TRIAL ON THE PAPERS:
AN ALTERNATIVE TO CROSS-MOTIONS
FOR SUMMARY JUDGMENT

by
MORTON DENLOW(1)


I. INTRODUCTION

For many judges the thought of cross-motions for summary judgment is unpleasant if not downright painful. It represents a stack of documents that could fill the bed of a pick up truck; it can involve up to two briefs in support of the motions for summary judgment, two response briefs and two reply briefs, for a total of six briefs to read by the judge and law clerk. In addition, in the Northern District of Illinois, it includes two Local Rule 12(M) Statements of Material Facts and two Local Rule 12(N) Responses to the Local Rule 12(M) Statements of Material Facts.(2) Moreover, if the case entails administrative review, there is also an administrative record. Preparing summary judgment is a burden for lawyers and expensive for clients. Consequently, with all this effort and expense, one would expect a decision disposing of the case. However, this is not always the result. The fact that both parties are simultaneously arguing that there is no genuine issue of material fact does not necessarily make it so.(3)

The standard for summary judgment requires the facts to be viewed in the light most favorable to the non-moving party.(4) Summary judgment may only be granted when there is no "genuine issue as to any material fact."(5) This is when a major problem with cross-motions for summary judgment is encountered. The parties and the court have invested substantial time and effort, however, cross-motions for summary judgment can both be denied. As a result, the litigation has not been advanced and the work put in by the lawyers and the court has been largely wasted.(6)

Courts sometimes remedy this situation by conducting a trial on the papers based on the summary judgment record.(7) In a trial on the papers the court draws inferences, applies the preponderance-of-the-evidence standard, and decides the case. For example, United States v. Gears involved an action brought by the United States to recover the cost of the defendant's education at the Naval Academy. The court denied cross-motions for summary judgment "finding varying inferences permissible from largely undisputed facts."(8) Thereafter, the parties agreed to submit the case for decision on the summary judgment record, with supplemental briefing. Consequently, the court made its findings in accordance with Fed. R. Civ. P. 52(a) and entered judgment.(9) By doing so, the court was able to salvage much of the work expended in the cross-motions for summary judgment. However, this was only a partial remedy because of the duplication of effort required in supplemental briefing and a second decision.

II. THE ALTERNATIVE

A. A Trial on the Papers

So what is the alternative to cross-motions for summary judgment? How is it possible to avoid a non-decision or a second proceeding and move directly to a final decision? The answer is a trial on the papers. When the parties agree the papers contain all of the necessary materials for a decision and the court can draw inferences from the papers, a trial on the papers results in a decision on the merits.(10)

Although recognized by courts and scholars, this tool is not widely used.(11) In Acuff-Rose Music, Inc. v. Jostens, Inc., the court held that if the parties stipulate, a court may conduct a bench trial on the record compiled in summary judgment proceedings. The court emphasized the parties must clearly waive their right to a full trial and the decision must be rendered under Rule 52(a) rather than Rule 56. Because the parties agreed to submit the case on a paper record and expressly waived their right to a full trial, the court reviewed the district judge's decision pursuant to the clearly erroneous trial standard, not the de novo summary judgment standard.(12)

Scholars have also noted the option of using this procedure.

Finally, it should be noted that when the court is ruling on cross-motions, the facts sometimes become fully developed at the hearing on the motions. When this occurs in a nonjury case the court may proceed to decide the factual issues and render a judgment on the merits without any further delay if it is clear that there is nothing else to be offered by the parties and there is no prejudice in proceeding in this fashion. As a practical matter, of course, this procedure amounts to a trial of the action and technically is not a disposition by summary judgment.(13)

B. Advantages

There are a number of advantages to parties and to the court from the use of a trial on the papers as compared to cross-motions for summary judgment.(14) First, a trial on the papers results in a decision in favor of a party rather than a possible non-decision. Given the crowded dockets facing most judges, it is preferable to devote one's time to a process which will generate a resolution. In a trial on the papers, the court's energies are directed to deciding the case in favor of a party even where a fact question exists.

