Part 2 of this article appeared in the July/August issue of the Sacramento Lawyer. This installment picks up where the second one left off.

My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten court rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind.

The second and third most important documents in the Summary Judgment package (after the Separate Statement) are the Memorandum of Points and Authorities and the Exhibits in support of or in opposition to the motion. This installment will offer tips on the preparation of both.

Memoranda of Points and Authorities

Several principles should be kept in mind while preparing a persuasive Memorandum of Points and Authorities. First, make every effort to adhere to the page limitations set forth in the Rules of Court. These limits are an outside maximum, not a suggested length. Counsel should always strive to make their point in fewer words. Bear in mind that the Law and Motion Judge has a limited amount of time to read and digest a tremendous amount of material. Many, if not most motions for summary judgment and oppositions thereto are measured in feet rather than inches. By writing in a concise manner, the attorney will more effectively convey the point to the reader.

However, do not abandon logic in seeking to comply with the page limitations. For example, do not use tricks and devices (such as smaller fonts and extensive use of footnotes) to stay within the rule. Such a memorandum is much harder to read than one prepared in a more conventional manner. Bear in mind that the Court has the discretion to strike a memorandum that does not comply with the rules of court. If the argument simply cannot be made within the page limits despite a substantial effort to do so, one should follow the procedure to request permission to file an oversized memoranda. See Rule 313(e). Reading a few extra pages is easier on the judge than reading small type and argument in footnotes.

Second, avoid the indiscriminate use of footnotes. If counsel's considered opinion is that footnotes are necessary, make sure that they are for explanatory reasons or for matters that are truly of marginal relevance. Do not place the discussion of the authorities upon which you rely in a footnote. If it is important enough to rely on, it is important enough to include in the text. Also, do not put requests for judicial notice in a footnote; they are required to be set forth in a separate document. Rule 313(k). Briefs that contain excessive "argument footnotes" utilized to avoid the page limitations run the risk of being stricken and disregarded by the court.

Third, it is often helpful to list major points in a bulleted or numbered list. This technique often makes counsel's argument stand out in the judge's mind. Such lists are eye-catching and often make complicated matters easier for the reader to grasp. Lists are especially useful when a series of interrelated points are sought to be made.

Fourth, make sure that all filed papers fully comply with the Rules of Court. This writer suggests that counsel develop a checklist that is consulted every time a Motion for Summary Judgment is prepared that lists the required documents and the requirements of each so that nothing is overlooked. In the Memorandum checklist, Rules 311 and 313 should have a prominent place.

Rule 311 sets forth the general format required for all papers filed in support of any motion. Pay particular attention to Rule 311(d). In this judge's view, notwithstanding Rule 313(i), using Acco fasteners to attach all summary judgment papers (memorandum, exhibits, separate statement, etc.) together in one huge document violates this rule. Summary judgment papers presented in this manner make all the documents very difficult to handle and hard to read. Hence, there is no violation of Rule 313(i) when lengthy documents are presented separately, since it would not be "practicable" to submit one bound document that is difficult to manage and to read. Rule 313(i), in this Judge's opinion was designed for motions that do not have extensive declarations with exhibits and other lengthy evidentiary material. See, e.g., Rule 342(g) (requiring evidentiary material in summary judgment motions that exceed 25 pages to be separately bound).

Rule 313 sets forth the specific requirements of the memorandum of points and authorities. One of the subsections often ignored is subsection (j). This portion of the rule requires that references to exhibits are to include the number or letter of the exhibit and the specific page, paragraph, and line numbers.

Bear in mind that the failure to comply with the Rules of Court with respect to Law and Motion and other trial court matters may subject counsel to monetary sanctions (Rule 227) and, depending on the violation, may result in the papers not being considered.

Fifth, avoid ad hominem attacks. Such personal accusations contained in legal memoranda are always distracting to the court and never help advance one's cause. As the Court of Appeal has noted, such attacks are "more cathartic than tactical," and a brief is not an appropriate vehicle for an attorney to "vent his spleen" because it requires a response by the opponent and processing by the court. Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32. If the other side has engaged in such tactics, the best response is often to rise above the fray, thereby impressing the court with one's professionalism.

Sixth, spend some time and effort improving legal writing skills. Persuasive writing is an art form. The contemporary expert in the field in this writer's opinion is Bryan Garner, a law professor formerly of the University of Texas, and now at Southern Methodist University. His book on persuasive legal writing, The Winning Brief, is a must read by attorneys wishing to improve their skills in this area. Mr. Garner writes and lectures extensively in the field of legal writing. He maintains a list of his publications and seminars on his website, http://www.lawprose.org/.

It should be noted that this writer does not always agree with Mr. Garner's suggestions. For example, he advocates placing citations to cases in footnotes so that the text of the argument contains only text and not citations and text. However, such a practice often leads to "head- bobbing" since the eye goes back and forth from the text to the bottom of the page for the citation. This Court's preferred practice is to cite to cases in the text and to avoid footnotes for such a purpose.

Supporting Exhibits

The proper preparation of the exhibits in support of and opposition to the motion will maximize their admissibility and persuasive effect. What follows are some suggestions to avoid common errors when presenting evidentiary material.

First, bear in mind that the Court can only consider and rely on admissible evidence. Simply attaching documents generally will not suffice; the evidence submitted must be admissible. That generally means that the document must be properly authenticated and come within an exception to the hearsay rule. The party submitting exhibits should attempt to anticipate objections that may be made. Example: A hearsay objection usually will be sustained to a transcript of deposition testimony taken in a case other than the one before the Court unless (1) the witness is shown to be unavailable and meet other requirements (Evidence Code sections 1290 and 1291), or (2) the witness has signed a declaration in the case before the Court for decision stating that his testimony in such transcript is true and based on his personal knowledge.

Second, submit proper declarations. In order to be considered, a declaration must comply with CCP section 2015.5 and be based on personal knowledge. Witchell v. DeKorne (1986) 179 Cal.App.3d 965. Attorney declarations are often insufficient because of a lack of persona knowledge. An attorney declaration which states "attached hereto is a true and correct copy of the contract entered into between A and B," will result in an objection thereto being sustained unless there are sufficient foundational facts setting forth the basis of the attorney's personal knowledge. Make sure that the declaration complies with Rule 315(a), which requires the caption of a declaration to state both the name of the declarant and the motion that it supports or opposes.

Third, when attaching pages from deposition transcripts, make sure to comply with Rule 316(c). This rule requires the portion of the deposition testimony relied upon to be highlighted. It is very frustrating to the court when this rule is not followed, especially when a large number of transcript pages are filed. Bear in mind that the court is jumping from the citation of evidence in the Separate Statement or Memorandum to the evidence itself. If the transcript is not highlighted, the court has to waste its time by scanning the page to find the relevant part. This judge has stricken and refused to consider Summary Judgment papers that failed to comply with Rule 316(c) where voluminous transcript pages were cited and replied upon. Counsel would be wise to comply with this rule to avoid his/her papers meeting such a fate.

Fourth, make sure that all exhibits are separated by an 8 ´ x 11 sheet "with hard paper or plastic tabs extending below the page, bearing the exhibit designation." Rule 311(e). What most lawyers ignore is that rule's additional requirement that an index of exhibits be provided.

Fifth, separately bind evidentiary material that exceeds 25 pages. Rule 342(g).

Sixth, make sure all necessary evidence is supplied with the moving papers. It is usually too late to submit evidence with the reply papers. See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308.

This judge looks forward with eager anticipation to reading the improved memoranda of points and authorities and exhibits that are sure to result if the suggestions set forth herein are followed.

September / October 2005