Footnote 46

Sometimes the court will "signal" the defendant in a pre-motion conference that bringing a summary judgment motion will likely prove futile. See, e.g., Patrick F. Dorrian, Federal Judges Provide Insights On Summary Judgment Motions, 23 Empl. Discrimination Rep. (BNA) 516, 516 (Nov. 3, 2004) (discussing S.D.N.Y. Judge John F. Keenan's practice in this regard). We have no way of knowing, of course, how often judges manage to dissuade employers from filing motions.