Civil Procedure Notes Page 9
LAW 5301 (4 credits)
Professor Pedro A. Malavet
Civil Procedure Notes Page 9
Burden of Persuasion vs. Burden of Production
- Persuasion: burden of convincing the trier fact, and the risk of a tie.
- Production: burden of avoiding a Directed Verdict, or, sometimes, SJ.
- Shift: Sometimes, however, the burden of production may shift, when the opposing party has carried its burden of persuasion so well that it would be entitled to DV.
- All facts must be viewed in the light most favorable to the nonmoving party. 404.
- Moving Party bears the burden under Rule 56(c) to show initially the absence of a genuine issue concerning material fact. 404405.
- Only then, must the opposing party present any contrary evidence. "Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented."
Requiring a Response under 56(e)
- If the Moving Party will bear the Burden of Persuasion at trial, then to win a Summary Judgment motion it must put "A" in the "must be true" area. If the motion is unopposed, they win.
- If the MP will NOT bear the BoPersuasion at trial, then to win an unopposed SJ motion it must:
- Traditional (MooreAdickes): Put "A" in "must
- be false". n. 1, p. 407.
- Louis: Put "A" in "could be true or false". 406.
- Currie: Simply assert, even argue that "A" is false. 406, bottom. _See also note 4 at page 409.
In reviewing the graphic in today's handout, you must view the arrows as "effort" lines, i.e., they represent the amount of effort that the party must exert in making their motion or response. Thus, the difference between Currie and the traditional approach is that traditionally the moving party had to affirmatively show that the material fact did not exist, and preclude even any inference of it (e.g., Adickes). Now, in effect, all they have to do is say that the party that will bear the burden of persuasion at trial has failed to move the needle from zero toward the truth area at all. One way of looking at it was that under the traditional approach the moving party had to move all the way from 100 and ram it down to zero, "the hard way". Now, the moving party yells from its starting point that the nonmoving party has failed to leave "0". You end up in the same place really, but the perspectives change, and the way you got there is totally different as well. You can put a shadow of "3" at the same location as "1". The difference is the amount of effort required to get there. In the arrow of effort by the moving party that does not bear the burden of proof, the Currie approach reflects very little effort.
Note also that Professor Louis wanted an approach that required the moving party to work and present some evidence tending to challenge the existence of a material fact. Not a simple motion, a la Currie, and not conclussively disproving the existence of a material fact, a la MooreAdickes. Ask yourselves however, if Justice Rhenquist adopted Louis' idea throught he back door, when he talks about not ignoring the totality of the record. Or is he just stating the obvious requirement under Rule 11.
Casebook Excerpts (From Marcus, Reddish & Sherman, CIVIL PROCEDURE A MODERN APPROACH (West 1995)).
 "[t]he term 'burden of proof' is used in our law to refer to two separate and quite different concepts. * * * The two distinct concepts may be referred to as (1) the risk of nonpersuasion, or the burden of persuasion or simply persuasion burden; (2) the duty of producing evidence, the burden of going forward with the evidence, or simply the production burden or the burden of evidence." James, Burdens of Proof, 47 Va.L.Rev. 51 (1961).
 While the concept of burden of persuasion is designed to guide the fact finder (often the jury), the burden of production concept serves as a means of controlling the jury: unless the party upon whom that burden has been placed presents sufficient evidence to justify a verdict in his favor, the judge will take the case out of the hands of the jury by granting a directed verdict, because a jury verdict in that party's favor would be irrational.
One further idea should be mentioned: the concept of burden shifting. Once the court has placed the burden of persuasion on a party (usually the plaintiff, except as to proof of affirmative defenses), the burden generally remains on that party throughout the litigation. In contrast, the burden of production may shift from party to party. A party with a burden of production may conceivably do more than simply meet his burden (i.e. present enough evidence that a reasonable finder of fact could find for him). He may shift his burden, by presenting enough evidence that a reasonable finder of fact must find for him. At that point, the burden of production has shifted to the opposing party, who then must respond with evidence of his own, sufficient to allow a reasonable finder of fact to find for him.
[In the OLD Adickes system, the moving party that did not bear the Burden of Persuasion at trial had to make a showing so strong as to justify a judgment as a matter of law in its favor, i.e.,
conclussively establish that it was entitled to judgment before the nonmoving party had to respond at all. After Celotex, a mere argument that the nonmoving party has failed to get out of zero is enough to require a respons. Absent a reply or upon one that fails to establish that an issue of material fact exists,entry of Summary Judgment is appropriate.]
