Our Favorite Phrases and the Video Tape
Ever since my days as a judicial clerk, I have maintained a worn three-ring binder with copies of the "must-have" cases. Among the tabbed selections are Matsushita Elec. Industrial Co. v. Zenith Radio Corp. and Anderson v. Liberty Lobby, Inc.; both of which are among the indispensable authorities on summary judgment.
No doubt, after State v. Harris today, I will need to add a new tab. Justice Scalia, writing for a 6-3 majority on the High Court, made additions to the lexicon of summary judgment that I am certain will be cited again and again.
Below, Harris had avoided summary judgment on the Section 1983 claims which arose out of a high-speed police chase that left him a quadriplegic. In March of 2001, Mr. Harris was attempting to elude County Sherrifs when a Deputy in a squad car rammed Harris' vehicle, sending it off the roadway.
The lower federal courts denied the state's motion for summary judgment on the grounds that there were genuine issues of material fact as to what transpired during the high-speed chase. Reversing, Justice Scalia and the Court majority points to the video: "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape."
The feature of this exegesis that concerns me most is that many of those who move for summary judgment believe that the opposing party's view of the case is "blatantly contradicted by the record...." As sure as morning motions practice follows late nights of billable hours, the phrase "blatantly contradicted by the record" will be the litigator’s Phrase of the Year.
Yet it is probably also true that it is the squad car video tape that gives color and context to this decision. One wonders whether the “blatant contradiction” standard that is referenced could be met with something less than a video of the events at issue; although I am certain that all good lawyers will try. Indeed, the video had such a powerful impact on the Harris majority that the High Court made it a separately downloadable exhibit to the slip opinion issued today. That has to be a first.
The full opinion is accessible here. A short, edited clip of the squad car video, which is embedded in a larger news story, is accessible here.