Last month, I offered ways to improve the statement of
facts supporting or opposing a motion for summary judgment. The goal
of an SOF is to provide evidence to support your facts, so your goal is
to make it easy for the judge to find your evidence. This month, we conclude the column with more pointers.
Each time you cite evidence, say which exhibit number it is. Each time
you refer to evidence in the statement of facts, you should cite where
it can be found in the exhibits. For example, we sometimes see
“Deposition of Smith, SOF Exhibit 4”
the first time the Smith deposition
appears, and then simply “Smith
Depo.” after that. But when the judge
sees “Smith Depo.” on page 5 without
an exhibit number, he or she has to scan
back through prior paragraphs to figure
out which exhibit contains the deposition. This diverts the judge’s attention
from the merits. The better course is to
cite “Smith Depo., SOF Exhibit 4” (or
some other citation form) every time.
Do not cite to multiple separate statements of fact. Sometimes lawyers will
file a motion or response that refers to
multiple separate statements of fact,
judge. Put all the necessary evidence in one place. Use a single separate statement of facts supporting your motion or
There is a limited exception. Sometimes you file a supplemental statement of facts in support of a reply. In this case,
you probably don’t need to re-file all your exhibits from the
Know the difference between critical facts and background
facts. Not all evidence cited in an SOF is of equal importance.
There is, on the one hand, the story you tell to provide
context for the case as a whole. Those facts should be supported by record citations even if they’ll probably be uncontroverted. But for most motions, there is only a handful of
critical facts that truly affect the ruling. You need to find ways
to highlight the critical stuff so that background evidence
does not drown it out.
8 ARIZONA ATTORNEY FEBRUARY 2015 www.azbar.org/AZAttorney
CIVIL PRACTICE POINTERS by Hon. Randall H. Warner
Hon. Randall H. Warner
is an Arizona Superior Court Judge
in Maricopa County.
There are many ways to do this. Sometimes you quote important document language or deposition testimony in the SOF
itself, or in the body of the motion or
response if it’s really critical. Sometimes you
attach a key exhibit, such as a contract, to the
motion or response. The important thing is
to distinguish what you put in the record
because you had to from what you really
need the judge to focus on.
Make the exhibits easy to find. Before e-fil-ing, it was common knowledge that judges
preferred SOF exhibits to be tabbed or
separated by colored dividers, to make them
easy to locate. Electronic filing has made
this hard again, at least in Maricopa County.
There are many reasons for this, but suffice
it to say that our computer system does
not make onscreen reading convenient for
judges. Of course, we can print everything
out, but we still won’t have tabs or colored
dividers, so we’ll have to flip through everything looking for Exhibit C or Exhibit HH.
This just means you have to work harder
to make it easy for judges to find your evidence. One way to do this is to Bates label
the SOF exhibits. That way, instead of referring to “Page 254 of Exhibit 15,” you just
refer to Bates number SOF000057, and the
judge can scroll (or flip) directly to that page.
Barring that, you can highlight critical
evidence by including less of the non-critical
evidence. For example, if all you need is
a few pages of deposition testimony, just
include the cover page and the critical
pages; we don’t need the whole deposition.
Or, as discussed above, you can quote critical testimony or document language in the
body of the SOF—anything to separate the
critical stuff from the run-of-the-mill evidence.
These suggestions are not hard-and-fast
rules; there will be times when clarity or persuasion may point to a different approach.
But the goal of a separate statement of facts
is to support your arguments, and that goal
is always best served by making it easy for
the judge to see the important evidence. AZ AT
Simplifying the Statement
of Facts (Part 2)
Welcome to a new column that provides tips
Make it easy for the
from judges on civil practice. If there are
practice tips you’d like covered—or if
you are a judge who would like to write a
column—write to email@example.com.
judge. Put all the
in one place.