A judge’ job can be difficult. IT can also be rather easy. When the job is difficult, one cannot but be sympathetic. But when a judge makes his job difficult, it is hard to find any sympathy. Last week I had the interesting experience of appearing before a judge in the latter category. My client filed a motion for summary judgment on the limited question of whether a contract in issue was unambiguous. The client argued that it believed the contract was unambiguous, and the defending party had asserted in its pleading and in discovery that the contract was unambiguous. So, we asked the judge to find the contract was unambiguous. The defending party responded to the motion for summary judgment with a request for discovery under Rule 56(f). (56(f) provides that a party responding to summary judgment may request delay of the summary judgment briefing and argument in order to take specific discovery necessary to oppose to the motion for summary judgment.) You might think that the 56(f) request was based on a decision by the defending party to argue that, contrary to their earlier position, the contract was ambiguous. You would be wrong. In their papers they admit that they did not oppose a finding that the contract was unambiguous; they too believed it was unambiguous. Remarkably, there is a hearing and oral argument on the 56(f) request even though the only issue raised in the motion for summary judgment was not in dispute. At oral argument, we point out that there is no dispute, that, in fact, no party asserts that there is ambiguity in the contract. It therefore follows that there are no grounds for granting the 56(f) request and that the discovery cannot possibly aid in determining the sole issue before the court, unless the court is determined to reach out sua sponte and enter a decision contrary to the position of both parties. The judge is having none of it. He wants to know how he will be able to decide if the contract is ambiguous without further evidence. My response was that no one is or will ask him to make that decision because no one believes that the contract is ambiguous. Sorry, no go. Judge grants the 56(f) and then tells the parties he is not going to tell them what discovery should be done. An invitation to hard work for the judge – he is inviting a dispute later, when the opposition to summary judgment is filed, about issues not raised by the motion, viz., what the contract means. (If that happens, the judge insures reversal.) So a thirty minute oral argument (which is pretty long for state court) and further proceedings to come, because the judge is worrying about issues no one asked him to resolve and whose resolution are wholly unnecessary to the question before him.