• May 2, 2011

As the Minnesota court system continues to struggle to handle its caseload on a seemingly ever-shrinking (or at best stagnant) budget, those in the system and running the system are relentlessly looking for cost savings.

Recognizing that the problems are complex, recognizing that the Minnesota court system, like other public and private institutions throughout our state and country, are simply dealing with a dramatic economic downturn that, in time, will cycle back to relative prosperity eventually, could there nevertheless be a slight tweak in already-existing court rules that might help alleviate some of the case load in civil litigation in the state to at least some degree?  Maybe so.

Rule 115.10 of Minnesota’s General Rules of Practice is a rule that requires that litigants “meet and confer” before bringing dispositive motions.   Minnesota litigants and courts are very accustomed to requiring a “meet and confer” before discovery disputes.  Courts are not reluctant to deny a discovery motion if it is submitted without mention of the prerequisite of this requirement.

But before a dispositive motion???  What’s the point? Commentary on the rule:

The Task Force believes that it is reasonable and worthwhile to require informal efforts to attempt to resolve all motion disputes, not just discovery disputes. …This rule requires that some appropriate efforts be made to resolve motion disputes before hearing with the court, but does not specify a specific mechanism.  … The Task Force considered exempting dispositive motions from the requirements of the rule in view of the likely futility of conferring with adversaries over matters that would be dispositive, but determined that the effort expended in conferring in these matters is justified by the likely resolution or narrowing of some disputes or focusing the dispute for judicial resolution.

This rule is widely ignored by practitioners and by Minnesota trial courts.  There is a widely held sense that it is futile, if not absurd, to require a party with a dispositive motion to “meet and confer” before bringing the motion.

This widely held sense is wrong.

Application of the rule, if it were broadly applied, would serve a benefit in many cases.  It would cause motions not to be filed and cases to be more quickly resolved without judicial involvement.

Essentially, application of such a rule would inevitably cause weak/ill-considered motions not to be filed.  It would cause “rock-solid” motions not to filed as well as some “non-movants,” seeing the likely outcome, would certainly cut their losses and drop the suit (at least in some % of cases).  (It would also cause at least some motions that would be filed regardless to be better written and more focused.  The movant will have gotten a first look at the non-movant’s arguments (and vice-versa)).

So why don’t Minnesota trial courts apply this rule  (if anyone has heard of a dispositive motion rejected by a court for failure to meet the requirements of Rule 115.10, tell Minnesota Litigator (and its readers))?

First, because it is a “dead letter,” Minnesota lawyers do not often raise it as a defense to dispositive motions.  Second, a threshold rule such as this one (for example, “knock the door before you come in”) is difficult (or, in a sense, costly) to enforce after the fact.  Applying the rule, until it is self-imposed by standard custom and practice, is more costly than ignoring the rule (for example requiring some to leave the room, knock, and a try again (or ordering a movant to “come back after certifying you met your Rule 115.10 obligations”).

The rule is on the books for a sound and rational purpose.  If the rule were followed, it would have some small marginal benefit (savings) for our civil court system.  Can Minnesota lawyers and the courts get past the small upfront investment of following (or enforcing) the rule, to reap the savings that would accrue over time?

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