A NEW ERA FOR SUMMARY JUDGMENTS: RECENT SHIFTS AT THE SUPREME COURT by STEVEN ALAN CHILDRESS

I. Introduction

It used to be that the United States Supreme Court, in doctrine and practice, took a fairly harsh view of the summary judgment, warning against "trial by affidavits" and reversing grants of the motion. As recently as 1979 the Court remarked in famous dicta that the summary judgment dismissal provided in Federal Rule of Civil Procedure 56 seems particularly inappropriate for resolving state-of-mind issues, such as the "actual malice" requirement in public-figure defamation suits. See Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411 (1979). Many lower federal courts had their own brand of discouragement. The Second Circuit has, frequently though inconsistently, recited a general test that requires the trial judge to deny a summary judgment motion if there is "the slightest doubt" as to its propriety, and many other circuits have applied such a strict measure from time to time. See generally Smith, Judge Charles E. Clark and the Federal Rules of Civil Procedure, 85 Yale L.J. 914, 928-31 (1976); 1 S. Childress M. Davis, Standards of Review § 5.4 (1986). The Fifth Circuit has traditionally been seen as so quick to reverse grants that one district judge in New Orleans posted the sign, "No Spitting, No Summary Judgments."

It also used to be that the summary judgment device was most obviously perceived as a form of pretrial dismissal, something akin to the Rule 12(b)(6) dismissal motion for failure to state a legally cognizable claim, except that the Rule 56 summary judgment would further allow the judge to consider nonpleading materials, such as affidavits and discovery documents, in finding that the party had not stated a basis for relief. Of course, that failure was nominally worded in terms of inadequate facts — summary judgment under Rule 56(c) is proper only if "no genuine issue as to any material fact" is left for trial so that judgment can be entered "as a matter of law." But in reality the application of this standard often took the form of a judge's finding that even under the facts in the full pretrial record no legal relief would be available since the law does not support or redress the factual problem alleged. That seemed close to the Rule 12 test too. A "contested fact must have some legal significance to be material to the resolution of a case," Union Planters National Leasing Co. v. Woods, 687 F.2d 117, 119 (5th Cir. 1982), so the issue often would reduce to materiality and law even if framed in terms of "fact." And the district court was incessantly warned not to weigh evidence or to resolve factual disputes.

Both of these perspectives — the discouraging glare at grants, and the pretrial dismissal nature of the summary judgment mechanism — are in the process of receiving a new look in the federal courts, most clearly at the Supreme Court. Last year, in a trilogy of 1986 cases, the Supreme Court appeared to put summary judgments on its reform agenda. The result, though said to be the application of traditional procedural rules, will necessarily pump new life into the motion and free its use in certain contexts. The discouraging words may become the exception rather than the rule. Moreover, in the process of clarifying the way summary judgment works, the Court has shifted its focus away from legal cognizability and more to actual disposition of factual disputes. The result is that summary judgment can be less of a pretrial dismissal motion and more of a kind of trial itself, a bench trial on paper. Thus, the doctrinal development gives the green light to grants where appropriate, increases the situations in which it would be appropriate, and shifts the look of the motion from one of "glorified 12(b)(6)" to "preliminary directed verdict."

This article discusses the emerging standards for granting summary judgment. Although Rule 56 has not been amended lately, the Supreme Court's 1986 cases definitely made clear that its application is changing. The article considers two categories of changes: (1) those developments specifically made by the Court as to particular rules of summary judgment practice, and (2) the broader trend from these cases, beyond such specific rules, to encourage the lower courts toward a new and liberal granting of motions for summary judgment in appropriate cases, even in situations where prior Supreme Court language had discouraged summary judgment. The article will then discuss practical ways in which the new agenda can be used in briefing a summary judgment issue, and finally I note recent lower court interpretations of the shifting Supreme Court treatment of summary judgments.

