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Updated August 25, 2020

In reviewing a motion for summary judgment, the Superior Court must construe all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the opposing party.  Moreover, any doubt about the existence of a genuine issue of material fact must be resolved against the movant.

The court does not pass upon the credibility of witnesses or the weight of the evidence or make its own findings of facts.  A court should not grant a party’s motion for summary judgment merely because the facts he offers appear more plausible than those tendered in the opposition, or because it appears that the adversary is unlikely to prevail at trial.  Instead, the court should only determine whether a genuine issue of material fact exists.  The moving party’s failure to establish the absence of a genuine issue of material fact must, without more from his opponent, defeat his motion.

 

Updated August 25, 2020

Under Massachusetts Rule of Civil Procedure 56(c), summary judgment, “may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.” In addition, summary judgment need not resolve all claims against all parties in the case.  Rule 56(d) provides,

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Note, however, that the Massachusetts Superior Court’s Business Litigation Session (“BLS”) has issued a procedural order limiting the use of partial dispositive motions, including partial summary judgment.

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Updated August 25, 2020

A motion for summary judgment in the Massachusetts Superior Court is governed by Superior Court Rule 9A.  In a simple case, not involving a cross-motion, a party seeking summary judgment must serve on the opposing party at least the following documents:

• The motion for summary judgment;
• A separate memorandum stating the reasons, including supporting authorities, why the motion should be granted. Rule 9A(a)(1);
• A statement of material facts as to which the moving party contends there is no genuine issue to be tried (“Statement of Facts”). Rule 9A(b)(5)(i).  In addition to paper service, the moving party must also send the opposing party a digital version of the Statement of Facts.  Rule 9A(b)(5)(ii);
• An appendix of affidavits or other exhibits supporting the motion. After inclusion of the opposing party’s exhibits, this becomes the Joint Appendix. Rule 9A(b)(5)(v);
• An affidavit authenticating the exhibits in the Appendix on which the moving party is relying;
• Certificates of service should appear on the last page of each document. Rule 9B.

A party opposing a motion for summary judgment, but not filing a cross-motion, must serve on the moving party:

• The opposition;
• A memorandum in opposition to the motion.  Rule 9A(b)(5)(iii);
• Responses to the moving party’s Statement of Facts.  Rule 9A(b)(5)(iii)(A);
• Any affidavits or other additional exhibits on which the opposition is based, and an index thereto, for inclusion in the parties’ Joint Appendix. Rule 9A(b)(5)(iii)(D);
• An affidavit authenticating the exhibits in the Appendix on which the opposing party is relying;
• Certificates of service on the last page of each document.

The moving party must then file with the Court the “9A Package” which includes:

• The consolidated Statement of Facts, including the opposing party’s responses.  Rule 9A(b)(5)(iv)(A);
• The Joint Appendix. Rule 9A(b)(5)(iv)(A);
• Any other documents served on the moving party by the opposing party (e.g. the opposition);
• Rule 9A Notice of Filing Documents.  Rule 9A(b)(5)(iv);
• Rule 9A Listing of Documents. Rule 9A(b)(5)(iv);
• Rule 9A Affidavit of Counsel (but only if the party opposing the motion fails to serve an opposition on the moving party). Rule 9A(b)(2)(ii).

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Updated August 25, 2020

Massachusetts Superior Court Rule 9A sets forth detailed requirements governing the format of summary judgment documents.

Separate memorandum.  A motion for summary judgment must be accompanied by a separate memorandum of law “stating the reasons, including supporting authorities, that the motion should be granted.”  Rule 9A(a)(1).

Format.  All summary judgment papers (motions, memoranda, oppositions, etc.), except for exhibits, must be filed on 8.5″ x 11″ paper, must be typed in at least 12-point type and must be double spaced.  Although the title of the case, footnotes and quotations may be single spaced, they still must be in 12-point type.

Titles.  The title of each document must appear on the first page thereof.

