Yesterday I attended and participated in an MSBA seminar on drafting pleadings and motions, sponsored by the Young Lawyers Section but certainly illuminating for all.
I attended the two morning sessions, which had Justice Alexander and Peter Brann discussing summary judgment motions and Justice Levy and me discussing appellate briefs.
Regarding the first session, there is a lot of discussion going on about this topic these days, particularly on the federal front, so I won't discuss it at any length here. I would commend, as did Justice Alexander, Judge Hornby's article on the subject (go to www.greenbag.org). Justice Alexander's general take on the subject yesterday was that current problems were more a matter of practice than the rule itself. He observed that while the rule is primarily the same in federal and state courts in Maine, and the two court systems make an effort to cooperate, the nature of summary judgment practice differs, in that the federal courts see a lot of defendant employment sj motions, while the state sees lots of plaintiff collection and foreclosure sj actions.
The only observation I will make on this topic, which again is being examined in depth by others, is the difficult balance between two themes. First, the identified problem is that statements of material fact are too lengthy. Justice Alexander opined, as have others, that the movant should focus on the real crux of the case in the SMF and include only those facts at the heart of the dispute. On the other hand, Justice Alexander said that, at least in the foreclosure-collection areas, even if the defendant does not respond properly to a SMF, the movant will still be put to its burden of proof, e.g., it has to show it owns the note. To me, this means that the plaintiff movant does have to include in the SMF at least the evidence to show it wins as to every element of a claim. I'm also a little hazy on how one is supposed to treat background facts if only the core facts go into the SMF. Does the movant recite a background fact in its brief without any cite? Does it file an affidavit with the background facts, and just exclude those facts from the SMF? I would think the latter would be the safer route.
The path toward change seems to be progressing towards more oral discussion with the court – either before or after the motion, trying to craft a process that focuses the discussion in a manner that creates less, not more work for the courts and parties. I will be educated more on this topic at the district court conference next month.
More to come in the next entry on the second session, discussing appellate brief writing with Justice Levy.