Second, a trial on the papers is less expensive because there is no need for live witnesses or a second round of briefing or hearings. Sometimes the amounts in dispute do not warrant the expense of bringing in witnesses from out of town. In those circumstances, parties may be willing to forego live testimony and instead rely upon depositions or affidavits. This is particularly appropriate where the issue of witness credibility does not stand at the heart of the dispute. For example, in May v. Evansville-Vanderburgh, the issues in dispute involved the scope of the First Amendment free speech clause and the factual record was adequately developed without live witness testimony. Although the case was presented on the basis of cross-motions for summary judgment, the appeals court concluded that the parties had in effect asked the trial judge to decide the case as a trial on the papers.(15)

Third, a trial on the papers avoids scheduling problems. Because the Court is able to consider the papers at its convenience, it avoids the logistical issue of assembling counsel and witnesses for trial. This can result in an earlier ruling because it does not require the court, the attorneys and the parties to block out trial time.

Fourth, a trial on the papers should result in fewer appeals because a deferential standard of review applies. One reason for the abundance of appeals from grants of summary judgment is the de novo standard of review.(16) On the other hand, the clearly erroneous standard of review applies to a trial on the papers.(17) It is easier to establish a question of fact exists than to establish a court clearly erred. Because the chances of reversal are lower, parties will be less likely to appeal a decision arising out of a trial on the papers.

Finally, appeals from trials on the papers should not result in remands for trial. At the appellate level, when a grant of summary judgment is reversed, the case returns to square one in the trial court.(18) On the other hand, if a trial on the papers decision is reversed, the appellate court should direct a final judgment for the appealing party because the entire record is before it.(19) Consequently, the use of a trial on the papers will lead to a final resolution on appeal and no trials on remand.

C. Disadvantages

A trial on the papers is not without possible disadvantages. First, a trial on the papers requires a party to waive its right to present live testimony. In those cases in which credibility determinations are at the heart of the case, the waiver of the right to bring in live witnesses does not make sense. A decision maker, be it a judge or a jury, can best decide credibility by seeing the witness.

Second, a trial on the papers requires the parties to waive their right to a jury trial. A jury trial has the potential of providing a tactical advantage to one party over the other. One of these tactical advantages, for example, might be the possibility of receiving a large damage award from a jury. When a party waives its right to a jury trial by proceeding with a trial on the papers, any possible tactical advantage created by a jury trial is lost.

Third, a trial on the papers can result in problems in creating a record. Reliance on

depositions and other documents in a trial on the papers leaves open the question of when and how objections will be made and decided. In a normal trial, a court reporter immediately records all objections and rulings. If in a trial on the papers the parties intend for the court to rule on objections to deposition questions or to documents, the record could become difficult to perfect and preserve. If there are going to be significant objections to the paper record, a paper trial would not be in order. An agreed record makes for the best type of trial on the papers.

D. Procedures

The court may not institute a trial on the papers on its own motion. When faced with cross-motions for summary judgment, the court must remain faithful to the summary judgment standards and procedures. Summary judgment is proper only when the evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."(20) Cross-motions for summary judgment do not change the standard.(21)

The court should remain alert for parties who are considering filing cross-motions for summary judgment. At a status or scheduling conference, the court should regularly inquire as to the parties' intentions regarding settlement, trial or possible dispositive motions. If the parties raise the prospect of cross-motions for summary judgment, the court should raise the trial on the papers alternative and ask the parties to consider whether it has utility for the case. A re review of the advantages and disadvantages may cause parties to opt for a trial on the papers. This discussion should take place before a motion for summary judgment is filed.

Parties must consent to a trial on the papers and waive their right to a jury trial. However, the filing of cross-motions for summary judgment is not sufficient to demonstrate the consent of the parties.(22) If they desire to proceed with a trial on the papers, the parties should clearly stipulate, preferably in writing, that they have foregone their right to a full trial.(23) Such waiver must be explicit.(24) In addition, consent may also be shown by acquiescence in a procedure of "submission on the merits of the claim of plaintiff."(25) The court should make clear to the parties that the decision will be rendered under Federal Rule of Civil Procedure 52(a) rather than Rule 56, and the court will be deciding fact questions, if any. This will avoid a later complaint by the losing party that although it believed that it was entitled to prevail as a matter of law, it did not expect the court to make factual determinations.