Length.  Memoranda of law supporting or opposing the motion and the moving party’s Statement of Material Facts are limited to 20 pages unless leave of court is obtained.  Reply memoranda are limited to 5 pages.  The addendum is not counted towards the 20-page limit for a memorandum.  The length limits do not apply to the Joint Appendix of Exhibits.  Leave of court to file a surreply or to exceed length limits may be obtained as provided in Rule 9A(a)(6), and any expanded page limit allowed by the court will apply to all parties.  The title of any surreply or memorandum exceeding 20 pages must note the date on which leave was allowed.  Id.

Email addresses.  A party or attorney who has an email address must include the address on all papers filed.  Rule 9A(a)(5)(v).

Certification. All summary judgment motions must include the certificate required by Rule 9C(a), attesting that the parties conferred in a good faith effort to narrow areas of disagreement.  Rule 9A(a)(8).

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Updated August 25, 2020

How soon a motion for summary judgment may be filed depends on whether the plaintiff or defendant is the moving party.  The plaintiff may not move for summary judgment until after: (1) twenty days have elapsed after the commencement of the action or (2) service of a motion for summary judgment by the defendant.  Mass. R. civ. P. 56(a).

The Defendant may file a motion for summary judgment at any time, as may any defendant-in-counterclaim or defendant-in-crossclaim.  Mass. R. Civ. P. 56(b).

Both plaintiffs and defendants must also file their motions not later than 10 days before the date on which the motion will be heard.  The Tracking Order applicable to a Superior Court case will also specify the date by which motions for summary judgment must be filed.

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Updated August 24, 2020

Massachusetts Rule of Civil Procedure 56(c) lists the type of evidence on which a party seeking summary judgment may rely:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

With regard to pleadings, the moving party may not rely on the allegations of his or her own pleadings.  However a party seeking summary judgment may rely on allegations contained in the opposing party’s pleadings G.L. c. 231, § 87 (“In any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them.”).  A motion for summary judgment may also be based on facts set forth in the moving party’s pleadings and conceded in the opposing party’s pleadings.  In the Superior Court, the Court will also take as admitted facts which are set forth in the moving party’s statement of material facts (“Statement of Facts”) and which the opposing party has not adequately denied.

A court may also consider matters subject to judicial notice, concessions made by counsel on the record, testimony received in court (whether in the case at issue or in a former trial), and, if appropriate, facts gleaned from the documents relied on by the parties.  This list is not exhaustive.

Mass. R. Civ. P. 56(e) sets forth the requirements for affidavits:

Supporting 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.  (Emphasis added).

Bare assertions of belief are inadequate for summary judgment purposes. So are bare assertions, conclusions, and assumptions of unobserved facts.  Expressions of belief do not rise to the personal knowledge required by Rule 56(e).  Accordingly, affidavits or portions thereof made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment.

Affidavit information must embody admissible evidence.  Therefore, affidavits are not competent evidence to prove the truth of the hearsay statements they contain unless they come within some established exception to the hearsay rule or come within some statutory provision.  Any documents attached to and incorporated in an affidavit must also be admissible.

If an affidavit refers to another document or some portion thereof, sworn or certified copies of the document must be submitted with the affidavit.  Rule 56(e).

A motion to strike is the proper procedural device for raising the insufficiency in an affidavit submitted in opposition to a motion for summary judgment. Where no such motion is filed, a court retains discretion to ignore any deficiency and consider the affidavit.

It should be noted that a party cannot defeat a motion for summary judgment by submitting an affidavit which contradicts that party’s own earlier sworn statements (e.g. at a deposition).

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Updated August 3, 2020

A memorandum in support of, or in opposition to, a motion for summary judgment should be drafted to convey to a busy judge, in the most efficient and convincing way possible, why the motion should be granted or denied.  Although this article focuses on summary judgment in the Massachusetts Superior Court, many of the observations are equally applicable to summary judgments filed in other Massachusetts courts.

Know your audience.

A motion for summary judgment is directed to a special audience (the judge) and must present both the facts and the law in a manner calculated to satisfy the needs and expectations of that audience.

