(excerpted from Manual for Complex Litigation, '95 ed.)
21.3 Management of Issues
.31 Relationship to Discovery
.32 Pleading and Motion Practice
.33 Identifying, Narrowing, and Resolving Issues
.34 Summary Judgment
21.31 Relationship to Discovery
The sine qua non of management of complex litigation rests on the
definition of the issues in the litigation (see infra section 21.33).
Unless the controverted issues have been identified and defined, the
materiality of facts and the scope of discovery (and later of the trial)
cannot be determined. The pleadings, however, will often fail to define
the issues with clarity, and the parties may lack sufficient information
at the outset of the case to enable them to arrive at definitions with
certainty. Probably the most important function the judge performs in the
early stages of litigation management is to press the parties toward
identification, definition, and narrowing of issues.
The initial conference should be used to start this process. Efforts to
clarify and narrow the issues may be met by resistance from the
plaintiffs, the defendants, or both plaintiffs asserting that
substantial discovery must first be conducted, and defendants contending
that plaintiffs must first refine their claims.
Nonetheless, the judge must start the process of defining and structuring
the issues, albeit tentatively, to establish the appropriate sequence and
limits for discovery. Although some issues may surface only after
discovery is underway, the controlling factual and legal issues can
almost always be identified by a thorough and candid discussion with
counsel at the initial conference.
The court should use the pleadings and the positions of the parties
developed at the initial conference as a starting point for identifying
the issues on the basis of which to construct the discovery plan.
Discovery may then provide information for the further defining and
narrowing of issues, which may in turn lead to revision and refinement of
the initial discovery plan.
21.32 Pleading and Motion Practice
The process of defining and narrowing issues will be advanced if
pleadings are finalized and emerging legal issues are promptly resolved
by appropriate motions. The court should first establish a schedule for
the filing of all pleadings in the case, including counterclaims, cross
claims, Third-party complaints, and amendments to existing pleadings
adding parties, claims, or defenses, to avoid later enlargement of issues
and expansion or duplication of discovery.
The court may also suspend filing of certain pleadings if statutes of
limitations present no problems and make orders providing that specified
pleadings, motions, and orders, unless specifically disavowed by a party,
are "deemed" filed in cases later brought, transferred, or removed,
without actually filing the document.
The pleadings may disclose issues of law that can be resolved by motion
to dismiss, to strike, or for judgment on the pleadings. Challenges to
the court's personal or subject matter jurisdiction should generally be
given priority, since they are dispositive.
The legal insufficiency of a claim or defense may be raised by motion for
failure to state a claim or for partial judgment on the pleadings. If the
court considers evidence in connection with such a motion, the motion
must be treated as one for summary judgment. *fn.100 Insufficient
defenses and irrelevant or duplicative matter may be stricken under Rule
If a motion concerns a pivotal issue which may materially advance the
termination of the litigation, the court may certify its ruling for
interlocutory appeal under 28 U.S.C. 1292(b) if, in the court's
judgment, there is "substantial ground for difference of opinion." The
court may also provide for appellate review by entering final judgment as
to a particular claim or party under Fed.R.Civ.P. 54(b).
Motion practice can be a source of substantial cost and delay unless
appropriately managed. Following are some points to consider:
* Because a motion under Rule 12 can result in unnecessary expense if the
asserted defect can be cured by amendment, it is generally advisable for
a party to notify the opposing party and the court of its intention to
file such a motion to ascertain whether it will serve to narrow the
issues in the case.
* Some courts have found prefiling conferences useful in avoiding useless
or unnecessary motions.
* Some motions can be decided on the basis of oral presentations and
reference to controlling authority, without the filing of briefs.
* The court may limit the length of briefs and of appendices, affidavits,
declarations, and other supporting materials, and require joint briefs
* The court may limit the filing of reply or supplemental briefs, or
motions for reconsideration, requiring leave of court for good cause
* Prompt rulings by the court will expedite the litigation and result in
savings by avoiding unnecessary litigation activity by the parties;
whenever possible, judges should rule from the bench, avoiding the delay
caused by the preparation of a written disposition.
* Some courts issue tentative rulings on motions in advance of the motion
hearing. If the parties accept the rulings, no hearing is necessary. If
there is a hearing, the parties can direct their arguments to the issues
that concern the court.
* In multiparty litigation, particular attention needs to be given to
scheduling. Counsel should be directed to inform the court as soon as
possible of any motion to be filed, with sufficient time allowed for
opposing counsel to respond and the court to review the parties'
submissions in advance. Expedited motions should be avoided unless they
concern matters that will delay further proceedings if not resolved.
Motion hearings should be specially set rather than be part of a regular
motion docket or calendar call of the court, but they may be combined
with other conferences in the litigation.
