July 19, 2014

Anton Chekov on Storytelling.

Don't tell me the moon is shining; show me the glint of light on broken glass.

--Anton Chekhov (1860-1904)

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Chekov in Melikhovo, Russia, 1897

Posted by JD Hull at 11:59 PM | Comments (0)

May 09, 2014

Sensitive Litigation Moment No. 26: Crystal, the missing notary.

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Crystal, blowing off work again--and just when you need her.

Not exciting. Just useful. In October of 1976, Congress passed a barely-noticed housekeeping addition to Title 28, the wide-ranging tome inside the U.S. Code governing federal courts, the Justice Department, jurisdiction, venue, procedure and, ultimately, virtually all types of evidence. 28 U.S.C. Section 1746 is curiously entitled "Unsworn declarations under penalty of per­jury".

It allows a federal court affiant or witness to prepare and execute a "declaration"--in lieu of a conventional affidavit--and do that without appearing before a notary. Under Section 1746, the declaration has the same force and effect of a notarized affidavit. Read the 160 word provision--but in most cases it's simple. At a minimum, the witness at the conclusion of her statement needs to do this:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

A "unsworn" declaration with the oath required by section 1746 can be used almost any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion.

Some lawyers who practice in federal courts still don't know about the existence of Section 1746, (probably because so many of us practice primarily in state courts, and we stick to comfortable state practices and folkways). I wouldn't have known about it either; a Justice Department lawyer clued me in on it 20 years ago.

Federal judges understand and accept it. It saves clients, witnesses and lawyers the time, cost and aggravation of getting client statements notarized. Your three notaries--Nadine, Crystal and Raphael the Librarian, together with their notary kits--are in the office like clockwork, except, of course, the very days you need to have them witness and notarize a document. So it's a useful and convenient provision.

Not exciting--but it is one of the few efficient, and reliable, moments anyone sees in the trial process.

Posted by JD Hull at 08:31 PM | Comments (0)

April 11, 2014

Discovery: It shouldn't be a Wankfest, folks.

Trials are always about people.

Even high-stakes business v. business cases before federal trial courts or arbitrations panels abroad will lead your staff to an American Legion hall, a local official, a fire chief, or a beat reporter for a small newspaper.

Before you schedule a deposition, do some informal investigation. Next time a new case begins, resist rushing into written discovery and depositions. Step back from the discovery routine--you'll get into that bubble soon enough--and learn a few things on your own.

This is not a new idea. Over 20 years ago, James McElhaney, a gifted lawyer, writer and teacher of trial tactics, and the ABA Litigation Section, first published McElhaney's Trial Notebook, now in its fourth edition. Discovery, McElhaney noted, is a good way to learn what a witness will say, or to bind a party or witness to a particular version of the facts. But, he continued, it is also "a very inefficient way to get information."

Let us add to that:

Most of the formal discovery you see is worse than inefficient. It is often unimaginative, cookie-cutter, straight-up lazy, wasteful, client-unfriendly and a hopelessly dumb-ass way to learn much of the background information, and many of the facts, that will frame and flesh out your case. This is especially true of depositions, and (for that matter) any other live sworn testimony. If you really don't have to "wing it", don't.

So, hey, think a bit on your own. Prepare--but do that differently.

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Each deposition should suggest a unique set of background questions you can have answered (or partially answered) before you begin. It's just a matter of curiosity and do-it-yourself "trolling" for information you and yours can get first-hand on your own. At a minimum, you'll have a better outline, a better deposition, and an adversary and deponent who knows you show up "ready to play".

Just as witnesses say unexpected and even startling things when they testify, useful and even surprising facts are available about opposing parties and witnesses through the Internet, court files, published cases, local boards and agencies, social clubs with websites, D&B reports, news archives, business libraries and even phone conversations other humans.

No, don't hire an investigator for this right away. You and your staff can handle this with a little verve and common sense, save money, and get steeped in the case.

It's fun. Roll up your sleeves. Un-weenie yourselves.