Keep in mind that the judge may know relatively little about the facts of your case until he or she reads your memorandum and related summary judgment papers.  This is especially true where the judge has not had occasion to make other substantive rulings in the case (e.g. on a motion to dismiss) before the motion for summary judgment is filed.  In any case, the judge certainly knows less about the case than you do.

Similarly, because most judges deal with cases of many kinds, they are often generalists, rather than experts in the applicable law.  Your summary judgment memorandum must educate the judge about both the facts and the law.

Judges are also overworked.  As a result, the judge may have little patience with a memorandum that makes his or her job more difficult or wastes precious time.  Your memorandum, and each argument within it, should be as clear and concise as possible and should “get to the point” quickly, rather than forcing the judge to wade through irrelevant facts or boilerplate law.  You must do everything possible to make your memorandum easy to read and your arguments easily understood.  This places a premium on careful organization and the use of “roadmap” paragraphs.

Throughout your memorandum, focus on the primary question before the court on summary judgment: whether there exists any genuine issue of material fact.  The judge will be most interested in whether such a factual issue exists. Therefore, whether seeking or opposing summary judgment, your memorandum should stress the facts.  Keep in mind the court’s limited function when deciding a motion for summary judgment.  The court does not weigh the evidence or decide disputed issues.  Accordingly, there is little point in the moving party arguing, as one might at trial, that one version of the facts is more plausible than another.  The motion can be granted only if there is no dispute as to any material fact.

A judge is more likely to grant summary judgment in a case with common facts and established law, than in a case with complex or unusual facts and unfamiliar or undecided law.  Thus, if you are moving for summary judgment, emphasize the simplicity and everyday nature of the case.  Conversely, the opposing party should cast the case as a complex situation requiring the application of new or uncertain legal principals.

Before drafting the memorandum.

In order to draft an effective summary judgment memorandum, you must become intimately familiar with the case, mastering both the facts and the applicable law.  At least the following steps should be completed before drafting the memorandum.

Structure discovery with summary judgment in mind.  Your summary judgment memorandum can only be as effective as the evidence you have to work with.  Accordingly, keep the need to seek or oppose a motion for summary judgment firmly in mind when taking depositions, drafting interrogatories or requests for admissions, conducting other discovery and obtaining expert opinions.

Study the record.  Review the entire record in detail, including all of the relevant documentary evidence, deposition transcripts, answers to interrogatories, affidavits and other summary judgment material.  Obviously, parties seeking or opposing summary judgment cannot intelligently decide which arguments to make in their memoranda, unless both have become familiar with the record.

While reviewing the record, summarize the relevant facts, noting any legal issues raised by those facts.  Omit from your summary any facts which are clearly irrelevant.  A moving party’s summary of the record can serve as a draft of the Superior Court Rule 9A(b)(5) statement of material facts (“Statement of Facts”).

Be sure to include in your summary detailed citations to record, as every paragraph of the moving party’s Statement of Facts, and every paragraph of the opposing party’s response which disputes any fact, must be supported by citations to the record.

Research.  Research all of the legal issues.  A thorough understanding of the law will help determine which facts in the record are material.

Outline your argument.  Based on your research, create an outline of the headings and sub-headings for your argument on each legal issue.  This outline will later help you organize the argument section of your memorandum.

Choosing your issues.

Serious thought should be given to which arguments should be included in your memorandum seeking or opposing summary judgment.  You should limit your arguments to those that offer your client a realistic chance of success.

Be selective.  Consider the strength of your argument on each issue, both factually and legally.  Including too many arguments can be detrimental.  You should not waste the limited pages of a summary judgment memorandum making arguments which are predestined to fail.  Further, pursuing weak arguments undermines your credibility and may reduce the effectiveness of an otherwise strong memorandum.

The facts.

How you present the facts in your summary judgment memorandum can be at least as important as your legal analysis.  A skillfully drafted factual section will both establish your credibility in the eyes of the court and tell a compelling story, leading the judge to view the case from the perspective most favorable to your client and be more receptive to your legal arguments.

Citations to the record. Each factual statement in a memorandum of law filed in support of or in opposition to a motion for summary judgment must be supported by citations to both the Statement of Facts and to exhibits in the Joint Appendix.  Rule 9A(b)(5)(i), 9A(b)(5)(iii)(A).

