MOTIONS FOR SUMMARY JUDGMENT (and other miscellaneous thoughts) Judge Claudia Laycock. 2. Will your motion prevail against a Rule 56(f) motion?

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1 I. Motions for Summary Judgment A. Some preliminary questions MOTIONS FOR SUMMARY JUDGMENT (and other miscellaneous thoughts) Judge Claudia Laycock 1. Is your motion likely to succeed? 2. Will your motion prevail against a Rule 56(f) motion? 3. Have you read Rules 7 and 56 and Orvis v. Johnson, 2008 UT 2, 177 P.3d 600? B. Writing the MSJ 1. What is the goal of your MSJ? 2. Are your undisputed facts straightforward and devoid of argument? 3. Are your undisputed facts supported by citations to admissible evidence? 4. Do your supporting declarations... a. Identify the declarant and use language appropriate to the declarant? b. Include personal knowledge (not hearsay)? c. Use active voice (not passive voice)? d. State material facts (not legal conclusions or arguments)? e. Use a neutral tone of voice? f. Cite clearly where the supporting evidence can be found? 5. Did you attach the cited materials? 6. Is your memorandum organized by cause of action? Does it use a neutral tone of voice? Does it contain complete sentences and organized thoughts? Does it avoid redundant arguments? Does it use as few words as possible? 7. Have you and another accomplished writer proofread your document several times each? 8. Have you eliminated excessive underlining, italics, boldfaced type, CAPITALIZATION, hysterical exclamation points!!!!!, and annoying and smug intensifiers, such as, clearly, obviously, and without a doubt? 1

2 C. Writing the opposition memo to the MSJ 1. Have you responded to the alleged undisputed material facts by restating each controverted fact and by providing an explanation of the grounds for any dispute, without reaching legal conclusions and making legal arguments? 2. Have you cited and attached relevant materials, such as affidavits or discovery materials, to support your denial of the controverted facts? 3. If you have included your own separate statement of additional facts in dispute, have you supported those facts by citation to supporting materials? 4. Have you responded to the MSJ using the same organization and causes of action used in the moving party s memorandum? II. Proofreading Some Fine Examples of a Failure to Proofread A. This is from an order signed by a judge. I dare you to find the verb in this single sentence. The Trustee s obligation to John Doe (under the conditions and as set forth in the Letter of Intent dated August 14, 2009, as subsequently amended September 8, 2009, together with: (A) an extension of the Coal Sale Contingency and the Labor Contingency described therein to October 21, 2009 and (B) the reimbursement for John Doe s out of pocket expenses as described below, all of which is restated in and replaced by the Asset Sale Agreement that is attached hereto as Exhibit M-3, which Asset Sale Agreement is referred to herein as the Letter of Intent ) for the break-up fee (the Break-up Fee ) is: (i) an actual and necessary cost and expense of preserving the Debtor s estate assets, within the meaning of 503(b) of the Bankruptcy Code; (ii) a substantial and commensurate benefit to the Debtor s estate; (iii) reasonable and appropriate, in light of the size and nature of the transaction and the efforts that have been and will be expended by John Doe; and (iv) necessary to ensure that John Doe will continue to pursue its proposed acquisition of the assets described in the Letter of Intent. The break-up Fee was a material inducement for, and condition of, John Doe s entry into the Letter of Intent. Absent authorization of the Break-up fee, John Doe s obligations under the Letter of Intent may terminate and the Trustee may lose the opportunity to obtain the highest and otherwise best available offer. 2

