My first two Summary Judgment Discourses proved to be among my most enduringly popular posts (see 5/1/04: “Discourse on summary judgment motions, spilling out after I spent most of the week preparing four of them” and 7/17/04: “Discourse on summary judgment motions Part II (having the last word: the reply brief)”

This interest encourages me to return with another installment.

Summary judgment is not an all-or-nothing proposition. Rule 56(d) of the Federal Rules of Civil Procedure addresses situations in which the entire case is not fully adjudicated when the court rules on a summary judgment motion.

It provides that if a trial is necessary, the court shall “if practicable ascertain what material facts exist without substantial controversy and what material facts are actually in good faith controverted.”

This has several implications for defense lawyers.

First, a motion specifically seeking partial summary judgment may be a worthwhile strategy even where full summary judgment clearly seems unattainable.

Such a motion could seek dismissal of extraneous counts. For example, it could move for dismissal of tort claims filed along with harassment or discrimination claims. Such claims often have very demanding proof requirements and can be eliminated, even if there are substantial factual issues on the primary employment claim.

For example, if there were an award for the tort claim most often pleaded but least likely to succeed, I’d definitely nominate intentional infliction of emotional distress. Get that sucker out of there.

Also, frequently partial summary judgment can be granted on unwarranted claims against individual defendants. No, Title VII does not provide for individual liability. Make the plaintiff’s attorney who pleaded such a claim look the fool by moving for partial summary judgment (or moving to dismiss).

Second, it is possible that a motion for summary judgment on all claims will be granted, but only in part. Counsel should carefully consider whether the better strategy is to move on all counts, even if the motion is relatively weak on some of them.

The stronger aspects of the motion may pursuade the judge to grant it in full. If it is granted in part instead, the effort will not have been in vain.

On the other hand, if the judge views parts of the motion as frivolous, it may be denied in full, even if the stronger parts might have looked valid had the judge viewed them in isolation on a motion for partial summary judgment. Weigh the options carefully.

Partial summary judgment may be attractive to judges as a means of narrowing issues for trial, shortening trial, simplifying jury instructions, etc. It is possible that judges also sometimes view such “split-the-baby” decisions as a means of encouraging settlement. Sometimes the judge’s opinion hints or signals that even the remaining count has problems, encouraging a smart plaintiff’s attorney to advise the client to pursue settlement. (Of course, the hints may run the opposite direction too.)

So, if you moved for summary judgment on all counts, but won on only some, how do you turn partial summary judgment from a defeat to a victory?

Think creatively about how your partial victory can be used to shape the trial to your advantage.

Did the decision make any evidence irrelevant? File a motion in limine to exclude it.

Will the jury wonder about the issues that were the subject of a dismissed claim? Seek an instruction explaining that this claim was raised and dismissed.

For example, suppose a case arose out of an EEOC harassment charge, which the plaintiff claims led to a retaliatory termination. The judge might grant summary judgment on the harassment claim, but not the retaliation claim. Why? Because it’s possible the plaintiff reasonably believed she had been subjected to unlawful harassment, even if she had not been, and such belief is sufficient for a retaliation claim.

Would you be better off without down-and-dirty evidence of the alleged harassment coming before the jury? Is the Pope Catholic?

How about proposing a stipulation that she had a reasonable belief she had been unlawfully harassed, and moving to exclude all evidence of alleged acts of harassment, thus narrowing the issues to the motive for the termination? “That’ll simplify and shorten trial,” thinks the judge. “If the motion is denied, it might be prejudicial error for appeal, just in case I lose at trial,” you think.

Maybe the judge would also allow a jury instruction hinting at what happened to the harassment charge. The instruction would be a balanced one explaining that all that is required is that she had a reasonable belief she was harassed, that this has been stipulated, and that they are not to speculate as to what happened to the charge. Sound like a pro-plaintiff instruction? Don’t you think anyone on the jury will be smart enough to read between the lines and realize she obviously didn’t have a legitimate case on harassment? Will that help the defense? I doubt it would hurt.

Alternatively, don’t stipulate, but litigate the heck out of the reasonableness of her belief that she had been harassed. Then seek an instruction that the court dismissed her harassment claim, finding insufficient evidence of unlawful conduct by the employer (balanced, of course, by a reminder that they are to consider only the reasonableness of her belief, not the validity of the harassment claim).

Would this fly? Who knows. I’m just making it up; never tried it. But would it help put the screws to the plaintiff for a courthouse-steps settlement? Say no more. And although I made up the harassment-retaliation claims example above, I have been involved in using the fallout from partial summary judgments creatively to help stimulate a last-minute settlement for little more than the expected cost of trial.

Bottom line: scrutinize the implications of a partial summary judgment carefully, looking for creative ways to turn it to your advantage on the remaining claims.

Caveat: I am speculating on how judges think based on experience practicing before them and on having read thousands of summary judgment decisions, not based on an inside view of their decisionmaking. Regrettably, I never worked as a judicial clerk.

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