JUST THE FACTS
by
Judith Fabricant, Justice of the Superior Court
Civil litigators devote much time and attention, and much of their clients'
money, to motions for summary judgment. In the Superior Court, such a
motion requires a "statement of the material facts as to which the moving party
contends there is no genuine issue to be tried," with the opposing party's
response, pursuant to Superior Court Rule 9A(b)(5). In preparing the
statement, counsel would be well advised to keep in mind the phrase made famous
by Sergeant Joe Friday on Dragnet: Just the facts.
Rule 9A(b)(5) sets stringent requirements for the statement and response, and
prescribes consequences for failure to comply. Unfortunately, statements
submitted often depart from both the letter and the spirit of the rule. I
have tried a variety of approaches in response to such submissions, including
scolding footnotes, orders that motion papers be revised and resubmitted, denial
of motions for a moving party's failure to comply and, on rare occasions,
deeming facts admitted due to non-compliance by the opposing party. See,
e.g., Dziamba v. Warner & Stackpole, 56 Mass. App. Ct. 397, 399-401
(2002). None of these techniques seems to be getting the message
across. So, I offer a few words of advice.
An understanding of the purpose of the rule, and of how a judge uses the
statement, may assist. The purpose, quite simply, is to help the judge
find his or her way around the record, as efficiently as possible. That is
its only purpose. Summary judgment motion packages are often voluminous,
sometimes filling multiple bankers' boxes. The judge needs a
roadmap.
To serve that purpose, the statement must clearly
identify the facts that are and are not disputed, and as to the former, must
point out the particular evidentiary materials the judge must examine to
determine the genuineness of any purported dispute. The judge can then
rule as a matter of law, having considered the arguments in the memoranda, on
whether any disputed fact is material, and on the legal significance of the
undisputed facts. Anything in a statement that does not serve these
purposes merely adds clutter, making pertinent evidentiary material difficult to
find, and genuine disputes difficult to identify. The credibility of
counsel suffers, and with it the persuasive effect of the entire effort.
A well-crafted statement under the rule bears some resemblance to skillful
cross-examination. The factual assertions, like good cross-examination
questions, are short, direct, and purely factual, phrased in words that have
clear and precise meaning, without characterization or conclusion. A party
responding to such an assertion, like a witness under effective
cross-examination, has no choice but to respond directly. Assertions that
do not fit this description invite the kind of response a witness may give to a
poorly-framed question: an assertion of a purported dispute based on quibbling
over the meaning of words or phrases, or over purportedly misleading
selectivity, or over part of a compound assertion. The result is useless
to the Court, and to the party seeking to establish that the material facts are
undisputed.
A proper response by the opposing party to a factual assertion consists of
the word "undisputed" or "disputed,"and, if the latter, a record reference
and/or a statement that the evidence cited by the moving party does not support
the assertion. Nothing more. Record references should be precise and
specific, identifying the particular paragraph of an affidavit, the page and
line of a deposition, or the particular part of a document.
Argument, whether about how or why the record does or does not
support the assertion, or about what is or is not material, or about any other
topic, belongs only in the memorandum of law. The Rule 9A(a)(5) statement
is not an opportunity to circumvent the page limit for memoranda.
Qualifying assertions - such as that the factual assertion is not a
complete description of the matter referred to, that the party admits the fact
for the purpose of summary judgment but reserves the right to contest it at
trial, or that the cited portion of a document is not the only portion of
significance - accomplish nothing except to add words and pages.
One area where statements and responses often run into trouble is in
description of contracts, insurance policies, or other instruments. Often
a moving party describes or characterizes the document, or quotes part of
it. The responding party then asserts a purported dispute based on
disagreement about the description or characterization, or incompleteness of the
portion quoted. The exercise is fruitless. A better approach is to
say only that "Exhibit 2 is a true copy of a contract executed by John Smith and
Jane Jones." Unless the opposing party disputes authenticity, he or she has no
choice but to respond, "undisputed." The parties then make their arguments
about the meaning or effect of the document, or the significance of its various
provisions, in their memoranda, and the Court evaluates those arguments by
reference to the document itself.
Rule 9A(b)(5)(iv) authorizes the opposing party to "assert an additional
statement of material facts," with record references, as "a continuation of the
opposing party's response." This does not mean that the opposing party is
free to add facts within its response to the paragraphs of the moving party's
statement. That makes the document unintelligible. An opposing
party's statement of additional facts should follow after the moving party's
entire statement and the opposing party's paragraph by paragraph response to
it.
The point of the Rule 9A(b)(5) statement, overall, is to
identify each fact that either side considers material, and with respect to each
separately, to enable the Court to determine whether a genuine dispute
exists. Counsel who prepare their submissions with these purposes in mind
will assist the judge, enhance their own credibility, and promote prompt and
just resolution of their motions.
Judith Fabricant has been an Associate Justice of the Superior Court
since 1996. She has sat in the Business Litigation Session half of each
year since 2007, and currently serves as its Administrative Justice. She
served as regional administrative justice for Norfolk County from 2005 to 2007,
and currently chairs the Court's Education Committee. Before her
appointment to the bench she was an Assistant Attorney General and Chief of the
Attorney General's Government Bureau. She is a graduate of Yale
College and Yale Law School.