And why use deposition time to learn things you and yours can learn quickly and inexpensively and lash together from: phone calls, live humans, your client, client employees, ex-girlfriends, ex-husbands, ex-bosses, bartenders, town drunks, libraries, the Moose Lodge, store clerks, hopeless gossips, old dudes in cafes who drool on their shirts, neighborhood urchins, newspaper reporters--and even the most rudimentary Google search?

These inexpensive but ignored sources are often inconsistent with information parties will give about themselves in formal discovery.

The upshot?

1. Don't take the deposition at all. You may not need to take that deposition.

2. Take a much better and shorter one--and do much better written discovery requests. If you do take it, you will take a better one. You won't need to waste time asking about things which are easily ascertained beforehand. If you serve written discovery before depositions--you generally should do it before--your interrogatories and requests for documents under Rules 33, 34 and 45 will be much better. (Formal written discovery, in my view, is of even poorer quality and even less informed than most depositions taken.)

3. If you need to, confirm what you have learned with a quick series of leading questions. Anything that you have learned about the deponent from investigation and informal discovery, and that you need to confirm--i.e., work history, education, past events in the news, addresses, past titles, ex-employees, mistresses, ex-wives, published sonnets, tastes in biker bars, and current businesses and business associates? Go over it and confirm quickly at the outset (or at the right interval for that information) with the deponent.

Posted by JD Hull at 12:59 AM | Comments (0)

January 14, 2014

Sensitive Litigation Moment: Walken v. Hopper.

Posted by JD Hull at 11:51 PM | Comments (0)

December 20, 2013

Think like a client. The trick now is to win cheap.

For an experienced client, the cost of the lawsuit is part of the "victory" analysis. So is closure--or just getting it over with.

In America, the state and federal trial courts of record--rather than arbitration panels or mediation (which we Americans group together under the heading Alternative Dispute Resolution, or "ADR")--are still the "poison of choice" to resolve commercial disputes. That is likely to be true for a long time.

True, also, that our courts in the U.S. give even civil litigants (a) due process rights, (b) pre-trial access to the discovery of evidence, and (c) opportunities to present evidence at trial--each on a scale the world has never known before. While that "experience" is often tainted with inefficiencies and waste, it is at least predictable. Litigants generally accept the risks of what can happen to them--through flukes, brilliance, or the triumph of moral order in the universe--in American courts.

However, the "bad news" here is also considerable--and, of course, predictable. Business litigation in the courts is (a) extremely expensive, (b) highly disruptive to clients reps and witnesses, many of whom are managers or workers, and (c) very lengthy from start to finish. Even the "winning" client generally loses--and loses a lot in terms of resources and time.

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However, our enduring global recession (or "new normal", perhaps) is certainly a good time for business clients to push for ADR (including mediation) over litigation. Not because ADR is cheaper, faster and better; often it's clearly not advantageous in any of those three ways.

It's simply because the cases you defend in struggling economic times can be more marginal from a merits standpoint. And that's exactly where ADR can really help. Even if you don't love ADR in America, or you were trained for full-blown trials.

Say you've just been handed a case to defend in an American court that is poorly-grounded, weak or otherwise insubstantial. A weak employment discrimination or wrongful discharge action (I call it the the "un-classy firing" suit). Or a flimsy business case dressed up as an unfair competition or infringement action (the "it's-weak-but-let's-see-what-happens" suit). Down-on-their-luck David & Son, with hungry counsel, v. Flatfooted Goliath, Inc., your client and a deep pocket.

The stars seem to be aligned in Goliath's favor.

Not only does your client Goliath have more resources, and the case filed against it is transparently contrived and weak, you are assigned to a real judge. Your firm is before a scholarly, honest, sane jurist with people sense, and loved by all. Your research suggests that the judge is business-savvy in rulings, and takes a dim view of iffy cases.

So you think you will win your case on a dispositive motion (and you do, eventually). You are right on the merits--and any law professor in the U.S. would agree with you. The "case" your long-time GC just handed you is silly, right? And a piece of cake. A cinch. Almost beneath you, you tell yourself. An "easy win", right?

Well, think again, Skippy.