State the general nature of the case.  Start with the general nature of the case, just one or two paragraphs, offering the judge a very short, general description of the dispute between the parties and your view of why summary judgment is or is not appropriate.  This background provides the necessary context for the more detailed facts which follow.  There is no need to give any detailed procedural background, unless such a background is relevant to one or more of your arguments.

Your fact section should achieve two goals.  In the facts section of your memorandum, you should present, in a neutral, non-argumentative tone, all of the facts relevant to your arguments.  Your facts section has two primary goals: (1) to develop and maintain your credibility; and (2) to present the facts in such a way that the judge finishes reading them with the sense, if you represent the moving party, that there are no disputed material facts and that the undisputed facts entitle your client to judgment as a matter of law.  If you represent the opposing party, your memorandum should convince the judge either that the material facts are genuinely disputed or that, even if the facts are clear, they do not warrant a judgment for the moving party.  In the latter instance, the court may, in fact, enter summary judgment for the opposing party.

Maintaining credibility.  If the judge concludes that your presentation of the facts cannot be trusted, he or she will also be much less likely to trust the law you present and the arguments you make.  To build credibility in your facts section:

• Maintain a neutral tone and avoid presenting the facts in an overtly argumentative manner;
• Include only facts that are in the record and cite meticulously to the record. Every factual statement in your memorandum should be followed by a citation to the Statement of Facts and exhibits in the Joint Appendix. A judge who is convinced that your citations are reliable is more likely to use your memorandum as a reference document and, accordingly, to view the facts in a manner favorable to your client;
• If you represent the party seeking summary judgment, include only facts that are undisputed. Relying on facts as to which there is a genuine dispute can harm your case by allowing the opposing party to point out a genuine issue of material fact, thereby defeating summary judgment.
• Be honest and complete. Include all relevant facts, whether they help your case or damage it.  In addition to ethical concerns, omitting negative facts is counterproductive as it offers the opposing party an opportunity to attack your honesty.

Structure you factual presentation so as to persuade judge.  The second purpose of your fact section is to persuade the judge to rule in your client’s favor.  Use this section to tell the judge a story, explaining the case from your client’s perspective and personalizing your client where possible.  Usually, a chronological structure will work best for this narrative.

While maintaining a neutral tone, you should craft the facts section of your summary judgment memorandum to stress facts favorable to your case and diminish facts which harm it.   Ways in which this can be accomplished include:

• Placing positive facts near the beginning or end of paragraphs and sentences within paragraphs, while burying negative facts in the middle of paragraphs and sentences;
• Linking any negative facts to the circumstances which explain them;
• Placing paragraphs containing negative facts between paragraphs containing positive facts;
• Using active voice for positive facts (“Jones applied the brakes”) and passive voice for negative facts (“the brakes were applied by Jones”);
• Placing negative facts in subordinate clauses of sentences.

I sometimes use the following additional techniques:

• Use specific dates only where they are relevant (e.g. to a statute of limitations issue). Unnecessary dates distract the reader;
• Use subheadings within your facts section. They help the reader navigate complex facts.  In addition, the judge may review the headings in your memorandum before (or occasionally instead of) reading it in detail.  Detailed subheadings serve as a summary of the facts and argument;
• Do not refer to the parties as plaintiff and defendant. Instead, use names that help the reader remember who is who (e.g. “Employee” and “the Company”);
• Use short quotations from the record, but avoid long quotes that will lose the reader’s attention;
• Revisit your facts section after you finish drafting the argument section of your summary judgment memorandum. Often, as the Argument section becomes more developed, it may come to rely on facts which you did not initially include.

Devote the time necessary to drafting an effective facts section.  As noted above, a judge considering a motion for summary judgment will be primarily interested in whether any material fact is disputed.  By presenting the judge with a compelling story, and offering facts in the form most favorable to your client, you increase the likelihood that the judge will be receptive to your legal arguments.