3 B. This is from a motion entitled Memorandum of Points and Authorities in Support of Ex-parte Motion for Leave to Serve Summons and Complaint Outside Expiration of 120 Days from Suit Filing. The attorney gets points for honesty, I guess. MATERIAL FACTS Suit was filed in this matter on April 1, 2009 I guess I should have known better. C. This is from a MSJ memo. Watch out for your spell-check feature, among other problems. Primary assumption of risk will not apply in the injury was not cause by an inherit risk. The Utah Code Annotated defines inherit risks as dangers, conditions, and potentials for personal injury... Such a contest does not fit into this definition of an inherit risk and is not an integral or natural part of participating in a softball game and is not an inherit risk. Even if it is an inherit risk, owners and operators of sports facilities have been found liable... D. This is from a memorandum in support of a motion to compel. Watch out for that spell-check feature again; it could change your tone of voice considerably. It is hard to believe that the museum has not used other professionals to determine the identify and authenticate artifacts received... For these reasons plaintiffs resentfully urge the court to produce an order compelling full discovery/disclosure... III. Other Miscellaneous Problems A. Its v. it s. Its is possessive. It s is a contraction for it is. You should never use it s in formal writing, which is what we engage in. Err on the side of safety; always write out the words it is. The worst use of an apostrophe I ve ever seen was it self. Yes, indeed, that s what the attorney wrote! B. Nouns and apostrophes. Just because it ends in the letter s does not mean it gets an apostrophe. Examples: One plaintiff sued his insurance company. Two plaintiffs sued their neighbor. The two plaintiffs do not possess anything; therefore, no apostrophe is necessary. C. Capitalization. If in doubt, do not capitalize. Just because a word is important does not mean that it should be capitalized. D. Trial not trail. Run spell-check for the word trail every single time! 3

4 IV. Some Worksheets to Help You in Times of Need ITS v. IT S The elegantly simple rule: If you can substitute the words it is or it has, then use an apostrophe. Otherwise, do not! It s that simple; don t make it any harder. You use formal writing in court documents, and contractions do not belong in formal writing. it s = it is or it has. It s is a contraction just like can t, don t, doesn t, won t all of which have an apostrophe. its = possession. Its is a possessive pronoun like my, mine, his, her, hers, our, ours, your, yours none of which has an apostrophe. Let s experiment. Circle the correct word (it s or its) in each sentence. 1. It s Its very clear our love is here to stay. (Ira Gershwin) 2. It s Its been a real nice clambake. (Oscar Hammerstein II) 3. It s Its a beautiful day in the neighborhood. (Mr. Rogers) 4. The cat lost it s its fight with the neighbor s cat again. 5. By 10:00 p.m. the courtroom had lost it s its charm. 6. The jury ordered it s its dinner at 5:30 last night. 7. It s Its going to be very difficult to survive without air conditioning. 8. The plaintiff concluded it s its case at 3:00 p.m. 9. It s Its a miracle! The jury reached it s its verdict in ten minutes. 10. The plaintiff filed it s its complaint last Wednesday. 11. Oh my word! It s Its 8:25 a.m. and the public defenders are here! 10. The tree outside my window lost it s its blossoms during the storm. 11. I can t believe how hard it s its raining outside. 12. The defendant corporation began it s its case in chief at 2:00 p.m. EXCESSIVE APOSTROPHES Rule: Apostrophes are used for two important purposes: A. Contractions. An apostrophe shows that a letter is missing. Example: I can t go, and he won t go! B. Possession. An apostrophe shows that a noun possesses something. Example: My dog s tail was wagging with all its might. Rule: Apostrophes are never used to make a noun plural. Do not add an apostrophe just because a noun ends in the letter s. Example: The two plaintiffs bumped into each other as they entered the room. (not the two plaintiff s or the two plaintiffs ) This is a major problem for many of us; watch carefully for this gigantic hole! It will swallow you entirely. Before you add that apostrophe, decide whether the noun possesses something. No possession means no apostrophe. 4

