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Copyright (c) 2011 Oklahoma City University
Oklahoma City University Law Review

SPEECH: Summary Judgment and the Law of Unintended Consequences

Spring, 2011

Oklahoma City University Law Review

36 Okla. City U.L. Rev. 231


Hon. Diane P. Wood*


Optimism permeates the 1937 comments of the Advisory Committee that introduced Rule 56 of the new Federal Rules of Civil Procedure to the world. The rule, which provided for a "summary judgment procedure," created "a method for promptly disposing of actions in which there is no genuine issue ... [of] material fact." 1 The very name of the device - summary judgment - promises simplicity and expedition. According to Webster's, the word "summary" means "done or occurring without delay or formality." 2 Wright and Miller confirm that this is what is expected of a summary judgment motion: the rule opens the door to prompt adjudication; it allows a party to defeat unfounded claims or defenses with little expense; and it offers "expeditious justice" to the parties. 3

The only problem is that summary judgment today looks nothing like this Utopian picture. Enormous resources go into the preparation of summary judgment motions; courts labor over them for extended periods of time before issuing a ruling; and appellate courts are inundated with appeals from disappointed parties who insist that the trial court overlooked a critical disputed issue of fact or misapplied the law. What went wrong? Were the drafters of the rule naive, or has something else changed to make summary judgment the complex, time-consuming vehicle it now so often is?

Perhaps the answer is a little of both. Recall that the drafters of the Civil Rules also thought that discovery would be quick and inexpensive. Bitter experience has shown ...
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