Legal Literacy Lesson: Procedural Posture

From the outside, lawsuits can be confusing for a lot of different reasons. One of those reasons is that any civil suit is likely to go through many stages before the matter is truly finished (if it is ever truly finished). It takes a long time for most cases to wend through these stages, and it is easy to see the results at any particular stage as more final or indicative of a win or loss on the merits than they may actually be. These stages are sometimes called the procedural posture of the case, and understanding the different stages is important to interpreting any news about activity in a lawsuit.

Take a topical example:  recently a federal judge partially granted and partially denied the University of Illinois’ motion to dismiss claims against it by Steven Salaita. Most readers will be watching this case with interest, and most are likely pleased with the decision. But what does it really mean? Reports on the decision have tended to present it as a big win, with headlines saying that Dr. Salaita was “Vindicated in Federal Court” and that the judge “[Held] That U. of Illinois Broke Contract.” To be sure, Judge Leinenweber’s opinion is quite favorable to Dr. Salaita’s position, and it does mostly represent a win, though some of his claims against the university were dismissed with prejudice, meaning that he will not be able to press them further. The opinion is also notable for some of its musings on the untenable arguments made by the University in defending itself, particularly in claiming that it never had a contract with Dr. Salaita.

But ultimately, this opinion does one thing: it allows the suit to move forward through many subsequent stages. During the motion to dismiss stage, Dr. Salaita (theoretically) needed only to make a plausible case for each of his claims against the University. The University was trying to say he failed even to do that. At this stage, the judge is supposed to take all of the facts alleged in the plaintiff’s complaint to be true. If the plaintiff fails to make a plausible case that they deserve their day in court even when the facts alleged are interpreted most favorably, then the case is dismissed because there is no reason for it to continue. The motion to dismiss stage can be deadly for any suit, so it is certainly a sort of victory to survive past this stage, but it is really more survival than vindication.

From here the next big stage of Dr. Salaita’s case will be discovery — a period where both sides try to gather facts in the run-up to trial. Both sides will get access to emails and other communications, they may discover other people who have information, and they will have a chance to depose witnesses, a crucial part of a case both because it will reveal information and lock in the testimony of those witnesses for trial. After discovery, the University will likely move for summary judgement, a stage somewhere between motion to dismiss and a full trial, in which the University will claim that, given all the facts that have come out in discovery, Dr. Salaita will be unable to make his case. If the University fails there, there will be a trial, then there may be an appeal by the losing side.

(Pardon a brief detour in the discussion. Looming over the entire process is settlement. Discovery is very costly, so the University may be especially motivated to settle now that their motion to dismiss has been denied. Suppose that the University wants to depose 10 people, and suppose each deposition takes 8 hours. Depending on who is taking the deposition, the hourly billable rate might be anywhere from $450 to upwards of $1000. Suppose it’s something in the middle, maybe $700. Just the deposition time itself — setting aside preparation time and assuming that it’s just this one lawyer doing all the work — will cost the University $56,000. That’s a new professor’s salary or a few graduate student stipends for a year and that’s just taking depositions. There will also be time spent defending depositions (what the University will do when their witnesses are being deposed, which amounts to sitting there and occasionally objecting for the record), collecting and reviewing documents, and preparing for trial. The high costs of litigation may often make settlements a good economic proposition for both parties, which is why reading anything about the merits into the existence or amount of a settlement alone, as some did after the University of Colorado settled with David Barnett, is disfavored.)

Let’s return to our discussion of the motion to dismiss. With some caveats, winning at the motion to dismiss stage does not mean Dr. Salaita will definitely win if his case goes to trial. For one thing, he has requested a jury trial, so even if the opinion is read as a reflection of the judge’s views on the merits of the case, a jury might feel differently. When a plaintiff loses a motion to dismiss, however, this constitutes the final decision in the case (where “final decision” is a sort of term of art, the denial may be appealed, of course). For example, when Peter Ludlow’s suit against Northwestern and other individuals was dismissed, this was a reflection of the judge’s view that he had failed to make a case that the law had been violated even viewing the facts alleged in the light most favorable to him.

Any time you hear about a development in an investigation or lawsuit, figure out what the procedural posture of the suit is and do some investigation about what it means. Wikipedia provides helpful pages on these stages written in language that is typically easy for a layperson to understand. Doing this extra bit of research will provide you with necessary context as you evaluate the claims at issue in the dispute, the impact of the decision, and the future of the case.

4 thoughts on “Legal Literacy Lesson: Procedural Posture

  1. Yep, justice and freedom of speech is not free. It costs something. If one has an opinion on what someone’s value is “aweful human being” for what politics they support, then let me not be the student of such. This society only affords the most honesty and authentic, public thoughts for comedians and writers, everyone- do not apply.

  2. I think one reason this is being viewed by many as a big win for Salaita is the supposition that UIUC will be very reluctant to move into the discovery phase. Look at the number of embarrassing revelations that have already come to light (e.g., Wise’s emails). Who knows what else is waiting to be dredged up?

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