When it comes to preparing a summary judgment motion, many attorneys prepare the supporting documents in the same order each time (and instruct new attorneys to do so, too). But one order may not fit all cases.
The order in which you choose to prepare the supporting documents for summary judgment may depend on personal preference, the complexity of the case, and whether or not you’ve completed legal research.
Option #1: Prepare separate statement first. If legal research is already completed, there are advantages to starting on the separate statement because it can serve as a checklist for preparing additional documents. The documents can be prepared in the following order:
- Separate statement of undisputed facts;
- Supporting evidence, using the separate statement as a checklist to make sure there’s evidence for all elements of the causes of action or defenses to be proved or disproved;
- Notice and proposed order, carefully phrasing the issues in terms of the arguments and evidence, and clearly articulating the relief sought;
- Supporting memorandum, including information developed in the previous documents, as well as legal authorities and argument.
Option #2: Prepare supporting memorandum first. If legal research isn’t yet completed, beginning with the preparation of the supporting memorandum may help identify the substantive elements of causes of action or defenses that must be proved or disproved, and the facts necessary to support the position. Under this option, the documents are prepared in the following order:
- Supporting memorandum;
- Separate statement for use as a checklist for evidence once the legal issues have been defined;
- Supporting papers to ensure that there’s evidence for all elements of the causes of action or defenses to be proved or disproved;
- Notice and proposed order, carefully phrasing the issues in terms of the arguments and evidence, and clearly articulating the relief sought.
And there’s a possible third option: Starting with a rough draft of the notice and proposed order as a “roadmap” for the other documents.
Regardless of the option you choose, you’ll have to go back and forth between the separate statement and the memorandum in the drafting process to make sure they complement each other. Once complete, compare and review the separate statement and memorandum to ensure consistency and the existence of evidentiary support for all the facts you assert or arguments you make.
Which option do you tend to use? Do you give it thought each time you move for summary judgment, or do you follow your own routine order every time?
Get more practical advice for drafting your moving papers in CEB’s California Summary Judgment, chapter 6. Also check out CEB’s program How to Write A Persuasive Summary Judgment Motion or Stellar Opposition to One, available On Demand.
Other CEBblog™ posts you may find useful:
- Drafting a Summary Judgment Order
- 8 Questions to Ask Before Making the Move for Summary Judgment
- 10 Things to Check Before Moving for Summary Judgment
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