Finally, following the consent of the parties and after moving to a trial on the papers, the court is required to enter findings and conclusions in accordance with Federal Rule of Civil Procedure 52(a).(26) Therefore, in proceeding with a trial on the papers, the parties should be requested to submit proposed findings of fact with page references to the record and conclusions of law. These submissions along with a closing argument should be sufficient to decide the case.

III. TYPES OF CASES IN WHICH A TRIAL ON THE PAPERS SHOULD BE CONSIDERED

Trials with live witnesses should not be discouraged. However, when the parties are contemplating cross-motions for summary judgment, there are several types of cases in which it would benefit courts, parties and attorneys to consider a trial on the papers.

A. Administrative Review

The first of type of case for which a trial on the papers is appropriate is administrative proceedings in which the court is making a de novo review. In such cases there has been an administrative hearing which has produced a complete record. As a result, the district court decides the case based on the administrative record. For example, cases under the Individuals with Disabilities Education Act ("IDEA")(27) fall into this category. In cases under the IDEA, the district court makes a preponderance of the evidence determination based on the administrative record and other evidence it may receive.(28) A trial on the papers is appropriate in this type of administrative review if the parties elect not to call live witnesses. However, a trial on the papers should not be used after cross-motions for summary judgment in administrative cases but instead of cross-motions for summary judgment.(29)

B. Avoiding Expense of Trial With Live Witnesses

The second type of case in which trials on the papers may be beneficial are cases in which the parties seek to hold down trial expenses. For instance, the dollar amount at stake may be so little that it would be far outweighed by the expense of trial. A trial on the papers would give parties a viable option to present their case. For instance in Barlow v. Evans, a plaintiff brought a case as a class action. At issue was the legality under the Truth in Lending Act of a $500.00 loan Plaintiff obtained from the defendant pawnbroker which was secured by Plaintiff's twelve year old car. With $500 at issue in the case, it may not have been financially beneficial for the plaintiff to fund a trial. The parties brought cross-motions for summary judgment which were granted in part and denied in part on the grounds that there were material fact questions to be decided by the jury.(30) In that such a small amount was at stake and there was the possibility that the class would not be certified (the court had not yet decided the plaintiff's motion for class certification), it may have benefitted the parties financially if the court could have quickly brought the case to final resolution with a trial on the papers. A trial on the papers provides parties with an opportunity to receive a decision on the merits where cost considerations may otherwise prevent a trial with live witnesses.

C. Legal Issues Predominate

A third type of case in which a trial on the papers may make sense is when legal issues predominate. A good example of this type of case is Schlytter v. Baker, which involved the legality of a statute. The court reemphasized the general rule which requires the denial of cross-motions for summary judgment if a genuine factual dispute exists regarding a material issue.(31) However, the court went on to state that "cross motions may be probative of the non-existence of a factual dispute when, as here, they demonstrate a basic agreement concerning what legal theories and material facts are dispositive."(32) Because both parties were arguing over the constitutionality of a statute on its face, the issue was primarily legal. When legal issues predominate, the time and expense of a jury trial can be avoided. A trial on the papers enables the parties to promptly obtain a decision on the disputed question of law.

IV. INCREASING THE USE OF A TRIAL ON THE PAPERS

Although trials on the papers are recognized, they are infrequently used. The remaining question is how to encourage lawyers and judges to consider the procedure as an alternative to cross-motions for summary judgment, or in other appropriate circumstances. Courts and attorneys must be open to the procedure. This requires increased awareness of the procedure and an understanding of its advantages and disadvantages. The Federal Rules of Civil Procedure should be amended to explicitly deal with a trial on the papers. As it stands, Rule 52 states that "[i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon . . . ."(33) The rule also goes on to state that "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous . . . ."(34) Thus Rule 52(a) contemplates a bench trial based only on documentary evidence. However, further clarification would be helpful. Judges and lawyers would then be informed that this option is consistent with and sanctioned by the Federal Rules. This will result in fewer cross-motions for summary judgment.

