I suspect every client I have ever represented in litigation can testify that I am overly fond of the old saying if you have the facts, argue the facts; if you have the law, argue the law; and if you have neither, jump up and down and scream. In my view, most of the time, you are better off having the facts on your side then either the law or a good scream. This is because it is a relatively rare case where the controlling legal principles are so clear and unambiguous that a good lawyer, holding a good poker hand of facts, cannot get around a body of law running against his or her client.

I couldn’t help but think of this point after reading Judge Young’s summary judgment ruling in the excessive fee case brought against Boston College, Sellers v. Trustees of Boston College, as well as some of the commentary already written on the decision. (By the way, given that the opinion runs to 126 pages, you may prefer the commentaries to the source material, and if so I am partial to the two published recently by Nevin Adams and Daniel Aronowitz, which you can find here and here). There is an extremely good argument to be made that Boston College demonstrated in its motion papers a level of prudence factually sufficient to defeat the excessive fee claim, but the court essentially found that they did so in the wrong forum: at summary judgment, and not at trial. Judge Young’s opinion recognizes that a fact dispute alone, if material, is enough to preclude summary judgment and requires a trial even if, as frankly appears to have been the case here, the defendant has proven it is likely to prevail.

Having read the opinion and some of the commentary, I don’t disagree with the premise that a fact finder could easily rule in Boston College’s favor on the excessive fee claim on the evidence presented by it in the summary judgment proceedings. But the plaintiffs met their burden of showing a credible factual dispute for trial as to the prudence of the defendants, one that precluded summary judgment unless the court was going to actually decide the factual disputes, which it cannot properly do at summary judgment under the federal rules. While the rules and case law interpreting them allow the court some leeway in passing on the likelihood of success in a case at the motion to dismiss stage, the same is not true with regard to summary judgment. On summary judgment, the question of the likelihood of success at the end of the day is not technically relevant, and instead the case must proceed to trial unless undisputed facts clearly preclude one party or the other from possible success at trial.

In breach of fiduciary duty cases, that can be a hard bar to reach. The standards are so fact sensitive, the underlying conduct often so opaque, and the room for dispute so broad, that establishing at summary judgment that the plaintiff cannot, under any circumstance, prevail at trial is often a bridge too far. To me, this is why so often you see courts enter partial summary judgment in favor of defendants in breach of fiduciary duty cases, but not outright wins, with the court often leaving in place just a small sliver of the original claims for trial. The standard to obtain summary judgment is so hard to meet in the context of such claims that disproving the entirety of a plaintiff’s case at summary judgment is unlikely, but disproving a significant chunk of it is more realistic.

There is nothing wrong with that outcome, by the way. It can often be enough to frame the case and the exposure so that an appropriate settlement is possible and, if not, to give the parties a chance to focus at trial on only what truly remains in dispute. For many parties and in many cases, that is nearly as productive an outcome from summary judgment proceedings as an outright win would have been.