Your GC couldn't have hired you to do anything more difficult. "Winning" just took on a new and more complicated meaning. Because now--especially if you were just handed a defense counsel's dream and stone "winner" of a case--you will have to work harder, and be smarter, than if you were defending a good faith or meritorious suit in which your client had the lion's share of bad facts.

The trick now is to win cheap*. An easy-to-win business suit handled by the most efficient defense counsel on earth can have defense fees and costs well over $100,000, even with minimal or no discovery. You really think that your GC or client rep will be happy the day you tell him or her about your great win on all counts based on your brilliant Rule 12(b)(6) or Rule 56 motion?

Don't bet on it. For the experienced client, the cost of the lawsuit is part of the "victory" analysis. So is "closure"--or just getting it over with. In a down American economy, litigation tends to increase. More suits are filed. And in my view clients and their plaintiff's lawyers file more questionable suits, i.e., ranging from Rule 11 violations and frivolous to iffy and wasteful. Employee and business nuisance cases are a big chunk of those filings.

A good arbitration panel or mediator will cut to the quality of the suit and its likelihood of success quicker than even the best American judges, who often feel obligated to give bad and iffy cases a wide berth. And good judges understand the problems of the business community and the utility of arbitration and mediation. Get jurists on your side in your attempt to drive iffy cases into ADR.

*Better to have "no lawsuit" than a great case or defense.

Posted by JD Hull at 12:00 AM | Comments (0)

December 10, 2013

CPR's Global Accelerated Arbitration Rules.

Choose to use them. They're aggressive and "get-it-done", in both letter and spirit. Global Rules For Accelerated Commercial Arbitration, of the CPR Institute. Best two features: (1) The default position is a sole (one) arbitrator. (2) Arbitrators should make award ASAP and in any event within six months of formation of the tribunal.

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Posted by JD Hull at 11:59 PM | Comments (0)

November 17, 2013

The Eddie Haskells of Litigation.

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You know any law firms like this?

Posted by JD Hull at 10:36 PM | Comments (0)

October 25, 2013

Sensitive Litigation Moment No. 114: In planning depositions, resist The Uninspired, The Lazy & The Half-Baked.

Do some common sense work before you take a deposition. And please don't squander the client's budget out of sheer laziness. You are paid to work on planning discovery, too. See this one.

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"Do these guys ever think before they work?"

Posted by JD Hull at 12:59 AM | Comments (0)

October 11, 2013

Worship This: The Holy Surprise of a Child's First Look.

He was a loner with an intimate bond to humanity, a rebel who was suffused with reverence. An imaginative, impertinent patent clerk became the mind reader of the creator of the universe, the locksmith of mysteries of the atom and the universe.

--from Einstein: His Life and Universe (Simon & Schuster, 2007) by the Aspen Institute's Walter Isaacson, former Time managing editor.

Most of us are missing it all. --WAC/P?

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"E" at the beach: Another fresh take.


Try this at home and work: The Holy Surprise of a Child's First Look. Forget for a moment, if you can, about Clients and Paris.

WAC/WAP? is at heart about Quality, Old Verities, and Values--the things no business, government, non-profit group, religion, politician or leader (a) wants to give you or (b) can give you. No, not even family and friends can.

You have to find them on your own. Work and Service, whether you are paid for them or not, are inseparable from these things.

At this blog, at our firm, and in our lives, we seek (in the largest sense) serious overachievers, and aficionados of life, past and present: identifying them, learning from them, having them as friends, hiring them and, above all, never holding them back.

It is often hard to find these people--or even to remember that they once existed.

We do, after all, live in a cookie-cutter world. Originality, intuition, authentic spirituality, and even taste are not valued--these traits are often feared and attacked--in most of the West.

This is especially true in America, where we continue to be geographically, culturally and (some think) cosmically isolated. The United States, despite its successes, high standard of living and exciting possibilities, has become world headquarters of both moral pretension and dumbing life down.

Besides, fresh thinking leads to painful recognitions. It's easier to let something else do the thinking for us.

"Fragmentation" is a word some people (including those with better credentials than the undersigned to write this) have used for decades to describe modern humans all over the world: lots of wonderful, intricate and even elegant pieces--but no whole.