Argument

It is in the argument section that the party moving for summary judgment explains the law and shows how that law, applied to the undisputed material facts, entitles that party to judgment.  The opposing party may agree that the facts asserted by the moving party are undisputed but argue that the applicable law is different from that relied upon by the moving party and does not entitle the moving party to judgment.  The opposing party may file a cross-motion for summary judgment based on the same facts asserted by the moving party but a different interpretation of the applicable law.  Or the opposing party may agree as to the applicable law, but argue that the facts relied upon by the moving party are disputed.  In addition, the opposing party, having stated additional undisputed material facts in his or her opposition memorandum (see Rule 9A(b)(5)(iii)(B)), may argue that the applicable law warrants entry of summary judgment in its own favor based on those additional facts.

Be methodical and organized.  In determining how to draft the argument section, keep in mind that your audience is a judge who does not know the facts of your case as well as you do.  Further, because the judge may be a generalist, you should not assume that he or she has expertise in the legal subject matter of your case.  Do not skip steps in your legal analysis, assuming that the judge will follow along.  If your argument has multiple conceptual steps, clearly lay out every one leading to your ultimate conclusion.  However, this advice may be less applicable in certain courts, (e.g. the Land Court) where judges focus on and gain a deeper knowledge of a particular area of law.

Because you need to methodically lay out your legal analysis, your memorandum’s argument section should be highly structured.  Each major argument within the argument section should have its own roadmap paragraph.

Use headings and sub-headings.  You should also use headings and sub-headings to help the reader keep track of complex arguments.  Each major heading in your argument section should state one reason why the court should rule in your client’s favor.  A major heading might read,

Jones is liable to Brown for negligently entrusting her vehicle to Smith because: (1) Jones gave Smith specific or general permission to drive the vehicle; (2) Smith was incompetent or unfit to drive the vehicle; (3) that unfitness was the proximate cause of Brown’s injuries; and (4) Jones had actual knowledge of Smith’s incompetence or unfitness to drive the vehicle.

Sub-headings should track the subsidiary propositions which, together, lead to the conclusions stated in each major heading in your argument section.  Under the negligent entrustment heading, sub-headings might include: “Jones gave Smith specific or general permission to drive the vehicle,” “Smith was incompetent or unfit to drive the vehicle,” “Smith’s unfitness was the proximate cause of Brown’s injuries,” and “Jones had actual knowledge of Smith’s incompetence or unfitness to drive the vehicle.”

Because a judge may first read only the headings and sub-headings, they should be written to provide a stand-alone explanation of your argument.  It follows that instead of simply stating legal conclusions, your headings and sub-headings should contain sufficient facts to support the conclusion.  Compare, for example, “Jones gave Smith specific or general permission to drive the vehicle” with “By handing her car keys to Smith, Jones gave Smith specific or general permission to drive the vehicle.”

Order your arguments for maximum effect.  Keeping in mind your overall objective (to convince the judge to rule for your client) also helps determine the order in which to present your arguments.  If there is a natural, logical order in which the arguments should appear, use it.  For example, a threshold argument such as lack of standing, that will enable the judge to rule in your client’s favor without considering the other potential issues, should be addressed first.  I find that there is often a logical order in which even non-threshold issues should appear.

In the absence of a logical order, present your best argument first. You must do this because the judge will probably assume that your strongest argument appears first (absent some logical order as discussed above).  There are two ways to deal with weaker arguments.   You might place your arguments in order of strength, leaving the weakest for last.  This approach takes into account that judges are very busy and want to see your best arguments as soon as possible.  This approach may also be consistent with the judge’s assumption that your arguments appear in order of strength.  On the other hand, just as you can minimize weak facts by burying them in the middle of paragraphs between stronger facts, you might profit from burying weaker arguments in the middle of your memorandum.

If you represent the party opposing summary judgment, you must decide whether to follow the order of argument in the moving party’s memorandum.  Doing so makes it easier for the judge to compare your arguments with the moving party’s arguments on the same issue.  However, following the order of argument in the moving party’s memorandum may result in your strongest argument not appearing first.  It may also result in your accepting the moving party’s framing of the case. I recommend using the most effective order for the arguments in your memorandum, even if it differs from the order used by the moving party.