Most states use a summary judgment rule whose language tracks that of the federal Rule 56. Since the new Supreme Court decisions are not based on a particular legislative history of the federal rules (but rather on recent policies and the general language of Rule 56), the new trend may also find a home in local summary judgment practice for state rules with similar wording. Where specific language of the federal rule was central to the Court's analysis, I specify that wording for the reader's comparison with analogous state rules. Already many state courts which follow similar summary judgment practice also seem to be changing the way they look at their own pretrial devices.

For terminology, I assume that the moving party is a defendant and the nonmovant is the plaintiff, unless otherwise noted, as is the usual case and as was true in the Supreme Court cases. The analysis should apply the same even when this isn't the case, except of course where the Supreme Court applies a shifting-burden analysis or otherwise incorporates the burdens of proof into summary judgment analysis.

II. The Three 1986 Supreme Court Cases

A. Matsushita and Sliding Implausibility

In Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Supreme Court in March first began its retooling of summary judgment practice. The case involved complex antitrust litigation (including predatory pricing) between Japanese and American electronics manufacturers. The district court had granted summary judgment for over 20 defendants, finding among other things that an inference of attempted monopolizing and predatory pricing was unreasonable; even where the pretrial evidence showed conspiratorial conduct, it was not the kind that affected U.S. markets or was redressable under the Sherman Act. The Third Circuit reversed, finding direct and circumstantial evidence of concert of action tending to show that injurious concert also occurred. See 723 F.2d 238, 304-05 (3d Cir. 1983).

The Supreme Court reversed and remanded, ordering that the summary judgment be reinstated unless the Third Circuit could find some other dispute in the record worthy of trial. Its complicated analysis of substantive antitrust law is not examined here; suffice it to say that plaintiffs had to show that there was a genuine issue of material fact (Fed.R.Civ.P. 56(c)) that defendants entered into an illegal conspiracy causing cognizable injury. This meant that plaintiffs must show violation of antitrust law and injury to them (i.e., "materiality" of disputed fact). Moreover, for these issues of fact to be "genuine," they must have a real basis in the record. 475 U.S. at ___, 106 S.Ct. at 1356. Because the defendants when moving for summary judgment had supported their motion adequately under Rule 56(e), id. at ___ n. 10, 106 S.Ct. at 1355 n. 10, the nonmovant plaintiffs then had a burden to show that summary judgment was improper, coming forward with specific facts showing a genuine dispute. Id. at ___, 106 S.Ct. at 1356.

The Court's procedural interpretation of this duty was, however, relatively novel, placing the emphasis on the need for summary judgment rather than on the usual cautions and reluctance. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at ___, 106 S.Ct. at 1356 (footnote omitted). This means, "Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. at ___, 106 S.Ct. at 1356. This language makes clear that summary judgment acts in a parallel fashion to the trial motion for directed verdict, allowing a grant if the nonmovant plaintiff fails on substantive proof even before trial. This strengthens the perception that summary judgment allows weak factual claims to be weeded out, not just facts that have no legal import; "genuine" allows some quantitative determination of sufficiency of the evidence. Of course, a court still cannot resolve factual disputes that could go to a jury at trial, id. at ___, 106 S.Ct. at 1356-57 ("the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion"), and I assume from later language in Catrett, discussed below, that this review assumes adequate discovery so that the record is complete enough to define issues. But no longer need the trial court leave every sufficiency issue for trial or a later directed verdict motion.

Moreover, the Court clarified that rationality (the usual jury review test) means rationality to find for the nonmoving party — not merely as to whether there is enough evidence to let the trial go forward. Thus, the issue now is not so much whether enough evidence exists to raise an inference to be resolved at trial, but rather whether sufficient evidence in the pretrial record exists to allow plaintiff to win at trial or to survive a motion for directed verdict were one based on these facts. That's a higher threshold for nonmovants to survive a summary judgment motion than was clearly expressed in prior Supreme Court cases.

