Ask Judge Smith
Sometime some pressure is a necessary nudge
Q. Judge Smith, how do you approach reviewing case files and pushing the parties toward resolution? Minnie
A. By juggling hundreds of balls in the air at once and directing action when necessary. That means I monitor the cases and apply as much pressure as needed to move them along.
The plaintiffs’ claims put the defendants on notice of what they are defending. If lawsuits were movies, the pleadings would be the script. And without a tight script, no one knows what to do. Thus, courts cannot set trials until the parties establish their claims and defenses.
Remember this, if nothing else. The law does not provide a remedy for every perceived wrong.
The party who bears the burden of proof must plead “ultimate facts” to support his claim or affirmative defense. You would be surprised how much effort goes into finalizing the pleadings. Often, the battle lines involve motions to dismiss, the scope of discovery, and summary judgments.
A motion to dismiss asserts that a party failed to state a claim or defense, even if the court assumes the allegations of their pleading are true. If so, courts usually provide the non-moving party with an opportunity to file an amended pleading to fix the problem.
Discovery allows the parties to find and preserve evidence. Typically, it involves the parties’ disclosure of information and the taking of sworn testimony. If discovery were a person, it would be schizophrenic–like Dr. Jekyll and Mr. Hyde. Discovery is a marvelous tool that allows good lawyers to efficiently learn the merits of their cases. In the wrong hands, discovery is a pestilence that mean lawyers use as a blunt force weapon, sowing chaos and anxiety in their wake. When abused, discovery is like a swarm of locusts that eats all crops. Judges spend far too much time refereeing discovery disputes.
A motion for summary judgment asks the courts to decide the case, based on the evidence, in one party’s favor without a trial. Judges often must sift through hundreds, if not thousands of pages of evidence to determine if a genuine issue of fact exists for the jury to decide.
Judges spend time reading, doing legal research, and writing orders that capture all of their rulings.
Judges schedule case management to set trials and discovery deadlines. Courts set status hearings to encourage the parties to finalize their pleadings or to argue old pending motions.
Case management is hard work and a never-ending task. To encourage give-and-take and compromise, courts require the parties to mediate their cases. In response, many cases settle.
The Honorable J. Layne Smith is a Circuit Judge, bestselling author, and public speaker. Email your questions to askjudgesmith@gmail.com.