 As the moving party, respondent had the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party. Respondent here did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served.
[NOTE: the court is requiring Kress to foreclose even an inference of conspiracy.]
 "[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented." Because respondent did not meet its initial burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affidavits.
 To have avoided conceding this fact for purposes of summary judgment, petitioner would have had to come forward with either (1) the affidavit of someone who saw the policeman in the store or (2) an affidavit under Rule 56(f) explaining why at that time it was impractical to do so.
[This is the dictum that Professor Currie indicates supports a more liberal interpretation of 56(c). However, ask yourselves, is Justice Rhenquist being more liberal in his interpretation of 56(e) as well as 56(c) in Celotex?]
 4. There are thus three basic approaches to the problem. Under the traditional approach, in order to require a nonmovant to respond a movant for summary judgment who would not have the burden of production at trial must shift a burden onto the nonmovant, whether or not the movant would have the burden of production at trial. Under Professor Louis' approach, such a movant would have only to meet a burden of production, or to demonstrate the absence of proof of an essential element of the nonmovant's case. Professor Currie, in contrast, would treat summary judgment in the same manner as a directed verdict motion at trial, imposing no burden whatsoever on a movant who would not have the burden of production at trial, in order to require the nonmovant to come forward with her supporting evidence.
 Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
 Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file."
 We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.
 Instead, as we have explained, the burden on the moving party may be discharged by "showing"that is, pointing out to the District Courtthat there is an absence of evidence to support the nonmoving party's case.
[413-414] Our conclusion is bolstered by the fact that district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence. * * * It would surely defy common sense to hold that the District Court could have entered summary judgment sua sponte in favor of petitioner in the instant case, but that petitioner's filing of a motion requesting such a disposition precluded the District Court from ordering it.
 The parties had conducted discovery, and no serious claim can be made that respondent was in any sense "railroaded" by a premature motion for summary judgment. Any potential problem with such premature motions can be adequately dealt with under Rule 56(f), which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.
 or the question whether such a showing, *** if reduced to admissible evidence, *** would be sufficient to carry respondent's burden of proof at trial.
On remand from the Supreme Court, the same panel of the court of appeals held that plaintiff's reliance on the letter from the official of Louis Catrett's former employer, coupled with plaintiff's indication that this official would be a witness at trial, sufficed to show a genuine issue as to whether Catrett was exposed to Celotex products. [Note that though the letter was probably inadmissible, it could be reduced to admisisble evidence, by calling the witness at trial. See also note 8 at page 423]
 The majority of postCelotex lower courts have read that decision not to impose a significant triggering burden on a movant who lacks the burden of production at trial. Indeed, many lower court decisions following Celotex have either reduced the burden dramatically or ignored it completely.
[In spite of Justice Rehnquist's references to the available record, and to the opportunity to conduct discovery, the lower courts have interpreted Celotex to allow pretty bare assertions of insufficiency to fulfill the moving party's obligations under 56(c). In effect, to the extent that Professor Louis's approach is still alive at all, it is really in shifting to the nonmoving party the burden of showing where in the available record there is information that supports its contention. Consider, in this context, the rule 11 and workproduct concerns.]
Once the burden of production of Rule 56(c) has been met, what must the opposing party do to avoid the entry of Summary Judgment against them, pursuant to Rule 56(e)?
First: There must be a response. Failing to respond, after the burden of production of Rule 56(c) has been met, will result in entry of Summary Judgment.
Second: A response must set forth enough facts to get the matter out of the extreme areas where no reasonable jury could find the material fact to be true or false, i.e, to put it in the "could" area of the graphics we used in class.
 As to the firstcopyingthe evidence may consist (a) of defendant's admission that he copied or (b) circumstantial evidenceusually evidence of accessfrom which the trier of the facts may reasonably infer copying.
After listening * * * to the compositions as played in the phonograph recordings submitted by defendant, we find similarities [between plaintiff's and defendant's compositions]; but we hold that unquestionably, standing alone, they do not compel the conclusion, or permit the inference, that defendant copied. The similarities, however, are  sufficient so that, if there is enough evidence of access to permit the case to go to the jury, the jury may properly infer that the similarities did not result from coincidence.
 Although part of plaintiff's testimony on deposition (as to "stooges" and the like) does seem "fantastic," yet plaintiff's credibility, even as to those improbabilities, should be left to the jury. If evidence is "of a kind that greatly taxes the credulity of the judge, he can say so, or, if he totally disbelieves it, he may announce that fact, leaving the jury free to believe it or not." * * * We should not overlook the shrewd proverbial admonition that sometimes truth is stranger than fiction.
