In a striking move, the Seventh Circuit Court of Appeals concluded its recent opinion in Malin v. Hospira, Inc., No. 13-2433 (7th Cir. Aug. 7, 2014), with a lengthy and highly critical commentary on modern summary judgment practice. The Seventh Circuit denounced defense counsel’s approach to summary judgment practice, which included “cherry-picking isolated phrases from [the plaintiff’s] deposition and [claiming] that these ‘admissions’ doomed [the plaintiff’s] case,” finding that this approach resulted in defense counsel misrepresenting the record and the plaintiff’s legal theories. Consequently, the Seventh Circuit reversed the lower court’s grant of summary judgment against the plaintiff, noting that defense counsel’s summary judgment approach was both costly and wasteful because any judgment obtained with this tactic would necessarily be reversed by an appellate court. Although the Seventh Circuit’s criticism of defense counsel was uniquely harsh, the Seventh Circuit is not alone in criticizing practitioners’ approach to summary judgment practice. In light of these criticisms, should practitioners revise their approach to summary judgment practice?
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