Defending Against Summary Justice: The Role of the Appellate Courts

This paper, which was delivered at the Pound Civil Justice Institute 2008 Forum for State Appellate Court Judges: Summary Judgment on the Rise: Is Justice Falling?, looks at the conversation about summary judgment, with its emphasis on values of justice and efficiency and its background of liberal approaches to pleading, discovery, and admissibility of evidence. It continues with a discussion, in Part II, of the evolution of judicial attitudes about summary judgment; judges now widely view summary judgment as an integral part of civil procedure. Part III considers arguments on the constitutionality of summary judgment practice. It considers Professor Suja Thomas novel argument, primarily on historical grounds, that summary judgment is inconsistent with the United States Constitution's guarantees of trial by jury. It then discusses other academics' arguments, some of whom oppose the use of summary judgment and some of whom do not, that whether or not Professor Thomas is correct, that it is unlikely that constitutional arguments will bring down the present summary judgment regime. The paper continues, in Part IV, with an examination of the U.S. Supreme Court's 1986 summary judgment "Trilogy" - the Celotex, Anderson, and Matsushita decisions. In liberalizing summary judgment practice, the Court employed language that appears to invite trial court judges to consider matters previously considered inappropriate as grounds for non-trial disposition. Among them are the parties' burdens of proof, the quantum and quality of the nonmovant's evidence, differences in the substantive law of the case, and the "plausibility" of the non-movant's legal theory. Next, Part V examines the Supreme Court's second important "Trilogy" of cases that, between 1993 and 1999, informed the present stance of the federal courts on appellate review of summary judgment rulings. The Daubert and Kumho decisions interpreted the Federal Rules of Evidence to authorize federal district court judges to carry out a "gatekeeper" function with regard to all forms of the expert testimony on which most serious civil litigation depends. In its third decision, Joiner, the Court rejected the notion that the Seventh Amendment right to jury trial justified a "hard look" by appellate courts at trial court decisions to exclude expert testimony, which, in turn, often virtually dictate grants of summary judgment. Finally, in Part VI, the paper considers what state appellate courts might do in future summary judgment cases in the exercise of their independent duty to give justice to the litigants before them. This part notes that most state courts now employ a summary judgment regime that is close to the approach of the U.S. Supreme Court's 1986 Trilogy. In addition, there are ever-present docket pressures; legislatures have made state legal systems more defendant-friendly; and there are national and local campaigns to make summary judgments even easier to obtain; to harden pleading requirements; and to make it more difficult for litigants to avoid dismissal before discovery can even begin. Yet, the state courts have not marched in lockstep behind the Supreme Court in the area of expert evidence, and there is still ample room for them to reexamine their summary judgment regimes with an eye to protecting the right to jury trial. To assist in that endeavor, the paper offers a concise list of options open to state appellate judges to consider in ensuring the fair administration of justice.