George Washington Law Review has published an article titled, appropriately, Against Summary Judgment. The premise of the article is that summary judgment is an archaic procedural device that usurps the role of the jury.
I find particularly annoying this premise of the article: summary judgment is bad because most cases that now go to summary judgment would settle early rather than go to trial. In other words, cases that should fail because they have not stated a claim under the law will still settle because the defendant will want to avoid the risks and costs of litigation.
Setting aside offensive summary judgment for a second which is an important tool in a plaintiffs’ lawyers arsenal, I’m a personal injury lawyer who would theoretically benefit from such a paradigm shift in jurisprudence. What a great system for tort lawyers, right? You get paid on all claims, not just the just claims. Can’t get a doctor to support your claim that the injuries from the car accident are related to the plaintiff’s injuries? Who cares? Let a jury decide or, better yet, try to induce settlement because the defendant does not want – for whatever reason, including litigation costs – to go to trial.
Not All Things That Help a Plaintiff Helps All Plaintiffs
It is a home run with one little victim: justice. It is not fair for defendants to fight claims that are not really legitimate claims because the law does not allow them. If you file a lawsuit and don’t have a case the law supports, that claims should be dismissed as quickly as possible. Moreover, it unfairly lessens the settlement value of legitimate claims brought by victims who are both hurt and have a real cause of action under the tort laws we have agreed upon as a society.
When justice is not done, it hurts the next plaintiff. Summary judgment in cases without merit reduces litigation costs
When you think about it, the mirror image of this insanity is capped non-economic damages. Cases that should not be brought should be dismissed; juries verdicts in meaningful cases should stand without nullification by a damages cap.
Summary Judgment Law Modifications
I’m more receptive to this Yale Law Journal article that argues for modifications to the law governing summary judgment. They argue for sanctions for motions for summary judgment that fail (and greater sanctions for frivolous motions) and evidence preclusion for evidence not raised in their motion.
I have an even softer proposal. Lawyers who file unsuccessful motions for summary judgment cannot bill their clients for time spent drafting the motion (or, better, they have to donate the money to the Maryland Volunteer Lawyers Association).
The point of this would be to have a chilling effect on motions that the defense files merely to impose a cost on the plaintiff and her lawyers. Defense lawyers will still file motions for summary judgment they think they might win. But it would eliminate the nonsense motions.
- Example responses to a motion for summary judgment