 It follows that, as credibility is unavoidably involved, a genuine issue of material fact presents itself. With credibility a vital factor, plaintiff is entitled to a trial where the jury can observe the witnesses while testifying. Plaintiff must not be deprived of the invaluable privilege of crossexamining the defendantthe "crucial test of credibility"in the presence of the jury.
Clark, J, Dissenting,
 My brothers, in a trusting belief in the virtues of crossexamination, rely upon a trial to develop more. But crossexamination can hardly construct a whole case without some factual basis on which to start.
[Identifying the allegations was crucial here:]
first alleged that the defendant, Albert E. MacDougall, had said of the plaintiff at a directors' meeting of the "Queensboro Corporation": "You are stabbing me in the back." The second count alleged that MacDougall had written a letter to one Dorothy Russell Hope, the plaintiff's wife's sister, containing the words: "He"the plaintiff"has made false statements to my clients in Philadelphia," and "He has presented bills for work he has not done." The third count alleged that MacDougall had said to a lawyer, named Almirall, that a letter sent out by the plaintiff to the shareholders of the "Queensboro Corporation" was "a blackmailing letter." The fourth count alleged that MacDougall's wife, as MacDougall's agent, had said to Mrs. Hope that the plaintiff had "written and sent out a blackmailing letter."
supporting their motion by affidavits of MacDougall, MacDougall's wife, and Almirall, and by a deposition of Mrs. Hope, which the plaintiff himself had already taken. Each of the defendants unequivocally denied the utterance of the slanders attributed to him or her; and Almirall and Mrs. Hope denied that he or she had heard the slanders uttered.
[We discussed yesterday that Plaintiff's response consisted of inadmissible doublehearsay. This is a problem, because the evidence could not be made admissible in court.]
 [If] the cause went to trial, the plaintiff would have no witnesses by whom he could prove the slanders alleged in the third and fourth counts, except the two defendants, Almirall and Mrs. Hope; and they would all deny that the slanders had been uttered. On such a showing how could he escape a directed verdict? It is true that the carriage, behavior, bearing, manner and appearance of a witnessin short, his "demeanor"is a part of the evidence.
Moreover, such evidence may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies. [Remember Humprey Bogart in "The Caine Mutiny"].
Nevertheless, although it is therefore true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him.
 It might appear for example that upon a deposition a witness had been recalcitrant, or crafty, or defiant, or evasive, so that the immediate presence of a judge in a courtroom was likely to make him tell more. That would be another matter; and it might be enough. But the plaintiff is in no position to invoke such a possibility for he has refused to try out these witnesses upon deposition, where he might discover whether there was any basis for supposing that awe of a judge was necessary to make them more amenable.
 [Judge Hand's statement about the Directed Verdict standard at page 428 is wrong.]
But this is exactly not the rule in the federal courts: The wellsettled rule is that, in passing on a motion for a directed verdict the trial judge always must utterly disregard his own views of witnesses' credibility, and therefore of their demeanor; that he believes or disbelieves some of the testimony is irrelevant.
Does the law give too much weight to demeanor evidence? In general, the mannerisms that people tend to associate with lying are characteristics of people who are simply nervous. Many witnesses are nervous about testifying, and it may be that some liars are not nervous about lying. This should make us a bit uneasy about the heavy emphasis placed on demeanor evidence. Moreover, some psychological research indicates that people are not effective at detecting lies from observing the speaker.
One old study even concluded that people make more accurate decisions on the basis of written materials than observation of witnesses. Marston, Studies in Testimony, 15 J.Amer.Inst.Crim.Law & Criminology 5, 2226 (1924). [I will remind you that Eropean systems have a preference for written materials built into their procedure and evidence rules].
[While it is clear that what the nonmoving party must do to survive the Summary Judgment Motion is to put the issue into the "Reasonable Jurors can Find ___" cagetory, just exactly how that is accomplished is somewhat messy.
[The notes cover this. Let me direct your attention in particular to the Matsushita, Kodak and Anderson v. Liberty Lobby cases.]
I will lecture on trial phases; I want to use this material to further explain the concepts of Burdern of Persuasion and Burden of Production. If you have questions, this will be the time to address them.
Another major point of this material is for you to see how the pleading, motions and discovery process are a prelude to, and therefore largely defined and constrained by our expectations of what is supposed to happen at trial.