Even more surprisingly, the Court seems to allow a certain amount of qualitative review beyond a minimum quantitative sufficiency-of-the-evidence review. "It follows from these settled principles that if the factual context renders respondents' [plaintiffs'] claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Id. at ___, 106 S.Ct. at 1356 (emphasis added). Two aspects of this approach seem new: (1) apparently "persuasiveness" can be considered by a judge before trial, and (2) "plausibility" can be judged, with a sliding scale of proof required of a plaintiff whose claim's plausibility varies. This means that inferences can be weighed, at least for their absolute reasonableness or persuasiveness. The issue is whether the proof supports the inference, and plaintiffs "must show that the inference of conspiracy is reasonable in light of the competing inferences." See id. at ___, 106 S.Ct. at 1356-57. Although usually the overall burden of advancing a summary judgment motion remains with the movant, such language makes clear that nonmovants have their own intermediate burden (one which seems especially strong now, particularly if there is implausibility). Previously, competing inferences may have been thought to preclude summary judgment; now if one is shown to be established beyond reason — and the plaintiff apparently has to show that it's not, once the original motion is supported under Rule 56(e) — then summary judgment is proper. Such was the case in Matsushita, the Court finding that no trier of fact could reasonably find conspiracy on the record as argued to the Court.

Finally, even in remanding to the Third Circuit for a determination of the propriety of summary judgment on other evidence not argued to the Court, the majority opinion seems to support qualitative review. The lower court "is free to consider whether there is other evidence that is sufficiently unambiguous to permit a trier of fact to find that petitioners conspired. . . ." Id. at ___, 106 S.Ct. at 1362. Previously, it would seem that ambiguity would preclude summary judgment; now the Third Circuit would have to find some un ambiguous proof of conspiracy even to let a jury decide.

The dissent, per Justice White, objected that the majority's discussion of summary judgment rules is confusing and inconsistent, invading the jury's role. Id. at ___, 106 S.Ct. at 1362-63. Agreeing that rationality to find an issue at trial is the test, the dissent nonetheless found the majority to depart from prior practice. The sliding scale of "implausibility" may suggest that lower courts weigh the evidence. Justice White was especially worried that the majority could be read to require that summary judgment be granted on the inference that is more probable, contrary to settled law. Id. at ___, 106 S.Ct. at 1363-64. I agree that the discussion is confusing, but at least it shows expanding use of the motion and a more critical inquiry into the factual disputes alleged. And Justice White later seemed to endorse qualitative review in Anderson, as discussed below.

B. Celotex Corp. v. Catrett

This case, arising out of an asbestos products liability suit, mainly concerned the propriety of shifting burdens within the summary judgment procedure. The district court granted defendant Celotex's motion for summary judgment; after the plaintiff had had a year of discovery, she failed to produce evidence showing decedent's exposure to defendant's asbestos products. The D.C. Circuit reversed, finding that defendant had failed to support its motion with evidence tending to negate such exposure, thereby precluding summary judgment. Three months after Matsushita, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court reversed and remanded to the D.C. Circuit for further determination of the propriety of summary judgment under corrected rules. (Like Matsushita, it seems apparent that the Court was leaning toward the district court grant but felt that the final determination should be made on remand; at least the test for granting was liberalized).

The Court rejected the D.C. Circuit's view that the nonmovant bears a burden to respond with proof tending to show a triable issue only after the movant proves an absence of genuine issues of material fact. Id. at ___, 106 S.Ct. at 2552. Instead, "the plain language of Rule 56(c)," [i.e., motion granted if pleadings, depositions, etc., together with affidavits — if any — show no genuine issue of material fact], "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at ___, 106 S.Ct. at 2552-53. A complete failure of proof by the nonmovant on an element renders all facts immaterial, so the movant is entitled to judgment as a matter of law. Id. at ___, 106 S.Ct. at 2553. Again the Court approved review for sufficiency of pretrial evidence, the Court found this test to mirror the directed verdict inquiry, and the motion's purpose is clarified to include disposing of factually unsupported claims.