So, in our search for coherence, we look for clues.

We look to television, advertising, and malls. To work, and to professional organizations. To secondary schools, universities, and any number of religions (none of the latter seem "special"--they say identical intuitive and common sense good things, but just say them differently), and to an array of other well-meaning institutions.

In fairness, all of these have their moments (hey, we all like our insular clubs).

And, importantly, we seek answers from others we know and love--family and friends--who have been soaked in the same messages and reveries, who make us feel comfortable with the same choices, values and lives that gnaw at us all in rare moments of clarity and solitude, and who are able to "reassure" us so we can get back "on track".

So what's missing?

It's Imagination.

Children come with Imagination. It's standard issue. Some lucky adults hold onto Imagination, even as it is bombarded with a tricky, confusing, and lob-sided mix of messages favoring mediocrity over quality. Until Imagination becomes a value in and of itself, a lot us will "shuffle off" life on earth without even knowing what happened in the past 80-odd years.

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Elsa and "E" in 1920: They want you to think on your own.

We denied ourselves (a) thinking our own thoughts and (b) acting on our own. We would not even fight for these qualities. We would not take chances. We built, embraced and often defended a Cliff's Notes life. We were uninspired, desperate to fit in, and frightened. We "missed it".

We missed it All--like drunks who slept through the Super Bowl.

Our children, friends and people who respected and loved us even took notes on what we thought, said and did here as "spiritual beings" having a "human experience. They emulated us. That means you and me, Jack. How do you feel about that? Oh well. Next time, maybe?

Which brings us, finally, to Albert Einstein.

True, few of us can have Einstein's talent for Western logic, or his IQ. But Einstein's advantage over other physicists may have been that he was a "new soul". He looked at everything as if he were seeing it for the first time. Imagination.

Take work. He approached it from a wellspring of joy. There are, and have been, others like Einstein in that respect. Those are the kind of people we want as friends to inspire us, and as co-workers to solve clients' problems. His IQ and genius is not the point. We'll take an IQ a lot lower than Einstein's (for associates, though, Coif or Law Review would be nice).

Reverence and a child's awe. Imagination. That's the outlook we prize here at WAC? Energy, intensity and creativity always seem to come with it. If it comes with serious brains, we'll take that, too.

From past posts, and with grateful nods to Samuel John Hazo and Cleveland's Peter B. Friedman.

Posted by JD Hull at 11:00 PM | Comments (0)

February 24, 2012

Bongs at Work: Dude, the Doritos are key. Screw the due diligence. Service via Facebook.

At Reuters India, see "For Optimal Work Commitment, Skip the Pot?". It begins:

(Reuters Health) - According to a real shocker from the world of bona fide science, smoking marijuana is tied to less motivation at the office.

The author of the study said it can't prove whether that's due to the drug's effects, the social environment in which it's used or whether pot smokers are just more likely to be laid-back from the get-go.

Though researcher Christer Hyggen suspects pot is the culprit, another possible explanation is that people who aren't so happy with their work situation or motivated on the job are more likely turn to drugs.

"There's a popular belief that people who smoke cannabis are slackers and that they don't want to work," Hyggen, from the Oslo-based social research institute NOVA, told Reuters Health.

To see how well that perception held up, he analyzed data from a 25-year-long study of close to 1,500 Norwegians. Starting in 1987, when they were in their late teens and early 20s, participants filled out surveys that included questions on their recent pot use on five different occasions, into their 40s and....

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Brad Pitt at work as Floyd in "True Romance".

Posted by JD Hull at 12:00 AM | Comments (0)

October 14, 2011

Sensitive Litigation Moment: Be There 24/7--or Give Walmart a Shot.

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Lord Chief Justice Sir John ("Pompous") Popham, circa 1603

Lawyers aren't special. We're in a service business. We are not royalty. Get used to it. Rule 9: Be There for Clients 24/7. Returning telephone calls promptly and keeping your client "informed" is not client service. Color all that barely adequate. Get a new standard.

Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (0)

September 04, 2011

Sensitive Litigation Moment #24: Is "Professionalism" a Convenient Dodge for Law Cattle?

