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.
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, have 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. Your summary of the record can serve as a draft of the 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 Statement of Facts 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.
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. Every factual statement in your facts section, and throughout your summary judgment memorandum, should be followed by a citation to the paragraph of the Statement of Facts which, in turn, cites to the portion of the record which supports the factual proposition. Thus, if the fact is that plaintiff was an employee of the defendant, the relevant paragraph of the Statement of Facts would cite directly to the record (e.g. to an employment contract or affidavit) while the citation in the memorandum would simply cite to “SOF ¶__.”
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/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.
Base the fact section of your memorandum on the Statement of Facts. Drafting the Statement of Facts and drafting the factual section of the memorandum are highly interrelated. You might have a first draft of a Statement of Facts based on the summary of the record you prepared. The same facts, with the paragraph numbers and some of the paragraph breaks removed, provide a good starting point for the factual section of the memorandum. However, as you draft the memorandum’s legal arguments, it will likely become apparent that certain additional facts are necessary to support those arguments. These should then be added not only to the memorandum’s fact section, but also to the Statement of Facts. Conversely, it may become clear that certain facts are not relevant to any of your arguments. These might be removed from both the memorandum and the Statement of Facts, although some facts which are not technically relevant will still contribute to the “story” you are trying to tell.
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 the cited paragraph of the Statement of Facts must cite to a portion of the record which truly supports the facts asserted. 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.
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 the Statement of Facts, 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.
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. 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 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. In addition, 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.