The movant's initial burden, to prompt such a stiff burden on the nonmovant, seems weaker than prior cases had indicated. The movant has "the initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record it believes shows a lack of genuine issue. Id. at ___, 106 S.Ct. at 2553. However, Rule 56 does not require that the movant "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at ___, 106 S.Ct. at 2553 (emphasis the Court's). Instead, Rule 56(c) refers to the "affidavits, if any," and Rule 56(a), (b) provides that parties may move for summary judgment "with or without affidavits." Therefore, to initially support a motion adequately under Rule 56(e) [which, since 1963, requires nonmovant response to motions "made and supported as provided in this rule" and was meant to facilitate grants], no affidavits are required if the nonmovant bears the burden of proof at trial. There is no preliminary burden on the defendant-movant to produce evidence showing the absence of a genuine issue. The burden is "discharged" merely by "'showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the nonmoving party's case." Id. at ___, 106 S.Ct. at 2554. This "pointing out" responsibility seems fairly light. In Catrett, that meant that defendant apparently met this duty since plaintiff had no evidence of exposure. The Court remanded for an assessment of the adequacy of the nonmovant's response and whether that showing, on admissible evidence, would be sufficient to carry the burden of proof at trial. Id. at ___, 106 S.Ct. at 2555. (Again the trial sufficiency standard is crucial, now including the plaintiff's burden.)

Finally, the Court used broad language supporting the perceived trend toward granting summary judgment, language that should guide its use beyond the shifting-burden analysis specifically at issue. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Id. at ___, 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1). After notice pleading made dismissal of complaints rare, the summary judgment motion has become the principal tool for eliminating factually and legally insufficient claims. Rule 56 must be read not just to protect nonmovants with real claims but also the rights of movants to dispose of claims without a sufficient basis. Id. at ___, 106 S.Ct. at 2555. This balancing of interests and favoring of grants appears to be a new gloss. Such language has already been applied in lower courts, as in the Raynor case discussed in Part V below.

Justice White's concurrence was the fifth vote essential to the majority opinion. His opinion stressed that the burden on a movant is real, and it is not sufficient to make a motion with no support or with a conclusory assertion that plaintiff has no evidence. The plaintiff need not depose his witnesses just to counter a conclusory motion. Id. at ___, 106 S.Ct. at 2555. Since Mrs. Catrett failed to name anyone tending to establish exposure, Celotex had no duty to negate that nonperson's claim. Id. at ___, 106 S.Ct. at 2556.

In dissent, Justice Brennan agreed with the majority's legal analysis (he would also find that defendant need not provide affirmative evidence disproving plaintiff's case, id. at ___, 106 S.Ct. at 2556). Nevertheless, he would hold that Celotex did not meet its burden of production. The majority is charged with a lack of clarity as to what is required of a movant claiming that nonmovant cannot prove his case. See id. at ___, 106 S.Ct. at 2556-59 (summarizing traditional shifting-burden rules and agreeing that the burden of proof at trial is included in summary judgment analysis). Beyond the factual and record dispute with the majority, the dissent correctly points out that the level of initial "pointing out" by movants remains unclear. Still, it is clear that again the Court has expressed a trend toward grants and invites lower courts to apply the majority analysis, bolstering the nonmovant's duty of response under Rule 56(e) and apparently lightening the initial showing in certain cases.

C. Anderson: Standards of Proof Incorporated

The final case, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), was handed down with Catrett. Its actual holding on procedure in defamation cases is even more context-specific than the other two, but its general language is also instructive — and again note that the trial court had granted the defendants summary judgment, the court of appeals (D.C. Circuit, per then-Judge Scalia) reversed in part, but the Supreme Court vacated and remanded under a corrected summary judgment test. The Court found that rulings on summary judgment, as with directed verdicts, necessarily implicate the substantive standard of proof from trial on the issue. Here, that meant that in constitutionally-privileged libel cases, the requirement that plaintiffs show actual malice by clear and convincing evidence also applies when plaintiffs oppose a supported summary judgment motion.

