Summary Judgment — Rulemaking

On January 29, 2007, the Advisory Committee on the Federal Rules of Civil Procedure is holding a mini-conference in New York to address possible amendments to Rule 56. The concern is the perceived disparity between practice and the text of the rule. The most significant revision would require: (i) the moving party to file a statement of undisputed facts on which it is relying, (ii) the adversary to file a paragraph-by-paragraph response to each fact asserted to be undisputed, with an opportunity to introduce additional facts, and (iii) the moving party to reply in like fashion.

This process of dueling statements of undisputed fact is already required in many district courts and is one of the most expensive and pointless procedures imposed on the litigants, at least in cases of any consequence. Opponents are always wary of conceding something inadvertently, and they look for the most fragile adjective in each paragraph of a statement of undisputed fact as an excuse to object to the paragraph. Absent this requirement, assertions of fact made by one party in an affidavit may simply be ignored by the opponent -- or quibbled with only at the margin, an implicit admission. Mandating statements of undisputed fact because they have a lengthy history in many districts is a prime example of why good intentions so often significantly increase the cost of litigation. (GPJ)

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