Tilly sued Delci for personal injury; Delci got summary judgment because, apparently, Tilly failed to respond to a boilerplate Request for Admission that he wasn’t injured (and you wondered why insurance defense counsel used those things). Tilly appealed, arguing that because the summary judgment was tied up with his (egregious) failures to make discovery, the ruling was a sanction and the trial court should therefore have considered a less drastic alternative and whether the problems were his fault or his attorney’s. The Court of Appeals upheld the summary judgment.

Far from being too severe, the judge’s various rulings illustrate the lengths to which trial courts are willing to go to accommodate plaintiffs who can’t/won’t/don’t know how to respond to discovery, even after long delays and several warnings.

The problem comes with the discussion in a footnote. Substantive footnotes are dangerous. Too often, they are things that the court has only half thought through but just can’t bear to edit out. (Courts rarely edit well.) Other times, the judge has thought things through perfectly well, knows that the footnote is the important part of the opinion, but doesn’t want to call attention to it just yet.

Footnote 4 looks like the former variety. Tilly had opposed the motion for summary judgment by telling the court that he had now responded to the discovery requests; he did not tell the court what his responses said nor why they raised a question of fact. The Court of Appeals said that “This is not a case where the trial judge could have independently searched the record and discovered evidence that placed factual matters in dispute, to the extent that such a search was required.” Footnote 4 discusses whether such a search is ever required.

What do we know so far? That this case is not about whether a trial court need search the record to find questions of fact. So isn’t the footnote dicta? Yes. So why the footnote? Well, for some reason someone had clearly put in some time researching the issue, and it would have been a shame to waste that, right?

Here’s what the footnote says:

There are differing views expressed [on whether the trial court need do a search]. Compare [several cases saying “no”] with [a couple of cases saying “yes”]. From our perspective, whether such a search is required, either by the trial court or on appeal, depends on ‘the volume and complexity’ of the specific litigation in which the motion for summary judgment is filed.

Huh? Whether a court has a legal duty to do something depends on how hard the judge will have to work? If so, what is the standard for determining how hard is too hard?

The footnote actually cites a case for this nonsense. But that case said that because of the “volume and complexity” of modern litigation, cases saying that a court must search the record itself are “contrary to modern authority.” We know that because footnote 4 already quoted it to that effect, as one of the cases saying a court needn’t do a search. So how does a a case squarely on one side of the question — and which the court just quoted as being on one side of the question — suddenly become authority for the court’s new, equivocal position?

Yes, its dicta; yes, its nonsense; yes, its easy to see that its both. But that won’t stop the next guy who fouls up his summary judgment defense from citing it as authority that the court ought to do his work for him.