Beyond the libel law context, the Court discussed summary judgment procedure broadly and approvingly. Material facts are those which might affect the outcome of a suit due to their legal import. Genuine disputes are those by which the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at ___, 106 S.Ct. at 2510. The Court, per Justice White, extended the Matsushita majority's indication that directed verdict practice mirrors the summary judgment test. Summary judgment turns on whether a proper jury question is presented. Id. at ___, 106 S.Ct. at 2510. Although the judge is not to weigh evidence, she determines its sufficiency, and there is no rule that summary judgment must be denied just because a scintilla of evidence supports the nonmovant. Summary judgment should be granted if the pretrial evidence "is merely colorable" or "is not significantly probative." Id. at ___, 106 S.Ct. at 2511. Such language is surprising since prior practice may have a required a district judge to deny summary judgment any time colorable evidence existed or probity had to be evaluated (i.e., by a jury). The new twist is bolstered by the Court's statement that the trial judge "must bear in mind the actual quantum and quality of proof necessary to support liability" in libel cases, and no genuine issue exists if opposing affidavits are "of insufficient caliber or quantity" to allow a rational jury to decide. Id. at ___, 106 S.Ct. at 2513.

The Court does not appear to limit this qualitative review to defamation cases (though the threshold is different, considering the different standard of proof). Nor is its holding, that the evidentiary burden be incorporated into the summary judgment decision, limited to higher burdens. See id. at ___ n. 1, 106 S.Ct. at 2515 n. 1 (Brennan, J., dissenting) (complaining that majority is not clear as to how such burdens are applied in summary judgment, and that the confusion will reach broadly since the Court does not limit its application to the libel context, thereby changing the procedure for all litigants regardless of the substantive issue); see also id. at ___ n. 2, 106 S.Ct. at 2517 n. 2 (Justice Brennan implying that Justice White switched sides from Matsushita).

For purposes of ordinary civil cases, it appears that Anderson will have it greatest meaning in emphasizing that who has the burden at trial must be considered in applying summary judgment law, and that the nonmovant, though entitled to reasonable inferences, cannot rest on a scintilla of evidence or even less evidence than would be proper to have the case submitted to a jury at trial. Even though the court actually dealt nominally with the ambiguities and policies of modern defamation law, the rationale and language used to support the decision necessarily affect other summary judgment contexts and presumably require that burdens and standards of proof be considered in a way that was not obviously necessary in prior practice, before summary judgment was becoming a pretrial mirror of the directed verdict or a form of paper trial in its own right. The case brings full circle the perception that summary judgment motions aren't just pretrial dismissal actions but are also sufficiency-of-the-evidence motions.

III. Application of Specific Rule Changes

These three cases, despite their disclaimers of applying settled law, at the least clarified issues in a res nova way (their particular issues had not been before the Supreme Court) and probably changed some specific rules of summary judgment procedure. Obviously the cases have their most direct rule impact in three situations: (1) antitrust cases in which the nonmovant's claim seems substantively weak, (2) products liability cases in which the plaintiff has failed to make even a preliminary showing on an essential element, at least after extensive discovery, and (3) constitutionalized defamation cases in which the plaintiff has some suggestion or allegation that the defendant acted with actual malice, but insufficient proof to survive the defendant's summary judgment motion when measured considering the higher floor of proof the plaintiff would face at trial.

More broadly, the three cases require that litigants outside of these substantive areas consider that the Supreme Court may have changed or updated specific summary judgment practice on at least three general fronts: (1) those situations in which the plaintiff or nonmovant finds some record evidence suggesting his substantive point, but it doesn't rise to the persuasiveness required, especially in light of its shaky plausibility as a factual theory of what really happened, (2) situations in which both sides have inadequate support for their claims, so that now the moving party need not prove an absence of genuine issues, if at least that party has informed the court of the motion's basis, and (3) cases in which the nonmovant's burden of proof, or the standard of proof she operates under, is higher or somehow makes an otherwise (if neutral) sufficient showing now inadequate under the burden. Shifting-burden analysis is more complicated, and in general it apparently favors parties bringing a summary judgment motion.

