The TRUTH about Summary Judgments

The TRUTH about Summary Judgments
(and the wind turbine lawsuit)
By Susan M. Halpern
Former Addison Councilmember (1992-1999)

Those who would divide us will attack the current council no matter what they do (or don’t do), no matter what the subject, and without regard to the merits. They are unconstrained by the truth, and will attack these public servants whether it is rational to do so or not.  It’s just what they’re about.  So, the usual round of attacks followed the November 10th summary judgment hearing in the wind turbine lawsuit.  Since this is my area of expertise, I thought I would clear up a few misconceptions.

First, clients don’t typically attend summary judgment hearings. In thirty-four plus years of practice, I can recall only one time when a client attended a summary judgment hearing. So, the fact that our councilmembers didn’t attend is meaningless.  They weren’t expected to be there, and their presence or absence was entirely irrelevant to the question before the court.  Trust me, judges conducting such hearings are very focused on the merits of the dispute.  They aren’t the slightest bit concerned with who is or isn’t watching.

Second, the majority of the current council is gainfully employed. Exactly the profile one would expect in a small town with a city manager/council form of government.  Being on the council is not a full-time job.  It was never intended to be a full-time job and, frankly, the last thing we want is meddling councilmembers who are interfering with the work of our professional staff.  So, the suggestion that our current council doesn’t care about Addison because they didn’t attend the summary judgment hearing is patently absurd.

Oh, and that also includes those who were on vacation. Vacations are allowed.  Vacations don’t evidence a lack of concern for Addison, and they sure shouldn’t be a source of an attack on those who give their time and talents to our Town.  Isn’t it time to give such rhetoric a long-needed rest?

Third, the precise issue before the court in connection with summary judgment is whether there is a fact question justifying a trial on the merits. Judges focus on the claims and the evidence presented in the motion and response, something we refer to as the “record.”  The summary judgment “record” can contain many different things, including affidavits, documents, discovery responses and deposition excerpts.

Regarding the latter, the case law tells us that we should NOT submit entire depositions but, rather, cite the court to the specific testimony and include such excerpts in the record. I have never once heard of a court asking lawyers to submit the full transcripts of depositions cited in the record.  I can’t imagine why a court would expand a summary judgment record on its own motion.  It’s not even contemplated in the rules.  So, let’s just say I’m skeptical.

Third, as the respondent to the motion, Addison isn’t looking to win the lawsuit at this stage. Rather, it is hoping to stay in the game, i.e., to not lose summarily at this stage.  It’s a bit technical, but the bottom line is that if Addison wins (i.e., defeats the motion), that simply means that Addison will have the opportunity to have a trial on the case.

Fourth, the response filed by our lawyers was thorough and well-constructed. It included an enormous amount of information, and the lawyers did a masterful job organizing it and presenting arguments in a forceful and persuasive way.  Nonetheless, I continue to question why they chose to include a fraud claim, particularly without interviewing Ron Whitehead or Lea Dunn first.  It’s inexplicable, except that it mirrors the heavy-handed tactics of the prior administration, which is my guess as to what happened here.  And, while the response on the fraud claim (citing testimony from Ron Whitehead that inferentially suggests that representations were made and arguing that Addison needs more time for discovery) should be enough to defeat the summary judgment motion, that doesn’t mean the claim will succeed at trial.  I continue to be of the opinion that this claim is weak and detracts from what otherwise appear to be reasonable and well-constructed contract claims.

Finally, this bit about “fighting for Addison” is silly rhetoric. What are these people suggesting, picketing the courtroom?  Trying to write to the judge?  It’s ridiculous.  The fact is that the council can’t do anything to “fight” for a result in a lawsuit, other than to hire responsible, capable counsel and staff.  In this case, the current council inherited both.

Further, our Charter tells us that the business of Addison is conducted by the staff, NOT the council. The council’s job is to set policy, provide the resources staff needs to conduct its work in carrying out those policies, and get out of the way.  Among other things, the council should not be micromanaging any lawsuit, including this one.  My suspicion is that such micromanagement is exactly how this little fraud side show occurred in the first place.  All of which means that suggesting that the council should “fight” in the context of a lawsuit is meaningless and downright silly.

Here’s the bottom line: Addison’s voters have now elected seven councilmembers who believe in and respect our Charter and our chosen system of government. They understand their roles.  They “fight” for us every day, by being ambassadors for Addison, by giving thousands of hours of their time to our community, and by focusing on uniting Addison and moving it forward.  That’s what they were elected to do, and they’re doing it well.

In the meantime, I am cautiously optimistic regarding Addison’s chances of defeating the summary judgment motion. We’ll see what happens from there.