Arizona Attorney - February 2015

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Do not cite to multiple separate statements of fact.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 response.

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 original SOF.

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
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 arizona.attorney@azbar.org.