Obviously whether a party can apply any one of these three cases directly will depend on whether they hold on a particular question also at issue in the party's case. That will be judged from the context, including who has moved for summary judgment, how the opponent responds as nonmovant, and what substantive issues or burdens arise. I can, however, suggest that pretrial litigators specifically watch for the following situations, and the Supreme Court cases will be suggestive to cite to the court (the following assumes that you represent a defendant bringing a motion for summary judgment):

1. Assume you make the motion and support it, and the nonmoving plaintiff argues that you have supported it insufficiently to shift a burden under Rule 56(e) — which holds that nonmovants must then respond with more than denials to survive summary judgment. Then you can point to Catrett to show that in certain circumstances the initial movant burden is relatively light, and probably lighter than it used to be. You suffice if you point out a failure of genuine dispute, though of course the best practice is to support your motion as factually as possible with record materials (e.g., depositions, answers to interrogatories, documents with record page cites).

2. Once that burden shifts, you may argue that Matsushita requires a considerable level of proof on the nonmovant to survive your supported motion — probably a higher (or at least emphatically a high) burden of evidentiary support than presumably used to suffice in order to preclude summary judgment. If facts are in dispute, you can now argue that the dispute is not factually supported enough to require trial. While previously an allegation that these witnesses disagree would have been enough to hold the case over for trial, now the record as a whole can be examined to show that one view of the evidence is reasonable or one inference is overwhelmingly supported. Even factual conflicts now have a chance to allow summary judgment, if the conflict is not real or substantial ("genuineness"), or as usual if it has no legal significance ("materiality"). If you argue factual insufficiency of the plaintiff's opposition to your motion, remember to have the court incorporate the fact that he has the trial burden (if indeed he does; if not, then you will face a higher level of production to win your motion than might have been perceived before). You might want to use Anderson if a higher standard of proof becomes at issue, e.g., if the plaintiff alleges fraud or some element which has constitutional overtones and is arguably parallel to libel's actual malice. Moreover, recent writings suggest that credibility conflicts are not necessarily enough to preclude summary judgment, e.g., Schwarzer, Summary Judgment under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465 (1984) (cited in Catrett); Sonenshein, State of Mind and Credibility in the Summary Judgment Context, 78 Nw.U. L. Rev. 774 (1984).

3. The nonmovant's proof can be examined not just for its evidentiary insufficiency, as in directed verdict practice, but also apparently for its qualitative import, even its "implausibility" — as Matsushita and Anderson make clear. You may face a bizarre legal theory or a doubtful factual claim that defies common sense. Now such common sense theories can be considered, and the more nonsensical (e.g., contrary to normal or sound business practice, or contrary to an express writing) a claim is, the more "persuasive" the plaintiff has to be in supporting her claim, according to Matsushita. Again, this assumes that the plaintiff in reality has the burden of proof on the issue.

4. Obviously many other specific rules invented or clarified in the three cases may come up later in a party's efforts to get summary judgment. The cases above should be reviewed from time to time to see whether: (1) any have become specifically applicable, or (2) the opponent is citing to you or the court some old cases and language that no longer apply.

5. Often the moving party's strongest argument will have little to do with the specific rules issued by the Supreme Court but rather with their general direction, their encouraging language, and the balancing of rights the court must consider as a policy matter.

IV. Application of the General Trend

Another use of these Supreme Court cases is more general. First, they provide excellent language favoring the motion, language which might be included in a movant's initial memorandum supporting the motion. For example, the Court's description in Catrett of the motion as not disfavored, coupled with its emphasis on the balance of rights which include movant rights for disposition of weak claims, is helpful to set the district court at ease that if it agrees with a movant's legal and factual analysis it should not hesitate to grant her motion. For the nonmovant the cases still have roped off certain situations which are apparently unlikely candidates for summary judgment, such as meaningful and supported credibility conflicts, or state-of-mind issues that are supported by objective evidence sufficient to survive directed verdict at trial.