The order of arguments is also an issue when there are cross-motions for summary judgment.  Although the initial opposing party must file a separate “Cross-Motion for Summary Judgment,” the arguments opposing the moving party’s motion and in support of the cross-motion should appear in the same memorandum.  It makes sense to divide the argument into major sections, the first containing arguments opposing the motion and the second setting forth arguments in favor of the cross-motion.  Within each section, however, you can order the arguments based on the considerations outlined above.

Keep the focus on your client’s arguments.  Within each division of the argument section and within individual paragraphs and sentences, maintain a focus on your client’s position and view of the case.  Refer to your opponent’s position in subordinate clauses or buried in the middle of sentences and paragraphs.

Keep your arguments short.  Keep arguments as short as possible.  Each legal argument should focus on the specific issue in controversy.  Avoid wasting precious space, and losing the reader’s attention, by including pages of boilerplate law on undisputed background issues.

Be honest and do not ignore opposing arguments.  Be honest and accurate about the law.  Don’t ignore contrary authority (aside from the ethical implications of doing so, the court or your opponent will find it, anyway).  Be sure that the cases you rely on fully support the legal propositions for which you cite them.  Your credibility and the persuasiveness of your memorandum will be seriously damaged if the judge concludes that your version of the law cannot be trusted.

Similarly, do not ignore the opposing party’s arguments, even if you represent the moving party and the opposing party has yet to file a memorandum.  If the opposing party made an argument earlier in the same case (e.g. at the preliminary injunction stage), the same argument will likely be made again in opposition to summary judgment.  Even if the opposing party has not discovered the best argument against your position, the court probably will.  It is best to deal with the opposing party’s likely arguments as best you can in your primary brief, especially since Rule 9A(a)(3) allows reply briefs without leave of court only where the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum.

Choose your authority carefully.  As part of keeping your arguments simple and short, carefully consider your use of citations.

• Stress binding authority. Absent that, look for the most authoritative, persuasive authority (e.g. cite to a persuasive federal case from the First Circuit instead of one from a different circuit);
• Choose authority in which the court was applying the same standard of review or was deciding the same or similar procedural motion (e.g., prefer cases deciding motions for summary judgment to cases involving motions to dismiss);
• Unless it is absolutely clear, use parentheticals to show the reader why you are citing to a particular case;
• Limit string cites. The judge does not want to read ten cases when one or two would prove your point.  String cites are proper, however, when the number of courts on each side of an issue is actually relevant, as in a split of authority or when asking the court to rule on an issue of first impression.
• Citing unpublished decisions of the Appeals Court.  An Appeals Court decision issued pursuant to Appeals Court Rule 23 (formerly Rule 1:28) may be cited as persuasive authority if issued after February 26, 2008.  Such opinions are readily available and are certainly worth citing, especially when no other appellate authority exists or when they are particularly relevant to your case. You should always note that the decision cited is unpublished.
• Citing trial court opinions. Trial court opinions have become much more accessible in recent years via Westlaw, Lexis and similar resources.  However such opinions are, at most, persuasive.  Nevertheless, I believe that it is useful to cite trial court opinions when no other authority is available, when they present your position particularly forcefully, or when they involve facts very similar to your case.

Maintain the reader’s interest.

Your brief will be more effective if it holds the judge’s interest.  Simple steps you can take to hold the reader’s interest include:

• Avoiding long quotations. Short quotations, on the other hand, enhance the power of your argument.  Introduce any quotation by explaining why you are including it and what legal proposition it supports.  Doing so ensures that the reader understands your argument even if he or she skips over the quoted material;
• Using short paragraphs;
• Varying sentence length. A paragraph will also flow better if the sentences differ in length.  Although short sentences are powerful, they lose their effectiveness if overused;
• Repeating words and sentence structure to increase effect. We’ve all heard this technique used in speeches.  It also works in briefs.