V. CONCLUSION

Cross-motions for summary judgment can lead to a tremendous waste when they are denied. A trial on the papers is a useful alternative. It offers the advantage of a final decision at less cost. Courts should encourage the use of trials on the papers to avoid the problems inherent in cross-motions for summary judgment. The Federal Rules of Civil Procedure should be amended to clarify and encourage this practice.





Endnotes:

1. Judge Morton Denlow is a U. S. Magistrate Judge in the Northern District of Illinois. Judge Denlow expresses his thanks to his current law clerk, Faith E. Bugel, J.D. Northwestern University Law School, 1998, for her valuable assistance in preparing this article.

2. N.D. Ill. Gen. R. 12(M) and 12(N).

3. See e.g., Berkshire Life Ins. Co. v. Owens, 910 F. Supp. 132 (S.D.N.Y. 1996) (denying cross-motions for summary judgment on the issue of whether insurance applicant committed fraud); Ehrlich v. Nynex Corporation, 949 F. Supp. 213 (S.D.N.Y. 1996) (denying cross-motions for summary judgment in ERISA pension benefits action); Gerrish Corporation v. Aetna Casualty and Surety Co., 949 F. Supp. 236 (D. Vt. 1996) (denying cross-motions for summary judgment in declaratory judgment action regarding insurance policy); Gonnuscio v. Seabrand Shipping Ltd., 968 F. Supp. 524 (D. Or. 1997) (denying cross-motions for summary judgment in negligence suit brought under the Longshore and Harbor Workers' Compensation Act); The Rouse Company v. Federal Insurance Company, 991 F.Supp. 460 (D. Md. 1998) (denying cross-motions for summary judgment in declaratory judgment action under insurance policy).

4. Larimer v. Dayton Hudson Corp., 137 F.3d 497, 500 (7th Cir. 1998).

5. Fed. R. Civ. P. 56(c).

6. See, e.g., NBASE Communications, Inc. v. American Nat'l Bank & Trust, 8 F. Supp. 2d 1071, 1078 (N.D. Ill. 1998) (denying cross-motions for summary judgment in a case involving claim of unjust enrichment because there was a genuine issue of material fact regarding notice which "prevents either party from prevailing on its motion for summary judgment").

7. See United States v. Gears, 835 F. Supp. 1093 (N.D. Ind. 1993).

8. Id. at 1094.

9. Id. at 1094-95.

10. See Nielsen v. Western Elec. Co., 603 F.2d 741, 743 (8th Cir. 1979) ("There is no reason why parties cannot agree to try certain issues on the merits and if the parties have done so, we properly may treat such proceeding as a trial on those issues even though cast in the form of a motion for summary judgment.")

11. See Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142 (2d Cir. 1998); May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir. 1986); Nielsen v. Western Elec. Co., 603 F.2d 741, 742 (8th Cir. 1979) (not a full trial on the papers because a witness was called); Starsky v. Williams, 512 F.2d 109, 112-13 (9th Cir. 1975).

12. Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-44 (2d Cir. 1998).

13. 10A Charles Alan Wright et al., Federal Practice and Procedure 2720 (3d ed. 1998) (footnotes omitted). See also William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions 39-40 (1991) ("A court may determine that a full trial would add nothing to the paper record and, after proper notice, decide a case on that record, making a decision on a trial without witnesses rather than on summary judgment.")

14. [S]ometimes both parties move for summary judgment because they do not want to bear the expense of trial but instead want the trial judge to treat the record of the summary judgment proceeding as if it were the trial record. In effect the judge is asked to decide the case as if there had been a bench trial in which the evidence was the depositions and other materials gathered in pretrial discovery.

May v. Evansville-Vanderburgh, 787 F.2d 1105, 1115 (7th Cir. 1986).

15. Id.

16. See, e.g., Huntzinger v. Hastings Mut. Ins. Co., 143 F.3d 302, 306 (7th Cir. 1998).

17. Fed. R. Civ. P. 52(a).

18. See, e.g., Ford Motor Company v. U.S., 157 F.3d 849 (Fed. Cir. 1998) (reversing grant of cross-motion for summary judgment and remands because genuine issue of material fact found to exist); Glass v. Dachel, 2 F.3d 733 (7th Cir. 1993) (reversing grant of cross-motion for summary judgment because trial court made a premature credibility determination).

