From the Boston Bar Journal: Just the Facts

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.

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