Summary Judgment: Taming the Beast of Burdens


Linda S Mullenix

10 American Journal of Trial Advocacy 433 (1987). [Reprinted in 37 Defense Law Journal 529


The Supreme Court revisited the problem of the summary judgment procedure with a view toward clarifying burdens of proof and evidentiary standards. In three cases, Anderson v. Liberty Lobby, Inc., Celotex Corp. v. Catrett, and Matsushita Electric Industrial Corp. v. Zenith Radio Corp., the Supreme Court took the opportunity to instruct the lower federal courts concerning which parties carry what burdens of proof, according to what evidentiary standards.

Unfortunately for summary judgment law, these cases contain three less-than-desirable effects. First, rather than illuminating a difficult aspect of civil procedure, the Court obscured summary judgment proceedings even more than before. Second, by viewing summary judgment through a traditional directed-verdict perspective, the Court arrived at indefinite conclusions concerning burdens and evidentiary standards. Third, the Court's pronouncements undercut the very purpose of the summary judgment procedure, thereby further hobbling the already limited utility of the rule. In essence, the Court transformed an intended summary procedure into the necessity for a full-blown trial-before-trial. For many litigators, this interpretation raises the ultimate question: why bother with making the motion?

This article focuses on one dimension of summary judgment law — the troublesome burdens of proof and evidentiary standards required by the rule. The hypothesis is quite simple: the problem of assigning burdens of proof and establishing evidentiary standards has been inappropriately refracted through the directed verdict lens. Courts traditionally reasoned backward from directed verdict to summary judgment. This mode of analysis compelled the conclusion that the burdens and standards attached to a directed verdict should govern summary adjudication. This conclusion is based on the premise, loosely articulated, that the purposes and effects of the motions are the same—that is, to remove a case from the fact-finder where there is only one factual outcome as a matter of law.

The practical result of this analysis, however, allocates burdens of production and persuasion inappropriately at an early stage of litigation, and imposes higher evidentiary standards than necessary for summary procedure. Thus, the Supreme Court and lower federal courts approach summary judgment analysis ineptly, rendering interpretations that undermine the rule's fundamental utility. Rather than reasoning backward from the directed verdict, summary judgment should be evaluated in relation to the demurrer, the motion that Federal Rule 12(b)(6) effectively replaced with the abolition of code pleading.

When viewed from this perspective, different burdens and evidentiary standards for summary proceedings make sense. The purpose of the demurrer was to prevent insufficiently pleaded causes of action from proceeding to trial, whereas the directed verdict comes after the presentation of evidence at trial. The directed verdict, by nature, requires more stringent standards of evidentiary proof and different allocations of the burdens of production and persuasion. Summary adjudication at the pleadings stage was never intended to become a mini-trial, yet recent Supreme Court cases will have precisely this effect. Summary judgment procedure, therefore, needs to be salvaged from Supreme Court interpretation.

Part I of this article discusses the Supreme Court's interpretation of the federal summary judgment rule in relation to burdens of proof and evidentiary standards. This section reviews the Court's two most significant cases on these issues, First National Bank of Arizona v. Cities Service Co. and Adickes v. S. H. Kress & Co. These problematic, anomalous cases articulated broad principles of summary adjudication, without useful elaboration of rules relating to burdens and standards.

Part II discusses the most recent Supreme Court cases — Anderson, Celotex, and Zenith — in which the Court analyzed the burdens and standards issues with more specificity. The argument is that the Court not only failed to clarify the summary judgment procedure in a meaningful fashion, but seriously undercut the rule's utility.

Part III analyzes the traditional theoretical framework supporting summary judgment, and advocates a rethinking of the rule more relative to the old common law demurrer.Summary judgment should be just what it is intended to be — a summary disposition of claims. The requirement of trial-like burdens and evidentiary standards transforms this motion into the trial itself, thereby defeating the very purpose of the rule. Federal summary judgment should assume this more practical and appropriate role in federal civil procedure: a demurrer-like procedure to dismiss insufficiently pleaded causes of action.

Full Citation

Linda S. Mullenix, Summary Judgment: Taming the Beast of Burdens, 10 American Journal of Trial Advocacy 433 (1987). [Reprinted in 37 Defense Law Journal 529 (1988).]