TRIAL ON PAPERS OR TRIAL BY PAPERS - A NEW TREND OF GETTING THE BEST OUT OF THE LEGAL SYSTEM

http://www.hoeyfarina.com/judge-advocates-trial-papers-avoid-mental-gymnastics JUDGE ADVOCATES 'TRIAL ON PAPERS' TO AVOID 'MENTAL GYMNASTICS' January 22, 2004 Steven P. Garmisa Hoey & Farina Attorney When a senior case law editor for Lexis-Nexis moves to town and needs an attorney, you know she's got the tools for finding the go-to lawyer for her particular problem. In the case of a Lexis editor who filed a claim for long-term disability benefits after moving from Michigan to Evanston, I was curious to see who she picked. Maybe Wendy Crespo checked the Law Journals database to see who in Illinois wrote the most significant articles on disability claims under the Employee Retirement Income Security Act. Whatever she did, Crespo wound up hiring Chicago lawyer Mark D. DeBofsky. Among numerous other publications, DeBofsky has written for TRIAL ("So You're Stuck With ERISA ... Now What?," October 2002); the Chicago Bar Record ("The Nuts & Bolts ff Lawyers' Disability Insurance," May 2000); and the Illinois Bar Journal ("Bringing an ERISA Claim: A Step-by-Step Guide," 88 Ill.B.J. 20). For the record, I met DeBofsky about 20 years ago when I represented a now- defunct auto insurer in a federal case. Mark represented plaintiffs who filed a civil racketeering class-action complaint against my client based on an alleged pattern of mail fraud. Years later, when I represented a commodities trader with a disability claim, I called Mark to pick his brain. When I heard him rattling off the relevant rulings and developments in litigation against that insurance company across the country, I brought Mark in as co-counsel. (Note to obnoxious young litigators: today's adversary, tomorrow's co-counsel.) Ruling on cross-motions for summary judgment, U.S. Magistrate Judge Morton Denlow decided that the insurance company's denial of Crespo's disability claim was arbitrary and capricious because the company failed to give her a "full and fair review." The focus of this article (other than complimenting my old adversary DeBofsky) is Denlow's explanation for why attorneys should consider using the procedure of "trial on the papers." Crespo v. Unum Life Insurance Company of America, 2003 WL 22967245 (N.D. Ill, Dec. 18). As an employee of Lexis-Nexis, Crespo had long-term disability coverage under an insurance program issued and administered by Unum. Saying she was disabled by fibromyalgia, Crespo filed a claim for long-term disability benefits. Unum denied the claim and Crespo appealed, presenting additional evidence. When Unum denied the appeal, Crespo, represented by DeBofsky, filed a federal suit in the Northern District of Illinois. Preparing and responding to motions for summary judgment can be a time- consuming, expensive proposition (particularly with the elaborate set of local rules in the Northern District of Illinois). But filing cross-motions for summary judgment doesn't guarantee that litigants will avoid the expense of further litigation, even in a case that will ultimately be resolved on a paper record. Pointing to a series of cases from other courts, and one of his own articles, "Trial on the Papers: An Alternative to Cross-Motions for Summary Judgment," 46 The Federal Lawyer 30 (1999), Denlow urged that "in the future, parties consider proceeding by means of a trial on the papers." As Denlow explained (with various omissions not indicated in the quoted text): "Courts on all levels, including the U.S. Supreme Court ... customarily decide ERISA benefit cases through the summary judgment process. However, the summary judgment process has the potential for a non-decision, extra litigation, additional costs and unnecessary delay. These potential problems are eliminated by proceeding by means of a trial on the papers. "By filing cross-motions for summary judgment, parties do not waive their right to a trial on the merits. Each party is merely asking a court to grant it judgment without a trial, but if the judge disagrees, each wants a trial. Each movant individually must fulfill the requirements necessary to obtain summary judgment under Federal Rule of Civil Procedure 56. "A court is not required to grant summary judgment as a matter of law for either side when faced with cross-motions for summary judgment. Rather, the court is to evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inferences against the movant. "A trial on the papers process offers certain advantages over cross-motions for summary judgment. It is certain to result in a decision for one party rather than present the risk of a non-decision if the cross-motions for summary judgment are both denied. "Given the crowded court dockets and the expense involved in briefing cross- motions for summary judgment, the denial of both motions results in further delay and expenses that is avoided by a trial on the papers. "If the decision resulting from a trial on the papers is reversed on appeal, it is unnecessary to remand for a new trial, which may occur on a reversal from cross-motions for summary judgment. "Additionally, where an ERISA plan contains language that confers discretion to the plan administrator, a court applies the 'arbitrary and capricious' standard of review and will disturb the benefit determination only if it is 'downright unreasonable.' If this ERISA issue is reviewed in the context of summary judgment, a court must determine the reasonableness of the plan administrator while drawing all inferences in favor of the claimant. Such an exercise during cross-motions for summary judgment represent wasted effort by the parties and the court that can be avoided easily by proceeding by means of a trial on the papers. "Even though under both processes judicial review is limited to the evidence that was submitted in support of the application for benefits, if a question of fact arises a court must deny the cross-motions for summary judgment and set the case for trial. Reviewing the identical record pursuant to a Rule 52(a) trial on the papers, the same court can decide the case and resolve any fact questions. "Clearly, it is more efficient to reach the same determination on the same record by skipping cross-motions for summary judgment and proceeding directly to a trial on the papers, where all possible issues can be resolved by the court. "Furthermore, a defendant's summary judgment motion is difficult to analyze in a situation where the plan administrator is given discretion. On the one hand, the court must look at the evidence in the light most favorable to the plaintiff in analyzing whether the plan administrator abused its discretion. On the other hand, the court must give deference to the administrator's decision. This constitutes complex mental gymnastics that are not necessary in a trial on the papers situation. Under a trial on the papers, the plaintiff must meet its burden of proof that the plan administrator's decision was arbitrary and capricious. "For all of these reasons, the court strongly recommends that, in the future, parties consider a trial on the papers." On the merits, though, even with cross-motions for summary judgment, Crespo proved Unum failed to give her appeal the "full and fair review" required by the ERISA. Ruling that Unum's decision to deny her claim for long-term disability benefits was arbitrary and capricious -- for eight separate reasons -- Crespo's motion for summary judgment was granted, and Unum's motion was denied.

