• Kudos to Walter for evenhandedness in showcasing a case where the court’s criticism for the overlawyering was so overwhelmingly directed at the defendant. Overlawyering is not a problem occurring only on one side.

    At least half of the 44 issues defendant submitted for summary judgment were found to be improper issues for s.j., and of the 763 evidentiary objections made by defendant, a third failed to quote the evidence objected to, and many were found to be frivolous. The court wondered if this might be due to a lack of supervision of junior lawyers.

    The appellate court noted more generally:

    “Some particular criticism is directed to the [summary judgment] procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well?funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism….”

  • More than 1,000 pages to demonstrate no material issues of fact? That should have been a tipoff from the very beginning.

  • Obviously, the trial court did not find defendant’s motion to be improper or overly burdensome. If the appellate court’s ruling is correct, the trial judge – not defense counsel – seems to be most at fault. The real issue here is whether summary judgment was properly granted, not the burden on the courts. Doesn’t the appellate court’s “concern” about the burden on the courts rings hollow with respect to the trial court? Isn’t it really just a complaint about having to deal with a voluminous record? Presumably, all of the issues raised at the summary judgment stage would have been (and now will have to) dealt with before or at trial. Does raising them by summary judgment do anything other than change the time at which they are considered, as opposed to increasing the burden to the trial court, with the possible benefit of saving judicial resources if summary judgment is appropriate? If summary judgment should not have been granted because there was a genuine issue of material fact, then so be it, and the appellate court can write an opinion to that effect. The rest of the opinion sounds like whining.