In addition to the foregoing, you should also consider the following when drafting your argument section:

• Because any judge worries about the wider implications of a ruling, and no judge likes being reversed on appeal, try to show that the result you seek can be accomplished by applying a rule with limits. If you are opposing the application of such a rule, argue that it will lead to unforeseen, highly detrimental consequences;
• Judges want to reach decisions which are just, not merely technically correct. Your argument should not only identify the rule of law you want the court to apply, but also explain why the purposes and policies underlying the law support its application to the facts of the present case;
• Avoid emotional presentation and attacks on the opposing party or counsel. For example, while asserting that your opponent’s reliance on a case is “misplaced” is acceptable, you should avoid stating that your opponent is “misrepresenting” the law;
• Do not use jargon. Use simple, clear language. A busy judge will not appreciate your making an argument any more complicated than necessary;
• Avoid excessive use of bold print, underlining or italics. Used sparingly, emphasis stresses your most important points.  However it quickly loses its effect if overused;
• Avoid using footnotes for substantive content. As a general rule, if an argument is important enough to appear in your brief, put it in the text. You might consider placing all of your citations in footnotes, however.  Doing so will improve the readability of your brief.

The argument section of your summary judgment memorandum is your best opportunity to persuade the judge to rule in your client’s favor.  A well-crafted argument will frame the facts and legal issues of a case in the manner most favorable to your client, will educate the justices about the relevant facts and law, and will lead them, inexorably, step by step, to the desired result.  The foregoing suggestions should help you take advantage of this golden opportunity.

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Updated August 24, 2020

Superior Court Rule 9A(b)(5) requires that any motion for summary judgment be accompanied by a “statement of the material facts as to which the moving party contends there is no genuine issue to be tried” (“Statement of Facts”).  Failure to provide a Statement of Facts constitutes grounds for denial of the motion.

The Statement of Facts consists of consecutively numbered paragraphs, each of which asserts such a material fact.  Rule 9A(b)(5)(i). Each such statement must be supported by citations to the record (“pleadings, depositions, answers to interrogatories, responses to requests for admissions, affidavits or other evidentiary documents”).  Id.  The Statement of Facts is subject to a length limit of 20 pages.  Id.

Rule 9A(b)(5)(i) also lists material which should not appear in a Statement of Facts, including, without limitation, background facts, quotations from various documents (though the Statement of Facts may establish the existence and authenticity of such documents and the quotations may be included in an addendum to the memorandum), quotations for statutes, regulations or rules (though the quotations may be included in an addendum to the memorandum).

The moving party must serve the Statement of Facts on the opposing party with the motion papers.  In addition, the moving party must, contemporaneously with service, email a copy of the Statement of Facts to the opposing party, in Rich Text Format (RTF), unless the parties otherwise agree on another word processing format.  Rule 9A(b)(5)(ii).  The Rule excuses email service in limited circumstances. Id.

The opposing party is required to respond to each of the facts stated in the moving party’s Statement of Facts.  Rule 9A(b)(5)(ii). The responses must be inserted into the Statement of Facts so that each of the moving party’s statements is followed directly by the opposing party’s response.  Id.  Each such response must either admit the fact stated or dispute it.  For each fact disputed, the opposing party must provide citations to the record.  Id.

The response to a factual statement in a Statement of Facts should be “undisputed” or “disputed.” If the fact is disputed, the responding party must provide a citation to the record or state that the portion of the record cited by the moving party does not support the stated fact. Rule 9A(b)(5)(iii)(A) states that “the response to the numbered paragraphs [of the moving party’s Statement of Facts] shall be limited to stating whether a given fact is disputed and, if so, cite to specific evidence, if any, in the Joint Appendix that demonstrates the dispute.” Rule 9A(b)(5)(iii)(A) also lists material which may not be included in the opposing party’s response to the moving party’s Statement of Facts, including “commentary on whether the fact asserted is relevant or material” and “legal arguments or advocacy-oriented characterizations concerning the sufficiency, relevance or materiality of the moving party’s factual proffers”

It should be noted that any fact which the opposing party does not dispute will be deemed admitted for purposes of the motion for summary judgment.  Id.

