I have written about this before, but it happens so often that it requires emphasis.  As lawyers and a judicial system, some of us just do not "get" summary judgment.  Summary judgment is not about who wins or loses, or rather, it should not be about who wins or loses the lawsuit.  After all, if the plaintiff wins a motion for summary judgment, that simply means the lawsuit will not be dismissed.  The plaintiff mist still put on his/her evidence and persuade a jury.  

Employment & Labor Law Insider, written by Robin Shea, discusses the case of Ray v. Ropes and Gray, a prominent Boston law firm.  Mr. Ray, African-American, was denied partnership at the firm.  Under the firm’s rules, he had to leave the firm after nine years if he was not asked to become a partner.  The firm let him stay in his office for some time while he looked for new employment.  He asked two partners for letters of recommendation, which they agreed to provide.  Mr. Ray then filed a complaint with the EEOC.  Mr. Ray, a Harvard Law School graduate, also told Harvard not to deal with Ropes & Gray in recruiting, because they discrimnated.  

Ropes & Gray released the EEOC determination finding that the firm was not guilty of discrimination.  The two partners then refused to produce the two letters of recommendation.  The EEOC issued a separate finding that there appeared to be evidence of retaliation by the firm.  The blog, Above the Law, reported Mr. Ray’s allegations and his request that Harvard cease allowing Ropes & Gray to recruit Harvard graduates.  The firm sent a copy of the first finding about discrimination (but not the second finding about retaliation) to Above the Law.  Etc.  Etc.  

Long story short, the judge granted summary judgment regarding the discrimination claim, but denied summary judgment regarding the retaliation claim.  Employment & Labor Law Insider then discusses whether the judge’s decision was correct or not.  Ms. Shea essentially disagrees with the judge’s finding.  She believes the discrimination claim and the retaliation claim should have been dismissed.  

Ms. Shea discusses the findings as though they were final.  See her blog post here.  Indeed, she discusses the evidence in such detail that she is almost weighing the evidence.  She even finds this case to be a "close call" but ultimately siding with the employer.  But, Ms. Shea misses the point of summary judgment, as I believe many lawyers and judges do.  The court should not weigh evidence when reviewing a motion for summary judgment.  On the contrary, the court should indulge every available inference in favor of the non-movant.  As in baseball where ties favor the runner, in summary judgment any close calls should favor the non-movant.  Summary judgment as originally envisioned, is to dismiss the clearly weak cases, not those which are merely "close calls."   "Summary" means quick, as in "let’s avoid a needless trial." 

Summary judgment has become so common, so prevalent, that it has in many ways replaced the importance of a jury finding.  Where once a jury finding was newsworthy, now a judge’s denial of summary judgment is worthy of discussion and analysis.  And, yet, the plaintiff must still win his trial.  Mr. Ray is not at all assured of success at trial.  But, since jury trials have become so rare, winning summary judgment motions are often now the mark of success.