I was noticing on the schedule for SCO v. Novell that tomorrow is the day to file the Final Pretrial Order. Here's an example of one [PDF], and some instructions [PDF] so you know what it is. Here's Utah's form. Very clear and precise.
As you can see, it's the parties who do the heavy lifting in preparing it, supposedly together. I'm sure that is nothing but fun for them. All the lists that we've seen filed last week and this week make up a good chunk of what it's about. As you can see from the form, it basically organizes the litigation conceptually and logically so the judge knows what it is all about. It gives him a ruler, so to speak, and the parties are supposed to try to follow this layout of how things will go with respect to witnesses and exhibits to be used. Both sides have already told the court that they may amend their lists, though, so this is a final pretrial order in name only. You'll like the last question, and I confess I look forward to seeing how they fill in that blank in answer to the question as to what are the possibilities of settlement, good, fair, or poor? I'd say, slim to none.
As we get closer to the trial date on September 17, though, I find myself getting more and more antsy about when we will get rulings on the summary judgment motions.
I know you probably would like me to explain why we haven't seen them yet, but I really have no idea. I'd only be guessing, but I confess that I check frequently and have others do so, because it seems logical that we'll see them soon. The purpose of a summary judgment motion, after all, is to avoid a trial if one isn't needed.
I found an this article by an attorney on how to write summary judgment motions successfully. He, George Lenard, specializes in employment law, and within that he specializes in representing employers, but summary judgment motions are what they are, so it applies mostly to any litigation. He says he loves doing summary judgment motions, and it shows. He also explains that there are some times when you wouldn't want to ask for one:
In employment cases, plaintiffs almost never seek summary judgment; defendants almost always do. Why?
Defendants (employers) have reason to fear going to trial before a jury; they avoid this with summary judgment. Employment law is often quite favorable to employers, but juries often decide cases not by strict application of legal doctrine, but based on whether they think the employee got treated poorly or unfairly. At least that's what defense lawyers fear. Judges are often quite motivated to avoid having cases go to trial, and we hope they are willing to focus on applying the law when reviewing these motions, even if it means leaving a sympathetic plaintiff out in the cold.
That raises a deeper question: if juries are the buffer between us and the strict and literal application of the law, and they are, then why would you want a judge to get in the way of that? If you represent a fired employee, you might well prefer a jury:
So employers want to avoid juries, as a rule. And plaintiffs want to avoid summary judgment. If they have a strong case, they'd rather not seek summary judgment in their favor, but prefer to go to a jury, hoping for the "lawsuit lottery" big punitive damages award.
Interesting, no? The rest is too, particularly the part where he explains how to make it look like there are no material facts in dispute when in employment cases, there are always conflicting accounts of what happened, so I encourage you to read it all. But that's looking at things from the perspective of the parties. What about the judge? Is there any benefit to a judge one way or another? When might he be inclined to rule himself on summary judgment motions and when might he be more inclined to let matters go to trial?
This discussion among some lawyers on the Empirical Legal Studies blog is on that very subject. The guest blogger, Jeff Yates, kicks off the discussion by asking if there are any studies on judicial decision making on summary judgment. The discussion notes two benefits of judges ruling on summary judgment motions: it clears the decks and avoids lengthy trials, and judges usually are overloaded with cases. So that is one advantage, and there is another: One commenter says, "I may be saying something obvious but my thought on the question Stephanie raises above is that there are two reasons district judges like summary judgment. One is, as she says, efficiency; to clear their dockets. Trials are time consuming and there's a lot of pressure on judges to stay off the 120 day lists -- which is a lot easier to do if you don't have too many trials. But the other is a point that Steve Burbank has made a few times -- that judges LIKE deciding cases; they like making law."
You'll remember how the judge in the Red Hat case in Delaware momentarily woke up in March of 2006, like the Dormouse at the Mad Hatter's Tea Party, when she realized that the case was still pending and so she'd have to write up a report on it. That poured a little hot tea on her nose, but the effect was momentary, as she dozed off again and we haven't heard from her since. I'm just teasing. Neither side cares at this point that the case has been stuck as in treacle ever so long now, waiting for the IBM case to finish, but of course it is on hold now and can't pick up again until the Novell case is decided. So Delaware is probably over, in our lifetimes anyway, at the rate things are going. "'At any rate I'll never go there again!' said Alice as she picked her way through the wood. 'It's the stupidest tea-party I ever was at in all my life!'"
In some ways, as another lawyer in the ELS discussion points out, it is easy to just let it go to a jury. It means fewer decisions of yours that are appealed, after all. And if it is a jury making a decision, the litigant that loses isn't mad at the judge. That has to be an advantage. Don't think judges don't think about things like personal safety, although usually in connection with criminal trials. Here's testimony on the need for increased security for federal judges that the Chief Magistrate Judge for the District of Utah, Samuel Alba, provided Congress in 2005 regarding some experiences he and others had endured. So that's one factor. Even in a civil trial, there might be influences that weigh in favor of letting the jury handle it.
But if a judge has a strong view of how a case should be decided, a judge might not wish to leave it to an uncertain jury decision. There seems to be a trend toward more summary judgments and less jury trials, according to Yates:
I was especially intrigued by Harvard law professor Arthur Miller's article in the NYU Law Review - "The Pretrial Rush to Judgment: Are the 'Litigation Explosion,' 'Liability Crises,' and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?" (2003). It brought up some things that I had thought about during my attorney practice years and had continued to think about during my years of looking at courts from a social science perspective. I won’t go into a full recap of his excellent 150+ page article, but he is basically concerned with the shift in responsibility between jurors and judges in making determinations of fact. He (along with other scholars) even suggests that such a shift, via expanded summary judgment, might undermine the Constitutional right to a jury trial. Certainly, expanded use of summary judgment has important implications for citizens' access to justice.
Here's the paper [PDF] referenced, if the subject interests you. Some judges were interested enough to quote it in orders. Here's one, a case on appeal in Maine where there was an appeal of a summary judgment:
Recently, liberal use of summary judgment practice to resolve factual disputes regarding motivation or intent—almost always in favor of a defendant—has been sharply criticized as violative of both the basic purpose of the summary judgment rule and the essential right to a trial by jury guaranteed by our state and federal constitutions  and our civil rules.  Arthur R. Miller, one of the preeminent civil practice scholars of our time, observes that: "Overly enthusiastic use of summary judgment means that trialworthy cases will be terminated pretrial on motion papers, possibly compromising the litigants' constitutional rights to a day in court and jury trial." Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Cliches Eroding Our Day In Court and Jury Trial Commitments? 78 N.Y.U. L. Rev. 982, 1071 (2003).
And the appellate panel in fact decided that the case should go to trial after all.
I confess I hadn't thought of this angle at all. But it certainly is true that I'd rather be tried by a jury than a judge, and that's despite really liking Judge Dale Kimball quite a lot. But there is something about putting a group's thinking together that just works. So now I don't know what I want.
No, I do. I want this SCO saga to be over. That is, of course, the one thing we can't have, no matter what decisions Judge Kimball makes. If he grants summary judgment motions of Novell's, surely SCO will appeal. If he refuses, then we must plod through the trial. Well, not plod. It's going to be really, really exciting to watch. That's the human element. I bet sometimes judges let things go to trial in cases with really world-class lawyers just for the fun of it.