Summary Judgment
Plaintiphobia in the Supreme Court
January 31, 2014
Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations...
January 31, 2014
Through the years debate has raged over whether the Supreme Court’s summary judgment trilogy and Twombly-Iqbal pleading decisions had significant practical effects. To address that question, this article introduces a new empirical measure: the difference between the pretrial-adjudication judgment rates for the defendant and for the plaintiff. Plotting that rates’ difference over time suggests that the cases on summary judgment and pleading, which were far and away the two most major alterations...
Contrasting U.S. Litigation and International Arbitration
October 31, 2013
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions...
October 31, 2013
American litigators know that there is often a tortuous road between the filing of the complaint and trial. The parties’ positions, and how each side views the facts, tend to evolve through the initial pleadings, amended pleadings, motions to dismiss, documentary discovery, depositions, summary judgment motions, pretrial submissions, motions in limine, pretrial statements, trial briefs, and the course of trial itself. It is often not until after discovery is completed and summary judgment motions...
Refusal to Make Offer at Mediation Not Bad Faith
May 29, 2013
Plaintiffs sought sanctions against defendant for refusing to make any offer in mediation while its motion for summary judgment was pending, arguing that defendant should have provided notice that the mediation would be futile. The court denied sanctions, noting that defendant had sent an out-of-state representative to the mediation with full settlement authority, so there was no bad faith. Defendant was helped by the facts that plaintiffs were also mediating an underlying state case with another...
May 29, 2013
Plaintiffs sought sanctions against defendant for refusing to make any offer in mediation while its motion for summary judgment was pending, arguing that defendant should have provided notice that the mediation would be futile. The court denied sanctions, noting that defendant had sent an out-of-state representative to the mediation with full settlement authority, so there was no bad faith. Defendant was helped by the facts that plaintiffs were also mediating an underlying state case with another...