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Professionalism? What does it really mean?

So what about "professionalism". Is professionalism a vestige of an insular and ancient pageantry Western lawyers still engage in to feel special in an increasingly commoditized profession? Or does it have some utility?

Maybe the answer is both. But let's at least look at it freshly, and like people living in at least in the 18th century.

On closer inspection, real professionalism--generally thought of as a combination of day-to-day practical courtesies extended to fellow lawyers, and a noble tone in all that is said and done--may have little or nothing to with lawyers, and with benefiting lawyers. And have everything to do with clients, and benefiting clients instead.

Maybe the entire subject as traditionally regarded is either outdated, for lack of a better word, misplaced.

Shouldn't professionalism be 99% about clients? Some questions:

(1) What is Professionalism in the field of law, anyway?

(2) When does it help the doing of work?

(3) Was it ever intended to benefit anyone but the client? (Sometimes, professionalism certainly benefits lawyers in a way that can greatly benefit, even if indirectly, their clients.)

(4) Do we lawyers cry "professionalism" in a way that conflicts with our clients' interests--or simply as a pretext, or dodge, to excuse themselves from doing their jobs at a higher level?

(5) If so, what can we do about that?

For some of the answers to these questions, see reprinted from a 2005 "Law Week edition" of The San Diego Daily Transcript, the article "Professionalism Revisited: What About The Client?". It ends with "rules of professionalism"--but from the client's perspective. Excerpts from Rules 1, 5 and 6:

1. We come first. Be nice--but if in doubt, use the rules. If you feel you know the lawyers you are dealing with, we will follow your advice and instincts. If you are in doubt about the lawyers, or if it might compromise us to deviate from the formal procedural rules, please stay close to those rules.

5. If you have, or would like to have, a personal relationship with opposing counsel, that's fine, but don't let the relationship hurt us--the client. We don't care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.

6. If opposing counsel shows animosity toward you for following the procedural rules and keeping things moving, that is tough. This is not about the lawyers. We hired you to represent us. We would like you to get this done. Again, as your client, we seldom think that aggression and persistence are "unprofessional".

Posted by Holden Oliver (Kitzbühel Desk) at 12:59 AM | Comments (2)

August 04, 2011

Sensitive Litigation Moment #1: In Federal Courts, Use Declarations--not Affidavits.

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Crystal, The Missing Oversexed Boozy Notary.

The rule is very handy here: your three oversexed resident notaries--Nadine, Crystal, and Little Sammy the Librarian--are in the office every day without fail, together with their goofy little notary kits, except the exact few days each year you need them to notarize something.

Not exciting. Just useful. In October of 1976, Congress passed a barely-noticed housekeeping addition to Title 28, the wide-ranging tome inside the U.S. Code governing federal courts, the Justice Department, jurisdiction, venue, procedure and, ultimately, virtually all types of evidence. 28 U.S.C. Section 1746 is curiously entitled "Unsworn declarations under penalty of per­jury".

It allows a federal court affiant or witness to prepare and execute a "declaration"--in lieu of a conventional affidavit--and do that without appearing before a notary. Under Section 1746, the declaration has the same force and effect of a notarized affidavit. Read the 160 word provision--but in most cases it's simple. At a minimum, the witness at the conclusion of her statement needs to do this:

"I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.

A "unsworn" declaration with the oath required by section 1746 can be used almost any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion.

Many lawyers who practice in federal courts don't know about the existence of Section 1746, (probably because so many of us practice primarily in state courts, and we stick to comfortable state practices and folkways). I wouldn't have known about it either; a Justice Department lawyer clued me in on it 15 years ago.

Federal judges understand and accept it. It saves clients, witnesses and lawyers the time, cost and aggravation of getting client statements notarized. Your three notaries--Nadine, Crystal and Raphael the Librarian, together with their notary kits--are in the office like clockwork, except, of course, the very days you need to have them witness and notarize a document. So it's a useful and convenient provision. Not exciting--but it is one of the few efficient, and reliable, moments anyone sees in the trial process.

