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 suggestions when drafting your next Statement of Facts:
- 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. For example, when attempting to get the other party to admit that a contract contains a certain provision, simply quote the provision. Do not attempt to summarize, paraphrase or otherwise characterize the provision, as doing so will give the opposing party an opportunity to dispute the characterization;
- 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.”