Second, the cases counter old language noting the general reluctance to grant a motion for summary judgment. Many cases have said that summary judgment should be denied if the court has "the slightest doubt" as to the facts or the motion's propriety. Probably this standard was not good law anyway, see 10A C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 2727, at 176-77 (1983). Now the Court has expressly rejected a "metaphysical doubts" test, Matsushita, 475 U.S. at ___, 106 S.Ct. at 1356, and has gone so far as to say that colorable claims do not preclude summary judgment, Anderson, 477 U.S. at ___, 106 S.Ct. at 2511. The moving party might argue in his initial brief that while previously courts were asked to restrain their use of the procedure, the Supreme Court has now made clear that the motion is not only permitted but encouraged in certain circumstances. Old dicta urging unusual restraint is no longer valid, and the trial court should look to the new guidance both on specific rules of summary judgment practice and on the new approval by the Court of aggressive pretrial disposition of litigation.

Third, beyond rejecting earlier language which had cautioned against grants, the cases — in what they actually did — also show a more general trend toward freer use of the mechanism. All three reversed a court of appeals which had rejected the district court's grant. Just as in 1982 the Supreme Court's three cases on Rule 52's "clearly erroneous" standard signaled a [since reaffirmed] trend toward more deference to trial judges and findings, so the 1986 group on summary judgment obviously is a signal by the Court that pretrial practice must become more liberal — that trial courts should not be reluctant to grant summary judgments where appropriate. As a result, a memorandum in support of a summary judgment motion can be supported not only by specific record evidence showing the absence of a genuine dispute of material fact, but also by language of the cases encouraging the motion — as well as enough description of their holdings to show that the Court means business in encouraging freer use.

V. Initial Lower Court Interpretations

The early returns on these Supreme Court cases show that lower courts are getting the message. For example, recently in Raynor v. Richardson-Merrell, Inc., 643 F.Supp. 238 (D.D.C. 1986), the court stated that Catrett makes questionable the old policy-oriented approach to summary judgments by which courts patiently waited for plaintiffs to establish enough evidence to raise an issue for trial, allowing them trial in sympathetic cases even where plaintiffs have presented no facts of sufficient degree of legal probative force to create a genuine dispute. The court contrasted earlier cases that had emphasized a policy favoring plenary trials in tort cases. Instead, the Supreme Court now requires an "even-handed approach to summary judgment." Indeed, "[S]ummary judgment is given significant procedural strength, and is raised as a bulwark against claims based on speculation and inference." Id. at 240. The court held:

Litigants are provided a panoply of pretrial procedures, intended to uncover evidence and streamline the presentation of a case to the jury. Summary judgment is a necessary complement to the liberal rules of pleading and discovery available in federal court. Having had the benefit of full discovery as well as the trial testimony of many key participants in earlier trials, plaintiffs cannot now fall back on policy to oppose defendants' summary judgment motion on the issue of fraud. Viewing the evidence in the record on the issue of fraud through the "prism" of the clear-and-convincing evidentiary standard, it is apparent that there are no genuine issues of material fact, and Merrell is entitled to judgment as a matter of law.

VI. Conclusion

The recent Supreme Court cases likely require that summary judgment be more readily granted, and at the least they encourage it in certain circumstances. More broadly, the language counters older dicta making a grant sound impossible and provide ways to argue that quantitative and qualitative review — a real scrutiny of the nonmovant's record — be performed before a denial. This emerging trend signals a new era for summary judgments, one in which the old presumptions are giving way to a policy of balancing and efficiency, and the mechanism is more appropriate to double as a sufficiency motion — allowing some sort of trial itself on the paper record.