MANAGERIAL JUDGING AND SUMMARY JUDGMENT Managerial Judging and Pretrial Disposition A. Managerial Judging About 12% of federal cases went to trial in 1960, today less than 2%. Various pre-trial devices used to increase judicial efficiency, and settlement encouraged. 1993 amendments included Rule 16, which gives judge power for scheduling conferences, some control over discovery, pleadings, adding parties, referring to magistrates, ordering separate trials of particular issues or claims, Strandel---Summary Jury Trial Backlogged district court tried to force parties to go through a preliminary non-binding jury trial to promote settlement. Tobin refused, because he didn't want his protected work privilege to come out at pretrial. Court of Appeals says Rule 16 does not allow courts to compel parties to participate in summary jury trials. Pretrial conferences were intended to foster settlement, but not to require than an unwilling litigant be sidetracked from the normal course of litigation, or that the judge would impose settlement negotiations on unwilling litigants. B. Summary Judgment Rule 56: either party may move for summary judgment any time until 30 days after close of discovery. Other party must respond within 21 days. Judgment granted if pleadings, discovery and disclosure, any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. You can have summary judgment about only one part of the case. For example, liability but not damages. Essentially, the movant must establish that no reasonable fact finder could rule for his opponent, such that the trial judge would be obliged to enter summary judgment in favor of the movant as a matter of law. 56(e): If moving party meets its burden of production, then nonmoving party must respond laying out specific facts that create a genuine issue for trial. E&E says: its appropriate when there are no disputed issues of material fact to be tried, so moving party is entitled to judgment on the undisputed facts. Summary judgment motion tests whether the plaintiff has sufficient evidence on the challenged element to make a trial necessary. Burden of Production: shifts to non-movant once the movant has shown that there is no issue of material fact. Burden of Persuasion: Always stays with the moving party

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