21.33 Identifying, Narrowing, and Resolving Issues
As noted, the process of identifying, defining, and narrowing issues
begins at the initial conference. The attorneys may be directed to confer
and submit a tentative statement of disputed issues in advance, agreed on
to the extent possible. The court should treat the conference as an
opportunity to learn about the material facts and legal issues, and
counsel should treat it as an opportunity to educate the judge. At the
same time, counsel will learn about the opponent's case and gain a better
perspective on their own, helping them to evaluate their case more
For the process to be productive, the judge must be willing to admit
ignorance and ask even basic questions. The court's questions should
probe into the parties' claims and defenses and seek specific
information. The judge, instead of being satisfied, for example, with a
statement that defendant "was negligent" or "breached the contract,"
should insist that the attorneys describe the material facts they intend
to prove and the manner in which they intend to prove them. The judge
should inquire not only into the amount of damages claimed but also into
the proposed proof and manner of computation, including the evidence of
causation, and the specific nature of any other relief sought (data which
may also be subject to mandatory prediscovery disclosure).
Similar inquiry should be made of the defense: what specific allegations
and claims it disputes, the specific defenses it intends to raise, and
the proof it intends to offer. This process should lead to identification
of the genuine disputes and may facilitate admissions and stipulations
between the parties, eliminating the need to litigate undisputed issues
and narrowing the scope of the remaining issues. The parties may be able
to stipulate to the authenticity of documents or the accuracy of
underlying statistical or technical data while reserving the right to
dispute assumptions, interpretations, or inferences drawn from the
Facts may be shown to be subject to judicial notice, after the opposing
party has had an opportunity to proffer contradictory evidence. *Fn.101
A variety of techniques have been used to facilitate the identification,
defining, and narrowing of issues in complex litigation, including the
* nonbinding statements of counsel, such as those that may be required at
the initial conference these may be updated periodically by written
reports or oral statements at later conferences;
* voluntary abandonment of tenuous claims or defenses by the parties,
often after probing by the court into the likelihood of success and the
potential disadvantages of pursuing them;
* requiring counsel to list the essential elements of the cause of action
this exercise, designed to clarify the claims, may assist in
identifying elements in dispute and can result in abandonment of
essentially duplicative theories of recovery;
* formal amendments to the pleadings, including those resulting from an
order under Fed.R.Civ.P.12 striking allegations or requiring a more
* use of the court's powers under Fed.R.Civ.P. 16(c)(1) to eliminate
insubstantial claims or defenses; *fn.102
* contention interrogatories and requests for admission, especially when
served after adequate opportunity for relevant discovery;
* rulings on motions for full or partial summary judgment;
* sanctions for violations of Fed.R.Civ.P. 16, 26, and 37 in the form of
orders precluding certain contentions or proof;
* requiring, with respect to one or more issues, that the parties present
a detailed statement of their contentions, with supporting facts and
evidence the statements may be exchanged, with each party marking those
parts it disputes; the order directing this procedure will provide that
other issues or contentions are then precluded and no additional evidence
may be offered absent good cause;
* requiring the parties to present in advance of trial proposed
instructions in jury cases, or proposed findings of fact and conclusions
of law in nonjury cases;
* conducting preliminary hearings under Fed.R.Evid. 104 on objections to
* conducting a separate trial under Fed.R.Civ.P. 42(b) of issues that may
render unnecessary or substantially alter the scope of further discovery
or trial; special verdicts and interrogatories may be helpful, and on
some issues the parties may waive jury trial.
21.34 Summary Judgment
Summary judgment motions can help define, narrow, and resolve issues. As
the Supreme Court has stated, summary judgment is "not . . . a disfavored
procedural shortcut, but rather . . . an integral part of the Federal
Rules." *fn.103 If granted, summary judgment may eliminate the need for
further proceedings or at least reduce the scope of discovery or trial.
Even if denied, in whole or in part, the parties' formulations of their
positions may help clarify and define issues and the scope of further
In addition, the court may, under Fed. R. Civ. P. 56(d), issue an order
specifying those facts which "appear without substantial controversy" and
shall be "deemed established" for trial purposes. Summary judgment
proceedings can, however, be costly and time consuming.
To avoid the filing of unproductive motions, the court may require a
prefiling conference at which it can ascertain whether issues are
appropriate for summary judgment, whether there are disputed issues of
fact, and whether the motion, even if granted, is likely to expedite the
termination of the litigation.
In some circumstances, a separate trial of an issue bifurcated under Rule
42(b) may be a preferable alternative. Although summary judgment is as
appropriate in complex litigation as in routine cases *fn.104 indeed
it offers the potential of substantial savings of money and time and,
as a general proposition, the standard for deciding a summary judgment
motion is the same in all cases, *fn.105 the court needs to be concerned
with whether the record is adequately developed to support summary
judgment. Complex litigation may present complicated issues not as
readily susceptible to resolution as issues in more familiar settings.
