As a judicial law clerk, I am regularly analyzing motions
for summary judgment. I often commiserate
with judges concerning attorneys’ shocking lack of understanding on how to
write a good motion for summary judgment.
This post will focus of the most common complaint - the Statement of Undisputed Facts.
Tip One: Don’t Blend
Conclusions of Law With The Facts
Perhaps the most common complaint
about a movant’s statement of undisputed facts is that it blends conclusions of
law with facts. This practice invites objection
to the statement based solely on the statement’s imbedded legal conclusion,
rather than a dispute based on the fact asserted. Remember, the purpose of the statement of
undisputed facts is solely to establish the facts, reserve legal argument for
the analysis portion of your memorandum.
Bad Example
“On January 4, 2013, Peter filed notice
of his claim with the Department of Transportation satisfying the notice
requirements of the Governmental Immunity Act. (Exhibit A, Peter’s Deposition
at 5)”
Good Example
“On January 4, 2013, Peter filed notice
of his claim with the Department of Transportation. (Exhibit A, Peter’s
Deposition at 5)”
Ideally, the statement of
undisputed facts will be completely void of statements that invite dispute
based on imbedded legal conclusions.
This is difficult. Even the above
“good example” could invite legal objection if there is an argument concerning
what constitutes filing or notice.
Better Example
“On January 4, 2013, Peter mailed Exhibit
B (attached hereto) to the Department of Transportation via the United States
Postal Service (Exhibit A, Peter’s Deposition at 5) (Exhibit C, United States
Postal Service Receipt)”
“The Department of Transportation
received Exhibit B on January 7, 2013. (Exhibit D, Delivery Confirmation).”
Tip Two: Only One Fact
Per Numbered Paragraph
Utah R. Civ. P. 7(c) states: “Each fact
shall be separately stated and numbered . . . .” Obey this rule to the greatest extent
possible. Placing multiple facts in a
single numbered paragraph invites dispute regarding facts that may not be disputed otherwise.
Bad Example
“1. On March 21,
2013, Daniel invited Peter to have dinner and watch a movie at his home in Park City
on March 30, 2013. (Peter’s Deposition at 8)”
This “bad example” mixes too many facts into a single sentence. If opposing counsel disputes a single portion of the statement, they will
likely dispute the entire statement.
Good Example
“1. Daniel owns a home in Park City.
(Exhibit A, Daniel’s Deposition at 1)”
“2. Daniel does not live in any other
home. (Exhibit A, Daniel’s Deposition at 1)”
“3. On March 21, 2013, Daniel called
Peter. (Exhibit B, Peter’s Deposition at 3)”
“4. Daniel invited
Peter to his home for dinner and a movie. (Exhibit B, Peter’s Deposition at 3)”
“5. Peter received
Daniel’s invitation during the March 21, 2013, telephone conversation. (Exhibit
B, Peter’s Deposition at 3)”
“6. Daniel told
Peter that the event would be on March 30, 2013. (Exhibit B, Peter’s Deposition
at 3)”
By separating each fact into a
separately numbered paragraph, the movant forces opposing counsel to clearly
indicate which fact they dispute, if any.
It is nearly impossible to
separate each individual fact into a separate statement. This “good example” might be a little
extreme. You should anticipate which
facts might be in dispute, and craft your statements based on your
understanding of the opposing party’s case.
Tip Three: Exclude
Immaterial Facts, But Be Cautious
Disputes concerning immaterial
facts do not preclude summary judgment.
Accordingly, it is not necessary to include them in your statement of
undisputed facts. It is wise, however,
to provide facts sufficient to give the judge a complete understanding of the
case, even if it includes some immaterial information.
Bad Example
“1. On March, 21, 2013,
Daniel called Peter. (Exhibit B, Peter’s Deposition at 3)”
“2.
Daniel invited Peter to his home for dinner and a movie. (Exhibit B, Peter’s Deposition
at 3)”
“3.
Peter received Daniel’s invitation during the march 21, 2013, telephone
conversation. (Exhibit B, Peter’s Deposition at 3)”
Notice that this “bad example” is
drawn directly for tip two’s “good example.”
By separating each fact into a separately numbered paragraph, it became easier
to identify immaterial facts. Here,
facts one and three are most likely immaterial.
They also do not add any background information that could be helpful to
the judge.
Good Example
“1. Daniel invited
Peter to his home for dinner and a movie. (Exhibit B, Peter’s Deposition at 3)”
Tip Four: Cite to
Admissible Evidence
Utah R. Civ. P. 7(c) states: “Each fact
shall be . . . supported by citation to relevant materials, such as affidavits
or discovery material.” Utah R. Civ. P. 56(e) further
requires:
[s]upporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto
or served therewith.
In other words, you must cite to
relevant admissible evidence. That includes
building a foundation for any submitted documents via affidavit. Don’t just attach a copy of a contract. Attach an affidavit laying the foundation for
admissibility of the contract, and attach the contract to the affidavit. Don’t rely on hearsay statements in your
client’s deposition or affidavit, go to the source.
Tip Five: Quote the
Material Provisions of Any Documents Referred To
Attorneys often refer to contracts
or other documents in their statement of undisputed facts, but do not state the
material provisions of that document.
Some attorneys have told me that they choose not to quote the relevant
provisions of the contract because the contract speaks for itself.
While the contract is the best
evidence of what the contract states, failing to include its material terms in
the statement of undisputed facts provides the judge with an incomplete picture
of the case and forces the judge to sort through the contract to determine the
relevant provisions.
The material terms of the contract
are material facts, and they are most often undisputed. Providing direct quotations of these terms in
the statement of undisputed facts helps the court gain a full understanding
of the case and directs the judge to the provisions in the contract you deem most important.
You should not quickly summaries the
terms of the contract, because opposing counsel will likely object based on the
best evidence rule. Instead, directly quote
the contract’s material provisions.
Bad Example
“1. Daniel promised
to pay Peter one million dollars for one million pounds of flour. (Exhibit A,
Contract at 1).
Good Example
“1. Peter and
Daniel signed a contract dated March 18, 2012. (Exhibit A, Contract at 1)”
“2. The contract designates Peter as
“Seller” (Exhibit A, Contract at 1)”
“3. The contract designates Daniel as
“Buyer” (Exhibit A, Contract at 1)”
“4. The contract
states: “Buyer will pay Seller one million dollars for one million pounds of
flour.” (Exhibit A, Contract at 1)”
There are times that summarizing
the terms of the contract will be sufficient.
You should anticipate opposing counsel’s arguments. If interpretation of a contract is an issue
in the case, it is better to quote directly from the contract itself, otherwise
summaries will invite objection.
I hope you find these five tips help you write better statements
of undisputed facts.
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