In addition to responding to the moving party’s statements of fact, the opposing party may wish to rely on additional evidence which the moving party has not included in the Appendix.  Unless the opposing party is also filing a cross-motion for summary judgment, the opposing party is prohibited from adding additional facts to the Statement of Facts. Instead, “[o]pposing parties who argue that additional facts warrant denying summary judgment shall include those facts in the opposition memorandum, each to be supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.” Rule 9A(b)(5)(iii)(B).

When there are cross-motions, the party who serves a motion for summary judgment first is regarded as the moving party, while the other party is regarded as the opposing party.  That opposing party should respond to the moving party’s facts, as described above, and then, as a continuation of the Statement of Facts, state additional facts both in opposition to the moving party’s motion and in support of the opposing party’s cross-motion.  The original moving party then has the opportunity to respond to the additional facts and any fact which is not disputed will be deemed admitted for purposes of the motion for summary judgment.

Ultimately, the moving party files the consolidated Statements of Facts with the court as part of the Rule 9A package.

For suggestions concerning the drafting of an effective Statement of Facts, click here.

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Updated August 24, 2020

Superior Court Rule 9A(b)(5) requires that a motion for summary judgment be accompanied by a “statement of the material facts as to which the moving party contends there is no genuine issue to be tried” (“Statement of Facts”).  The purpose of the Statement of Facts is to assist the judge in determining whether there exist any genuinely disputed material facts.

With that purpose in mind, consider the following requirement and suggestions when drafting your next Statement of Facts:

• Rule 9A(b)(5)(i) limits the moving party’s Statement of Facts to 20 pages.
• Rule 9A(b)(5)(i) also lists material which should not appear in a Statement of Facts, including, without limitation, background facts, quotations from various documents (though the Statement of Facts may establish the existence and authenticity of such documents and the quotations may be included in an addendum to the memorandum), quotations for statutes, regulations or rules (though the quotations may be included in an addendum to the memorandum);
• State only facts supported by the record and for each fact provide a citation to the record;
• Ensure that the portions of the record cited are admissible (e.g. do not contain inadmissible hearsay);
• Do not include argument in the Statement of Facts. In other words, do not state conclusions based on the facts;
• Because the opposing party is required to respond to each paragraph of the Statement of Facts, try to state only one fact per paragraph;
• Make the stated facts simple, such that they force the opposing party to admit or deny the fact;
• The response to a factual statement in a Statement of Facts should be “undisputed” or “disputed.” If the fact is disputed, the responding party must provide a citation to the record or state that the portion of the record cited by the moving party does not support the stated fact;
• Sometimes, because a paragraph of the Statement of Facts contains multiple facts or has multiple possible implications, the responding party may need to provide a more detailed response. For example, if the statement is that “on Sunday the defendant drove the plaintiff and another employee to the job site,” the defendant might respond, “UNDISPUTED that defendant drove plaintiff and one of defendant’s employees to the job site.  DISPUTED to the extent the statement asserts that plaintiff was an employee of defendant.”
• Rule 9A(b)(5)(iii)(A) states that “the response to the numbered paragraphs [of the moving party’s Statement of Facts] shall be limited to stating whether a given fact is disputed and, if so, cite to specific evidence, if any, in the Joint Appendix that demonstrates the dispute.”
• Rule 9A(b)(5)(iii)(A) also lists material which may not be included in the opposing party’s response to the moving party’s Statement of Facts, including “commentary on whether the fact asserted is relevant or material” and “legal arguments or advocacy-oriented characterizations concerning the sufficiency, relevance or materiality of the moving party’s factual proffers”;
• The opposing party is prohibited from submitting a separate statement of additional facts, unless the opposing party has filed a cross-motion for summary judgment.  Instead, “[o]pposing parties who argue that additional facts warrant denying summary judgment shall include those facts in the opposition memorandum, each to be supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.” Rule 9A(b)(5)(iii)(B).
• Where the opposing party relies on evidence not included in the exhibits served by the moving party, the opposing party must serve the moving party with the new evidence in the form of new exhibits for inclusion in the Joint Appendix.

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