5 Rule: If a singular noun possesses something, put the apostrophe before the s. Example: I went to my sister s house for dinner. Rule: If a singular noun becomes plural by simply adding an s and then has the nerve to possess something, put the apostrophe after the s. Example: I went to my two sisters house for dinner. The Smiths home is up for sale. (All of those houses with name signs on them are wrong. It should be the Johnsons (home is understood), not the Johnson s. You could even just have the Johnsons. Just a personal gripe here!) Rule: If the plural noun does not end in s, but it still wants to possess something, put the apostrophe at the end of the word and add an s. Example: We found the women s room at the end of the hall next to the children s room. Here are some sentences to guide you in solving the apostrophe problem: 1. One defendant entered the courtroom. (singular noun, no possession) 2. Two defendants entered the courtroom. (plural noun, no possession) 3. One defendant s mother entered the courtroom. (singular noun, possession) 4. Two defendants mother entered the courtroom. (plural noun, possession) 5. One woman entered the courtroom. (singular noun, no possession) 6. Two women entered the courtroom. (plural noun, no possession) 7. One woman s mother entered the courtroom. (singular noun, possession) 8. Two women s mother entered the courtroom. (plural noun, possession) 9. Defendants Miguel and David entered the courtroom. (plural noun, no possession) PROPER NOUNS AND APOSTROPHES Rule: If a proper noun ends in an s sound, you can add an apostrophe and an s. Example: Mrs. Lewis s son ran out the front door. Texas s football fans are wildly enthusiastic. Rule: The rule stays the same if the proper noun ends in x or z; add an apostrophe and an s. Example: Ted Cox s and Frankie Perez s trials are both set for next Tuesday. Rule: If the proper noun ends with the letter s, but sounds like the letter z, you can just use an apostrophe; do not add an s. Example: Alice Jones daughter went to Harvard, while Terry Hastings daughter went to UVU. You can get away with adding the s, also, but it looks weird. Example: Alice Jones s daughter graduated from Harvard. Rule: When writing about a century or a decade, do not use an apostrophe. Examples: My grandmother was born in the 1900s. Some of us remember the 60s; that would be the 1960s! 5

6 Let s experiment. Add apostrophes to these sentences only when necessary. 1. I saw the four plaintiffs mother kissing the twin defendants father. 2. Mrs. Smiths attorney ordered the defendants out of the conference room. 3. All twelve judges were stunned by Paul Vances announcement. 4. The three witnesses statements were admitted into evidence. 5. The victims mother allowed her child to join in the other childrens games of tag. 6. Four hundred plaintiffs joined in the two class-action suits. 7. One gooses feathers were found at both crime scenes. 8. Two geeses lives were sacrificed for the families Christmas dinners. 9. The Robinsons moved into the house next door; their childrens bikes are everywhere. 10. The Thomases four cars went up for auction yesterday. 11. She finished her minute entries at 3:00 p.m. 12. Mike Jones car was destroyed in the accident. 13. Tamara Simmons feelings are easily hurt. 14. Susan Wilcoxs education was interrupted by three pregnancies. 15. When are Ernesto Lopezs jury trials? TO CAP OR NOT TO CAP Rule: Capitalize proper nouns. Otherwise, leave those common nouns alone! Just because the noun is important does not mean that it should be capitalized. Rule: Capitalize the first word in a sentence. Rule: If in doubt, do not capitalize! Most of us tend to capitalize too often. Examples of proper nouns: the State of Utah Utah Supreme Court Mr. Forlorn and Mrs. Forlorn Utah State Prison Utah State Hospital Justice O Connor the Fourth District Court Examples of common nouns: the state the appellate court the plaintiff and the defendant the prison mental health facility the judge the court, arraignment, pretrial, preliminary hearing, judgment, motion for summary 6

