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Six Summary Judgment Safeguards

25 Pages Posted: 23 Dec 2010 Last revised: 25 Jan 2011

Edward Brunet

Lewis & Clark Law School

Date Written: January 6, 2011


Summary judgment is under attack. Critics have called summary judgment unconstitutional, overused, a radical rule derived from more modest origins, and ineffectual. One rarely hears anyone willing to praise summary judgment. Existing summary judgment discourse appears moody and negative. Nevertheless, summary judgment provides numerous advantages and efficiencies. Summary judgment helps settlement chances by clarifying factual and legal issues and decreasing risk. A denial of the motion creates a settlement premium by increasing the costs and risk. In addition several “safeguards” exist that prevent erroneous grants of summary judgment. These safeguards include (1) the discretionary ability of the trial judge to deny summary judgment by identifying a single disputed factual issue; (2) robust de novo appellate review; and (3) a liberal ability to call a helpful “time-out” available under Rule 56(f) to take a focused quantum of discovery essential to combat a summary judgment request. Other potential safeguards, including (1) the weighing of inferences favoring the non-movant; (2) allowing the non-movant to introduce inadmissible evidence; and (3) a “handle with care” label applicable to only selected types of cases, work less well.

Keywords: Robust de Novo Appellate Review, Time-Out, Weighing of Inferences, Inadmissible Evidence, Handle with Care

Suggested Citation

Brunet, Edward, Six Summary Judgment Safeguards (January 6, 2011). Akron Law Review, Vol. 43, p. 1165, 2010; Lewis & Clark Law School Legal Studies Research Paper No. 2011-2. Available at SSRN:

Edward Brunet (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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