‘Today’s lawyers should have a broader vision’: SC Judge Jagdish Singh Khehar

See the Link: http://www.nyoooz.com/chandigarh/622334/todays-lawyers-should-have-a-broader-vision-sc-judge-jagdish-singh-khehar Summary: He urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. “I strongly feel that mediocre students become more successful in life.”“I owe everything to the teachers and faculty of the law department. This was what Supreme Court Judge, Justice Jagdish Singh Khehar, said while dwelling on the issue of corruption at the Panjab University’s convocation function on Saturday in Chandigarh. Ravi Kanojia Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Ravi Kanojia Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Ravi Kanojia India as a country is fighting a long-drawn battle against corruption but somehow it is failing to overpower it because it is a deep rooted menace. The only hope is that the future generations, which if guided properly about the harm it is causing, will be able to combat this disease. This was what Supreme Court Judge, Justice Jagdish Singh Khehar, said while dwelling on the issue of corruption at the Panjab University’s convocation function on Saturday in Chandigarh. He urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. “Two things — being incorruptible and integrity — will give you a sense of honour and fulfillment in life,” he said. Justice Khehar, who is also an alumnus of the Panjab Univeristy, recalling his student days, said that he could say from his experience that bookworms rarely make it to the top in life. “I strongly feel that mediocre students become more successful in life.” “I owe everything to the teachers and faculty of the law department. Source: http://indianexpress.com/article/cities/todays-lawyers-should-have-a-broader-vision-sc-judge-jagdish-singh-khehar-3060751/