7 Let s experiment. Circle your choice as to each italicized set of words. 1. The Defendant defendant entered a Plea plea of guilty at the Arraignment arraignment. 2. The Judge judge set the Jury Trial jury trial for next Wednesday. 3. After two hours of negotiations, the Plaintiff plaintiff and the Defendant defendant settled the case without going to Trial trial. 4. Plaintiff plaintiff and Defendant defendant both objected to the Judge s judge s Ruling ruling and declared that they would take the matter to the Appellate Court appellate court. 5. Mr. Smith filed his Motion to Suppress motion to suppress later that day. The State state filed its Objection to Motion to Suppress and Motion to Have Mr. Smith Disbarred, Tarred and Feathered objection to motion suppress and motion to have Mr. Smith disbarred, tarred and feathered three days later. Note: The word pretrial has no hyphen in it. Also, always run your spell-check program. Look out for the word trial; if you do not watch out, you will be setting matters for trail and pretrail. Spell-check will not pick up that problem, unless you run the word trail. Finally, there is no e in the middle of judgment! THE BATTLE OF THE HOMONYMS Their, they re and there: 1. The word there is a plural possessive pronoun. You will notice that, like its, it has no apostrophe in it. It shows that a group of people or other nouns own or possess something. Example: The jury members grabbed their coats and went out the door. 2. The word they re is a contraction for they are. You will not use it under any other circumstances. Never! Example: They re leaving at four o clock this afternoon. 3. If the other two do not work, use there. Think of it as a pointing word which often starts a sentence or describes a direction. Use it when you are absolutely sure that the other two words will not work. Examples: There are too many people in this elevator. I see your cat hiding over there in the bushes. Two, too, and to: 1. The word two is a number. Example: The two defendants ran out of the courtroom. 2. The word too can mean also or can describe an excess of something. Examples: The defendants mother ran out of the courtroom, too. She was too angry to stay. 3. The word to is a preposition. Use it when two and too do not work. Examples: The attorney handed the exhibit to the clerk, who marked it and gave it to the judge. Hamlet pondered and said, To be or not to be. 7

8 Hear and here: 1. The word hear is what you do with your ears. Look at its spelling! Example: Please, speak up, counsel. I can t hear you. 2. The word here is much like the word there above; it s just closer. Example: Please, stand over here at the whiteboard. Let s experiment. Circle your choice as to each italicized set of words. 1. Their They re There are two too to many noisy people in this room; I can t hear here what s going on over their they re there by the jury box. 2. Please hand the exhibit two too to the two too to witnesses. 3. Their They re There leaving for lunch at 11:30 a.m. Suzie wants to come, two too to. 4. Please stand hear here by me so that I can hear here you better. 5. Their They re There books were thrown on the floor, two too to. 6. Can you hear here me now? Passed, past: 1. The word passed is the past tense of the verb to pass. Example: The witness passed the exhibit to the judge; the exhibit was proof that he had passed the test. 2. The word past can serve several functions. A. It can be an adjective. Example: Past history teaches us that this defendant will not show up for court. B. It can be a preposition. Example: The stalker drove past the house ten times that night; during the next day, he drove past her school five times. Bear, bare: 1. The word bear can serve several functions. A. It can be a four-legged man-eating noun. Example: The bear chased me up the tree. B. It can be a part of childbirth, i.e., to carry. Example: Little did she know that she would bear four children during her lifetime. C. It can mean endure, to transmit, to be patient. Examples: I can hardly bear hearing that story again. I bear good tidings. Bear with me; I m very sleepy. 2. The word bare means without the usual or appropriate coverings... or just sufficient. (American Heritage Dictionary) Examples: His bare head was a true sign of his age. We were happy just to have the bare necessities. 8

9 Picture, pitcher: 1. The word picture is a noun that hangs on a wall. It can also mean to envision something. Examples: That picture is not hanging straight. I can picture him with a mustache. 2. The word pitcher either holds water or throws baseballs. Examples: The judges appreciate ice in their pitchers. The pitcher was fired immediately after the game. Threw, through (and thorough): 1. The word threw is the past tense of the verb to throw. Example: He threw the ball. 2. The word through is a preposition. Example: He walked through the glass door. 3. The word thorough means painstakingly careful, which is what you should always be. Let s experiment. Circle your choice as to each italicized set of words. 1. The bear bare lumbered passed past the picnic table, picked up the picture pitcher of lemonade and threw through it threw through the air. 2. Because she was so through thorough, she passed past the exam with flying colors, for which they put her picture pitcher on the south wall. opinion. 3. The judge begged the prosecutor to give her just the bear bare facts. 4. I can t bear bare to talk about the bear bare essentials of the court s 9