19. But see Banque Franco-Hellenique de Commerce v. Christophides, 106 F.3d 22 (2d Cir. 1997). In that case the trial court had held a trial on the stipulated record after which it issue a decision in favor of the defendant. Id. at 24. Instead of ruling in favor of the plaintiff, the Second Circuit vacated and remanded. Id.

20. Fed. R. Civ. P. 56(c). See also Huntzinger v. Hastings Mut. Ins. Co., 143 F.3d 302, 306-07 (7th Cir. 1998).

21. Huntzinger, 143 F.3d at 306-07. See also Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) ("[T]he standards upon which the court evaluates the motions for summary judgment do not change simply because the parties present cross-motions.").

22. [C]ourts sometimes are faced with cross-motions for summary judgment. The fact that both parties simultaneously are arguing that there is no genuine issue of fact, however, does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit. . . . In short, the mere fact that both parties seek summary judgment does not constitute a waiver of a full trial or the right to have the case presented to a jury.

10A Charles Alan Wright et al., Federal Practice and Procedure 2720 (3d ed. 1998). See also Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 230 (7th Cir. 1996) ("The parties did not consent to waive trial. The filing of cross-motions for summary judgment is not such a waiver.").

23. Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-3 (2nd Cir. 1998). See also Market Street Assoc. Ltd. Partnership v. Frey, 941 F.2d 588, 590 (7th Cir. 1991) ("The filing of cross motions for summary judgment must be distinguished from the case in which the parties stipulate that the judge may enter final judgment on the record compiled in the summary judgment proceedings. . . . If they do that, they waive their right to a trial.") (citations omitted).

24. It is true that Miller told Judge Gordon that he was willing to waive a trial and have the case decided on the summary judgment papers, and that LeSea said that it thought the case could be disposed of that way. But this was not an explicit waiver of LeSea's right to a trial.

Miller, 87 F.3d at 230.

25. The parties waived jury trial and submitted all questions of fact relating to [their claims] . . . to the court for determination. It already has been shown that there were questions of fact upon which the parties were at issue. Now, while summary judgment cannot be granted where there are questions of fact to be disposed of, even by consent of all concerned, there is no reason why parties cannot agree to try a case upon affidavits, admissions and agreed documents. In effect, that is what was done here. No objection whatever was made at the time of submission that there were questions of fact which could not be decided upon the evidence before the trial court.

Gillespie v. Norris, 231 F.2d 881, 883-84 (9th Cir. 1956).

26. "In all actions tried upon the facts without a jury . . . , the court shall find the facts specially and state separately its conclusions of law thereon . . . ." Fed. R. Civ. P. 52(a).

27. See, e.g., Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997).

The standard of review under which this court considers [Plaintiff's] challenge differs from that governing the typical review of summary judgment. The Individuals with Disabilities Education Act dictates that the district court "shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. 1415(e)(2). When neither party has requested that the district court hear additional evidence . . . there is nothing new presented only to the district court; thus "the motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record." Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994), cert. denied, 513 U.S. 839, 115 S.Ct. 123, 130 L.Ed.2d 67 (1994). Despite being termed summary judgment, the district court's decision is based on the preponderance of the evidence. 20 U.S.C. 1415(e)(2); Hunger, 15 F.3d at 669. See also Board of Educ. of Oak Park v. Illinois State Bd. of Educ., 21 F. Supp. 2d 862, 868 (N.D. Ill. 1998).

Id.

28. 20 U.S.C. 1400 et seq. (1998).

29. See, e.g., Board of Educ. of Oak Park v. Illinois State Bd. of Educ., 21 F. Supp. 2d 862, 868 (N.D. Ill. 1998).

30. Barlow v. Evans, 992 F. Supp. 1299, 1302, 1311 (M.D. Alabama 1997).

31. Schlytter v. Baker, 580 F.2d 848, 849 (5th Cir. 1978).

32. Id. at 850.

33. Fed. R. Civ. P. 52(a).

34. Id.