The separate statement is the key note that sums up all the hard work you have put into opposition. The court should read the separate statement and know exactly what the issues are – and why the claim should be dismissed. A separate Declaration masterpiece will be music to the ears of the court. This method also makes it easier to copy/paste essential facts into the applicant`s brief and table. Once the master document is finalized, I leave these next steps to my legal assistant. To include the additional essential facts in your memorandum, make a copy of the finished PMFs_Master document and name the new document PMFs_PsAs (or whatever you want). By including the identification authorities in the separate declaration, you can store at least one paragraph of real estate in the memorandum. However, use this technique sparingly; just for the supposedly undisputed facts that really matter – remember, KISS. Focus the Court`s attention on the really contentious issues. Even if you could provide a full list of quotes explaining why a supposedly undisputed essential fact is irrelevant, ask yourself if the fact harms your client`s case before copying and pasting the authorities. If the material fact is harmless, do not bother.
No document is more important in challenging summary judgment than a separate statement. It is for the court of first instance to refuse to take into consideration evidence which is not mentioned in the individual statement. (San Diego Watercrafts, Inc. v Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316 [Conclusion that, since „the question of whether to consider evidence not mentioned in the plaintiff`s separate statement is left to the discretion of the trial court”, the so-called „golden rule” should be formulated in a „base metal”.].) Logically, either: (1) the defendant does not dispute any of the plaintiff`s additional essential facts (in order to remove all disputed facts from the dispute and thus make them undisputed); or (2) each of the applicant`s additional essential facts is not supported by the evidence (i.e. there are no additional material facts that are challenged for lack of preservation of evidence – which is why it is crucial to provide the correct basis for the evidence!). None of these options require a separate instruction response. This means that the argument in the reply or in the form of the defendant`s objections to the plaintiff`s evidence should suffice. Making Beautiful Music – The Art of Conceiving Material Facts Again, my general, non-legal (but completely practical) rule of thumb is to keep it simple. Be clear and concise. Admit the facts if possible. If only part of a material fact is disputed, allow the undisputed part.
Don`t overcomplicate a problem. Gain credibility points by focusing the Court`s attention on the essential facts that are truly questionable. Remember that you can lose a few battles (i.e. agree that certain facts are „undisputed”) and win the war. Use court time wisely – don`t force the court to seek and consider ultimately undisputed evidence. You may want to start by attacking the allegedly undisputed material facts of the accused: you walk into your office and see a huge pile of papers on your desk – the dreaded urgent motion. You are reading the defendant`s separate statement, and that is rubbish. Your mind is racing with all the ways you will show the court how the defendant is completely wrong. Going into attack mode and showing that one of the accused`s supposedly essential facts is false, misleading, unsupported by evidence, etc., is natural. Don`t give in – yet to this urge.
No matter how detailed your material facts are, keep it simple. Write the applicant`s additional essential facts in a simple and simple way. By definition, „material facts” are „facts,” not „arguments.” Record the arguments for the memorandum. The court will assess clarity. Making music, not noise. Undisputed Facts and Respondent`s Evidence: Plaintiff`s Response and Supporting Evidence In addition, I number paragraphs separately using an auto-numbering feature (Microsoft Word or WordPerfect). Finally, each PMF corresponds to the paragraph number. When I change or summarize the order of the essential facts, the paragraph numbers are automatically updated. When the additional material facts are finally ready, it is easy to replace the spaces in the CMP: just add the existing paragraph number.
But you may want to distinguish a case on which the defendant relies, or reconcile the facts of your case with those of a large published opinion. In this case, explain the essential facts in more detail. Instead of „The vegetation at the intersection was overgrown,” the material facts could be: To continue with the example of a dangerous state of public property, the material facts in my main document might look like this: The art of writing „material” facts requires a thorough understanding of the law as it applies to you. It is not enough to know the elements of a plea. Therefore, you need to know the following: (1) the facts of the cases you will be relying on; (2) the facts of the defence`s cases; and (3) how you distinguish the defendant`s authority or otherwise argue that it is not applicable. Only then can you understand what makes a fact „material” in your case. Response to the Respondent`s Separate Finding on Allegedly Undisputed Material Facts The mechanisms for drafting the plaintiff`s separate statement of objection Making a copy of the main document ensures that you always have that version to refer to in the event of your computer crashing – essentially in anticipation of Murphy`s Law. Remove the auto-numbering feature and remove citations only as evidence, leave the PMF quote intact, and then copy the essential facts and PMF quote into your memorandum to clean up paragraph breaks or other formatting issues. (You can further consolidate the facts in the memorandum at any time if necessary.) If the defendant requests an electronic version of the plaintiff`s separate statement on other material disputed facts, I will send the document, but politely point out: (1) A separate response is not permitted under the Code (Nazir v.
United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249, 525); and (2) filing a response to the applicant`s additional material facts will only show the court the entirety of the disputed material facts. With so many substantive contentious facts, the court cannot render summary judgment. Drafting the applicant`s additional essential facts in the form of a numbered paragraph is useful in several respects. First of all, I can easily say where I lack quotes about the evidence. I try to write down my additional essential facts in case of litigation with as many quotes as possible about witness statements or other evidence. If six people agree: „The vegetation at the intersection was present for many years” (or „the traffic light was green” or „the plaintiff crossed the crosswalk”, etc.), I want the court to see a long list of quotes behind my only important fact.