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This post recaps the first panel from The Institute's Symposium ("Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal And Employment Discrimination") at New York Law School on April 23, 2012. Check back in the coming week for additional posts recapping the other panels and the keynote!  

Following opening remarks by conference organizers from New York Law School, the Symposium opened with "A View From The Bench – The Judges’ Perspective on Summary Judgment In Employment Discrimination Cases," moderated by NELA member Richard T. Seymour, who also is the current Chair of the American Bar Association’s Labor and Employment Section. The panel featured Sixth Circuit Judge Bernice B. Donald, and District Judges Mark Bennett (N.D. Iowa), Nancy Gertner (Ret., now teaching at Harvard Law School), and Lee H. Rosenthal (S.D. Tex.). You can watch the video of the session here.  

Each of the judges shared their perspectives on the issues of the day: summary judgment and pleading standards. A spectrum of views emerged throughout the discussion. According to Judge Rosenthal, “Rule 56 is not going anywhere,” and the application of Rule 56 has not changed “all that much” in the years since it was adopted. Judge Bennett, on the other hand, asserted “the time has come to bury summary judgment, and the funeral should be swift, dignified and joyous” — a sentiment widely cheered by NELA members in attendance. Judge Gertner, meanwhile, posited that “Title VII has been repealed by the federal bench,” and that grants of summary judgment and dismissal motions have contributed to its demise.

The judges seemed in universal agreement that too many employment cases are brought by either pro se litigants or attorneys without relevant experience in this area of the law. Judge Rosenthal called this a problem of employees being “under-represented” in court. Judge Bennett, however, added that courts too often stigmatize these cases as the “new prisoners’ rights cases,” presuming that they possess a certain frivolous character. Judge Gertner echoed Judge Bennett’s assertion that there is a stigma attached to employment claims.  For example, if a judge assumes that discrimination is no longer a systematic or structural problem in society, and that the only people discriminating in the modern workplace are “aberrant, rogue individuals,” that will influence the manner in which the judge evaluates evidence, draws inferences, and makes credibility determinations.

Judge Gertner pointed out that these types of determinations, under the applicable Supreme Court law governing summary judgment, should be left to juries, but that lower court precedent invites judges to make these decisions instead. Quoting Professor Brooke Coleman, Judge Bennett drew the key dichotomy as follows: “either one has great faith in the jury trial, or one does not.” Based on the statistics he provided on the number of trials held in the districts represented by each of the panelists, Judge Bennett made a compelling case that the federal courts are experiencing a serious crisis of faith.

Judge Donald suggested two important implications of the decisions in Twombly and Iqbal: first, by not just allowing, but requiring judges to use their “judicial experience and common sense” in evaluating motions to dismiss, the Supreme Court guarantees that judicial biases will infect the process; second, the increase in dismissals will assuredly have a chilling effect on those who may have meritorious, but perhaps difficult to prove, cases. Judge Rosenthal suggested that given these developments, judges need to be, above all, self-aware and modest when exercising the discretion afforded to them at summary judgment. Judge Donald responded that the problem of judges making credibility determinations and drawing inferences was exacerbated by the fact that a lack of opportunity for discovery means that judges are making these decisions based on incomplete facts.

To combat these and other issues, Judge Rosenthal advocated for better case management by judges and endorsed procedures like pre-summary judgment conferences, oral argument and earlier, targeted discovery as valuable not only for inexperienced and pro se counsel, but also to help even experienced counsel get to trial where issues of fact exist. These tools were also endorsed by Judges Bennett, Donald, and Gertner. In addition, Judge Donald pointed out that practically speaking, summary judgment is the trial in nearly every case, except, unfortunately, in those cases where the motion to dismiss stage has become the trial.

One highlight of Judge Gertner’s remarks was her identification of the “Loser’s Rules,” shortcuts applied in employment cases at summary judgment compounded by the fact that caselaw is derived primarily from decisions granting summary judgment or dismissal.  Much like The Institute’s problem doctrines, these shortcuts can be traced to both the factual and legal complexity of discrimination cases and the structural pressure to reduce dockets. She identified “stray remarks,” whereby courts will either diminish the significance of, or completely disregard, certain discriminatory statements, as one of these Loser’s Rules.  These Loser’s Rules would become a theme for the other panels that followed.

The panel provided an excellent start to the day by framing how judges view employment cases and identifying useful items for discussion on the subsequent panels. Join us tomorrow when we take a look at the practitioners’ perspective on litigating at the summary judgment stage!