Tag: litigation

The “Drastic Remedy” Myth

Have you ever received a summary judgment opposition memorandum that warns the trial court that summary judgment is a “drastic remedy,” as if that is a standard the trial court must apply or consider when ruling on the motion?  That language litters opposition memoranda in dockets around the state.  And why not? There is plenty of Utah caselaw that supports it.  See, e.g., Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (“‘Summary judgment procedure is generally considered a drastic remedy,’ and is appropriate only when the facts are clear and undisputed.’”) (quoting Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993)).

This label appears to have taken root in a 1956 Utah Supreme Court opinion, Holland v. Columbia Iron Mining Co., 293 P.2d 700 (Utah 1956).  There, the court explained that summary judgment “is a drastic remedy with great possibility of saving time, but will neither save time or further justice unless granted only where it affirmatively appears that there is no reasonable possibility that the loser could establish a valid claim.” 4 Utah 2d 303, 317 (Utah 1956).  This view was repeated over the years, several times by a single justice—Justice Crockett—who appeared openly hostile to the procedure: 

  • Holland v. Columbia Iron Mining Co., 293 P.2d 700, 311 (Utah 1956) (“It is true, indeed, that a summary judgment is a drastic remedy which the courts are, and should be reluctant to use.”) (Crockett, J., concurring).
  • Richards v. Anderson, 337 P.2d 59 (Utah 1959) (“It is true that summary judgment is a severe measure which courts should be reluctant to use, and that doubts should be resolved in favor of allowing a full trial of the case.”) (Crockett, C.J.) 
  • Welchman v. Wood, 337 P.2d 410, 28 (Utah 1959) (“Summary judgment is a drastic remedy and the courts should be reluctant to deprive litigants of an opportunity to fully present their contentions upon a trial.”)
  • Pender v. Alix, 354 P.2d 1066, 11 Utah 2d 58, 59 (1960) (“It should be kept uppermost in mind that this is a review of a summary judgment; that it is a drastic remedy which deprives the party of the opportunity to present his evidence; and which the court therefore should be extremely reluctant to grant.”) (Crockett, C.J., dissenting)
  • Housley v. Anaconda Co., 427 P.2d 390, 127 (Utah 1967) (“Prior decisions point out that summary judgment is a drastic remedy and should be granted with reluctance.”)
  • Burningham v. Ott, 525 P.2d 620, 624 (Utah 1974) (“A summary judgment … is a drastic remedy and is never warranted except on a clear showing that there is no genuine issue as to any material fact.”) (Crockett, J., dissenting in part).
  • Timm v. Dewsnup, 851 P.2d 1178, 1181 (Utah 1993) (“Summary judgment procedure is generally considered a drastic remedy, requiring strict compliance with the rule authorizing it.”)
Continue reading The “Drastic Remedy” Myth

Know all the facts and law that surround

“Know thoroughly each fact. Don’t believe client witnesses. Examine documents.  Reason; use imagination.  Know bookkeeping—the universal language of business; know persons … know not only specific cases, but the whole subjects.  Know not only those facts which bear on direct controversy, but know all the facts and law that surround.” 

–Louis D. Brandeis

Avoiding Mistakes

Have you ever watched a post-game interview with a coach after a tough loss and heard something like this: “We just made too many mistakes …”  It doesn’t matter the sport. Football, basketball, baseball, whatever.  The turnover. The penalty. The error.  The mental breakdowns. Just one at the wrong time can cost you everything.  Multiple mistakes over the course of a game can add up and be just as costly.  So it is in litigation. It is one thing to get beat because you have bad facts and law, things you can’t change.  But it’s another to beat yourself because of unforced errors and mistakes.  Just as in sports, there are remedies in litigation.  A few tips:

  1. Slow down.  When you’re in a rush you are more mistake prone than if you gave yourself the right amount of time to devote to the task.  Have a schedule and keep to it.  Don’t procrastinate every deadline.  Give yourself enough time to recognize mistakes before they head out the door.  
  2. Be disciplined.  Focus on the task at hand, not all the other distractions around you.  One thing at a time, in order.  Think through it before you do it, file it, serve it, or send it.
  3. Don’t react. Respond.
  4. Finally, don’t get discouraged when things aren’t going your way.  During the life of a case you will likely lose a hearing or motion; your witness will say something stupid during a deposition; and opposing counsel will act like a clown.  If you let it get to you, your work will suffer and you’re more prone to make mistakes.