University of Denver

Managing Dispositive Motions for Fairness and Efficiency

Judge, Superior Court, Maricopa County, Phoenix

I wrote lots of summary judgment motions in the day. Partial motions and total motions. One-issue motions and complex motions. Early motions to smoke out legal theories. Late motions to knock out claims before trial. Deciding what dispositive motions to file and when was a big part of my litigation strategy.

I see things a little differently as a judge. Yes, dispositive motions can help focus the issues for trial, or prompt pre-trial rulings that aid settlement. And occasionally a motion truly is case-dispositive. But often they make litigation slower and more expensive without any corresponding gain in fairness or efficiency.

Done right, summary judgment expedites the just resolution of a case—that’s the whole reason we have Rule 56. Our challenge as judges and lawyers is to make dispositive motion practice advance that purpose. While lawyers have traditionally filed such motions if, when, and as often as they pleased, this is a recipe for excess or—worse—abuse. Dispositive motions work best when they are part of a plan for moving the case toward resolution.

This is the overarching theme of Efficiency in Motion, IAALS’ report on dispositive motion reform.

One of IAALS’ key recommendations is that judges actively manage dispositive motion practice including, where appropriate, holding pre-motion conferences. As a state court judge, this is both promising and daunting. In the big cases—say, wrongful death or high-dollar commercial litigation—a motion conference will save time in the long run. But for many judges with high caseloads, it is impractical to do this in every case.

One thing that can be done in all cases is imposing a presumptive one-motion-per-side rule. That is, each side may file only one summary judgment motion (of limited length) as a matter of right. This forces lawyers to choose between an early motion and one filed near the close of discovery. No more second-bite motion filed a year after the first-bite motion was denied. But if a case really warrants additional motion practice—if multiple motions really will promote fairness and efficiency, and not just someone’s litigation strategy—the lawyers can seek leave of court.

This approach lets the judge actively manage dispositive motions when necessary, while imposing a fallback rule in other cases that prevents motion practice from getting out of hand. And it doesn’t have to come from the judge. Lawyers who want to constrain expense in a low- or medium-dollar lawsuit can agree to these restrictions at the outset of the case. This, too, is motion management.

Another strategy for managing dispositive motions is to order that no response is filed unless and until the judge orders it. This lets the judge triage a motion before the responding party incurs the cost of responding. After a first look, the judge may decide full briefing is merited, or that it should be deferred pending further discovery. Some motions will be unwarranted on their face and denied without a response. Others will scream out for a pre-motion management conference.

As someone who enjoyed the chess game of motion practice as a lawyer, I know motion management takes some of the fun out of summary judgment motions. But it’s a small price to pay. As Plutarch said: “Though boys throw stones at frogs in sport, yet the frogs do not die in sport but in earnest.”