(from past posts)

Posted by JD Hull at 12:00 AM | Comments (0)

May 18, 2011

Sensitive Litigation Moment No. 15: Is "Professionalism" a Smokescreen for Bad Lawyering?

Professionalism--like good crops, the flag and motherhood--is indeed hard to criticize. It is also tough to define. Is it always good for clients? Can it even hurt them?

Weenie Alert: It's not about the lawyers anymore. In litigation, and in other contentious projects, does the practice of routinely and without question granting extensions, expanding deadlines, and saying "yes" to an adversary's requests for an accommodation really help clients? Or are such courtesies merely effete and provincial folkways that take the focus off the main event: solving problems for clients as expeditiously as possible? See "Professionalism Revisited: What About the Client?" in San Diego's The Daily Transcript of April 29, 2005. Has anything changed in five years?


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Bar association meeting, San Diego. Pick any year.

Posted by JD Hull at 11:59 PM | Comments (2)

May 16, 2011

Sensitive Litigation Moment No. 14: Remember arbitration? How was that supposed to work, anyway?

Is there a way to stop feeding the monster? It's clear that both globally and in the U.S., arbitration and "ADR" have defeated the goals of Faster, Cheaper, Better. See, e.g., ABA Journal (April 2010) "International Arbitration Loses Its Grip". Any ideas on how to fix it? We need a system that works for clients--we already know it "works" for outside law firms--in business-to-business disputes. Why not have contract clauses that, regardless of the amount at stake, stipulate to one (1) panelist and require a decision in six (6) months?

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Arbitration: Did it get as bad as the disease?

Posted by JD Hull at 11:23 PM | Comments (2)

May 06, 2011

Sensitive Litigation Moment No. 7: The Holy Surprise of Rule 56(d), Fed. R. Civ. P.

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Disruptive as Hell: The "early-in-case" Rule 56 motion (note well-dressed Brit GC after taking a bullet here).

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

Another Sensitive Litigation Moment. Trial lawyers know that Rule 56 of the Federal Rules of Civil Procedure, or summary judgment, gives a litigant an opportunity to win on its claims or dispose of the opponent's claims relatively quickly and without trial. Accompanied by sworn affidavits, and most often discovery responses, a Rule 56 motion tries to show that there is no real dispute about key facts and that the movant is entitled to judgment under the law.

If the trial court grants it, the movant wins on those claims.

But what if a summary judgment motion is brought against your client--suddenly and out of the blue--and the local rules (or local folkways and practices) of the district court don't give you much time to develop and prepare an opposition. After all, Rule 56 lets a party who has brought a claim file for summary judgment after 20 days, and defendants can file "at any time".

In contentious, high stakes litigation, a quick summary judgment motion right after the commencement of a lawsuit can be extraordinarily disruptive--no matter how it is resolved by the district court. It will fluster even the most battle-hardened-been-there-seen-that GC or in-house counsel.

And it's an expensive little sideshow, too.

Subdivision (d) of Rule 56, "When Facts Are Unavailable to the Nonmovant", provides a safeguard against premature grants of SJ. Lots of good lawyers seem either to not know about--or to not use--subdivision (d) of Rule 56.

In short, you file your own motion and affidavit--there are weighty sanctions if you misuse the rule, so be careful--stating affidavits by persons with knowledge needed to oppose the motion are "not available", and stating why.

The district court can then (1) deny the request and make you oppose the motion, (2) refuse to grant the motion for SJ OR do what you really want it to do: (3) grant a continuance so that you can develop facts and, better yet, take depositions or conduct other discovery.

Granted, it's a delay-oriented rule, but if used correctly, Rule 56(d) can give you the breathing room and time you need to develop the client's case, and avoid the granting of summary judgment against it.

Note: An ATL reader caught our mistake in failing to recognize the renumbering and rewording of Rule 56(f) to 56(d) by the Advisory Committee. We appreciate it--and the correctly numbered subdivisions should now appear above. The crux of subdivision (f) was carried forward into (d), effective December 1, 2010. Thanks, sir. You are correct if pseudo-anonymous. But we were wrong.

Posted by JD Hull at 11:59 PM | Comments (2)