find it pretty cumbersome and 

 9 difficult to use. Thank you. 

10 CHAIRMAN MARK R. KRAVITZ: Thank you very much for 

11 your time and -- and your views. 

12 And last, but certainly not least, Charles 

13 Miers. 

14 Going once. This is a -- the professors will 

15 know this, if they don't show up, they forfeit their time. 

16 Mr. Miers' -- we will consider his written 

17 comments. 

18 And I want to thank everyone. First I want to 

19 thank the administrative office; John Rabiej, Peter McCabe, 

20 James Ishida. They've done a terrific job organizing this, 

21 dealing with logistics, which is telephones and the like, 

22 and the cabs. And I want to express the Committee's 

23 gratitude to each and every one of you from the 

24 administrative office. Terrrific. 

25 I want again thank the Western -- our host, the 

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 1 Western District of Texas, and all of those who 

 2 participated. Believe me, this process is -- works as well 

 3 as it does, and I do think it works well, because people 

 4 like you take the time to share with us your view. Because 

 5 we do not have all the wisdom, and we need to find out from 

 6 you all in the trenches what's happening and -- and -- so 

 7 that we don't -- do things that make your lives worse and -- 

 8 and not better. 

 9 So I thank you for taking the time. We are 

10 adjourned until San Francisco on -- in early February. 

11 (END OF PROCEEDING, 12:21 P.M.) 

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 1 C E R T I F I C A T E

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 4 UNITED STATES DISTRICT COURT ) 

 5 WESTERN DISTRICT OF TEXAS ) 

 6 SAN ANTONIO DIVISION ) 

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 9 I, Vickie-Lee Garza, Certified Shorthand Reporter, do 

10 hereby certify that the above-mentioned matter occurred as 

11 hereinbefore set out. 

12 I FURTHER CERTIFY that the proceedings of such were 

13 reported by me, later reduced to typewritten form, and that 

14 the foregoing pages are a full, true and correct transcript 

15 of the original notes. 

16 IN WITNESS WHEREOF, I have hereunto set my hand and 

17 seal this 30th day of January, 2009. 

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20 /s/ VICKIE-LEE GARZA, CSR 

 CA CSR #12573, Expires 4/30/09 

21 Firm Registration No. 79 

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