Prosecuting or defending a motion to dismiss or a motion for summary judgment can be a substantial undertaking. In a complex case a motion for summary judgment can consume a hundred hours or more of attorney time and tens of thousands of client dollars. At the same time, reviewing all of the submitted material and producing a reasoned opinion consume significant amounts of court resources, resources which are already stretched thin due to budgetary constraints. Too often attorneys and litigants file motions to dismiss or for summary judgment as a matter of course, even when those filings will, at best, remove only a portion of the claims from a case, while achieving little or no reduction in further litigation cost or trial time.
The Business Litigation Session of the Massachusetts Superior Court is attempting to tackle this issue with a recently issued procedural order. Effective on September 4, 2012, the order requires approval from the court to file a motion for partial summary judgment, or any other dispositive motion addressing fewer than all of the claims or issues as to a party. Prior to seeking court approval, a litigant must confer with all other parties to examine the costs and benefits of the motion, taking into account the time and effort involved in the motion itself, and its impact on the balance of the litigation. The parties must then request a status conference with the court to receive approval for, or denial of, the filing of the motion.
While the new order is in the early stages of implementation, and any reductions in such motions cannot yet be measured, litigants in the Business Litigation Session should reap significant benefits from the new order. Small businesses and other litigants with more limited resources will no longer have to expend significant time and money fighting dispositive motions as a matter of course. Counsel, meanwhile, will have to thoughtfully consider, and justify to the court, whether a partially dispositive motion is actually worth the time and effort, or simply a very expensive and time consuming exercise in futility.