More extensive discovery may be necessary to ensure an adequate record
for decision. *fn.106 The party opposing summary judgment should,
however, be required to make the necessary showing under Rule 56(f) in
support of its request for additional discovery. *fn.107
To avoid expenditure of effort on pretrial activities that may be
rendered unnecessary if the motion is granted, the schedule should call
for filing of the motion as early as possible to maximize the potential
benefits that may be realized from its disposition while affording the
parties an adequate opportunity to conduct discovery relevant to the
issues raised by the motion, obtain needed evidence, and develop a
sufficient record for decision. *fn.108
The court must use its discretion to determine what constitutes "adequate
time" and what information is "essential" in opposition; requiring all
discovery to be
Allowing adequate time for preparation before the motion is filed should
reduce the need for granting the opposing party a continuance under Rule
56(f) to obtain affidavits or conduct further discovery to oppose the
motion. In support of its request for a continuance, the party must
specify (1) the discovery it proposes to take, (2) the evidence likely to
be uncovered, and (3) the material fact issues that evidence will
support. Under Rule 56(c), the court is to rule on the motion on the
basis of "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits." *fn.109
The affidavits "shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein."
*fn.110 Because of the volume of discovery materials in complex
litigation, and the potential for disputes over admissibility, these
provisions can be a particular source of problems for the court. The
court should direct the moving party to specify the material facts
claimed to be undisputed; it should direct the opposing party to specify
the evidence upon which a claimed factual dispute is based. *fn.111
Objections to evidence may be resolved by a hearing under Fed. R. Evid.
104, if necessary. *fn.112 Each party should also be required to submit
a clear and unambiguous statement of the theories of its case.
Such statements in the motion and the opposition will minimize the risk
of error, as will the issuance of a tentative ruling by the court before
hearing the motion. The court should fix a schedule for the filing of
moving and opposition papers (and replies, if needed). The ruling on the
motion should be in writing or be read into the record, and it should lay
out the court's reasoning. The court should try to decide such motions
promptly; deferring rulings on summary judgment motions until the final
pretrial conference tends to defeat their purpose of expediting the
disposition of issues.
100. Fed. R. Civ. P. 12(b), (c).
101. See Fed. R. Evid. 201; Tampa Elec. Co. v. Nashville Coal Co., 365
U.S. 320, 332 (1949); William J. Flittie, Judicial Notice in the Trial of
Complex Cases, 31 Sw. L.J. 819, 82939 (1978).
102. See, e.g. , Diaz v. Schwerman Trucking Co., 709 F.2d 1371, 1375 n.6
(11th Cir. 1983) (noting trial court's power under Rule 16 to summarily
decide matters where no issue of fact exists); Holcomb v. Aetna Life Ins.
Co., 255 F.2d 577, 58081 (10th Cir. 1958) (trial court may enter
judgment at Rule 16 pretrial conference if no issue of fact);
Fed.R.Civ.P. 16(c) advisory committee's note; cf. Fox v. Taylor Diving &
Salvage Co., 694 F.2d 1349, 135657 (5th Cir. 1983) (judge may summarily
dispose of unsupportable claim after Rule 16 conference held during
recess in trial).
103. Celotex v. Catrett, 477 U.S. 317, 329 (1986).
104. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986) (approving grant of summary judgment in complex antitrust case).
105. See William W Schwarzer et al., The Analysis and Decision of Summary
Judgment Motions (Federal Judicial Center 1991), reprinted in 139 F.R.D.
441 (1992) [hereinafter Summary Judgment]. For U.S. Supreme Court cases
discussing the standard and the parties' respective burdens, see Eastman
Kodak v. Image Technical Servs., 112 S. Ct. 2072 (1992); Celotex, 477
U.S. 317; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita, 475 U.S. 574.
106. See William W Schwarzer and Alan Hirsch, Summary Judgment After
Eastman Kodak, 45 Hastings L.J. 1 (1993).
107. See, e.g., Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386,
138890 (Fed. Cir. 1989); Dowling v. Philadelphia, 855 F.2d 136, 13940
(3d Cir. 1988); VISA v. Bankcard Holders, 784 F.2d 1472, 1475 (9th Cir.
108. See Celotex , 477 U.S. at 327 (court must allow "adequate time" for
discovery); Anderson, 477 U.S. at 2525 n.5 (nonmoving party must have
opportunity to discover information "essential to [its] opposition").
The court must use its discretion to determine what constitutes "adequate
time" and what information is "essential" in opposition; requiring all
discovery to be
109. Fed. R. Civ. P. 56(c). The court may also hold an evidentiary
hearing under Fed. R. Civ. P. 43(e), but when the motion cannot be
decided because the parties' submissions are unclear, the court may
instead simply require additional, clarifying submissions.
110. Fed. R. Civ. P. 56(e). The requirements of personal knowledge and
admissibility in evidence presumably apply also to the use of depositions
and interrogatory answers. See 10A Charles A. Wright et al., Federal
Practice and Procedure 2722 (2d ed. 1983).
111. For example, the parties should identify relevant deposition
evidence by deponent, date, place of deposition, and page numbers;
similarly detailed information should be provided for all other evidence
submitted. Copies of relevant materials should be included with the
moving and opposing papers. See Summary Judgment, supra note 105, at
48081 & n.221; Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 (9th Cir.
112. See In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260
(3d Cir. 1983).
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