Transcript

Miles Cooper: Howdy and welcome to the show. Coopers’ Code examines a legal issue and hits the highlights so we all achieve the best results for our clients. I’m Miles Cooper. And with today’s guest, Bryce Gray, who you may recall from the previous episode on preparing for expert depositions, Bryce is Coopers’ litigation manager, and we will be discussing opposing summary judgment and why it is such a gift to help one get absolutely ready for trial.

Before we get into today’s topic, a few words about Coopers’ LLP. We at Coopers are committed to thought leadership, developing the best possible talent, and honing skills through learning, practice, trial, and the relentless pursuit of justice for consumers. With lawyers licensed in California, Oregon, and Washington, we’re available for free strategic consultation on cases and we accept referrals and trial co-counsel opportunities. For more information, visit our website at coopers.law or email us at podcast at coopers.law.

As we get into opposing summary judgment, I think one of the best ways to be prepared for survey judgment is to expect it. What do you think?

Bryce Gray: I think you should know when it’s coming. And if you’ve been practicing law for how many ever years, you’ll know what kind of cases you’re going to see it in. You’re going to see it in, you know, a public entity design defense type case. You’re going to see it in medical malpractice cases. There are cases where you’re going to see it over and over and over and over again, and you should expect it. And should be prepared for it on day one.

Miles Cooper: I would add employment cases seems to be done in almost every single one. And in construction site injury cases, an area from how we grew up to win a lot of those third-party cases that privette issues seem to be absolutely ripe.

Bryce Gray: You’re always going to see a motion for salary and judgment in those cases.

Miles Cooper: So in that regard, when you’re preparing your case, say at the point that you’re thinking of filing a complaint, do you ever look at the jury instructions as a kind of a roadmap to the elements of the things that you’re going to want to plead as well as the facts that you’re going to want to discover so that you are able to develop those triable issues of material fact. And before I finish my long-winded question, we should probably talk about that. Ultimately, what do you need to be able to beat summary judgment?

Bryce Gray: you need to be able to establish a triable issue of material fact. And so material factors is one of the facts that you need to establish. One of the elements of the cause of action, and there needs to be a triable issue. The other side has to demonstrate an absence of a triable issue, which they’re going to try and do by foreclosing any question and discovery on the issue or through expert, um, depending on what, what the topic is, expert testimony, like in a medical malpractice breach standard of care or lack of breach standard of care, that’s going to be expert issue.

But oftentimes it’s just straight factual issue. So it is really looking at what are the necessary material facts I need to establish this cause of action. And on the other side, how can the other side establish an absence of one of those material facts.

Miles Cooper: If there is a disputed fact that the defense says one thing, plaintiff says another, and there’s evidence to support that, tie goes to the plaintiff and the case moves forward.

Bryce Gray: The tie goes to the person opposing summary judgment because there are occasions when we on the plaintiff side will file a motion for summary judgment as well. But yes, the answer is correct.

Miles Cooper: And that’s a very good point, which is there are times that summary judgment or summary adjudication, oftentimes on duty, I think is one of the few that one can do on the plaintiff’s side. But that can come up as a point where it may be worthwhile to help a defendant who believes they’re peripheral and not actually going to get tagged to move forward on that.

Bryce Gray: Absolutely. And I come from a defense background and I can’t think of any instance where I ever saw a motion for summary adjudication filed by a plaintiff, but I think it’s something to think about in cases. And I think there absolutely are instances where it’s ripe for it.

Miles Cooper: We have done them. The first time, and I’m going to give credit where credit is due, or worked for many years with a fabulous paralegal who was in essence an appellate level lawyer, a fellow named Dan Pleasant and in a trucking case where we wanted the policy both from the trailer owner operator as well as the tractor owner operator, it was a tractor driving somebody else’s trailer, not enough insurance for a death case. And Dan came up with the idea that, hey, look, we can summarily adjudicate duty on the trailer and they’ll go from being folks who aren’t worried about it to worrying a lot. And we did. And we won. Just goes to show that you should always be thinking, always be creative in how you approach things.

Bryce Gray: Absolutely.

Miles Cooper: So we tangented off onto proactive bringing summary judgment motions. I want to go back to that question that I asked you, jury instructions. How do you use jury instructions, if at all, when preparing the complaint phase, the initial start of the case?

Bryce Gray: As a practice, I’ve trained myself to always go back to the source material when I’m drafting a complaint or if I’m responding to discovery or filing a motion or whatever it is, so that I know in my own mind and satisfy my own brain that I’ve gone back and looked. And so when I’m drafting a complaint, I’ll start with the jury instructions. I’ll look at what are the material facts, what are the elements of the cause of action? What do I need to establish? And I make sure that I have pled those. One, to overcome any demur or motion to strike, you know, those issues are done because I have pled every, every element that I need to plead is pled. If defense counsel has an issue with it, I’ll invite them to go look at the jury instruction and they will see hey, lookit, it’s, here it is, it’s right here. But it’s that same process if you’re filing motion for summary judgment, because that’s the starting point, because you have to look at what are the elements required for a cause of action and how am I going to establish an absence of material fact as to one of those elements. So when the other side is preparing the motion for summary judgment, they’re looking at the same thing as well, because that’s what they have to establish.

So again, looking at the jury instructions is critical at the beginning, particularly if it’s a cause of action that’s complicated or not the very basic negligence cause of action, because that’ll inform what you plead, what you need to develop in terms of evidence. And how the other side is going to file a motion for summary judgment, and then how you’re going to oppose it.

Miles Cooper: We talked a little bit about expecting that motion for summary judgment. I presume if you’re expecting the motion for summary judgment, you’re making sure that when you do your initial round of discovery, noticing depositions, what have you, you keep that in mind and you keep the timing in mind. Obviously, in all cases, we want to make sure that we move the case, we advance the case. And in particular, where it has facts or pleadings that a summary judgment motion is likely to arrive, you want to make sure that you don’t fall into the lull that sometimes happens with a defense firm that says, Oh, wait, no, that won’t work. Oh, that won’t work. No, this time it won’t work. And then all of a sudden you find yourself with that summary judgment motion and they’ve pushed off all the discovery.

Bryce Gray: It comes up most often in the sense of you’re trying to schedule a mediation in a case and the defense firm has sat on it and you start looking at what’s the timing for their motion for summary judgment and they’ve got to get it out in five days before trial and it needs to be heard, you know, 30 days before trial. And if you fall into that lull and you let that lull persist, then you have suddenly a trap where both sides, really, but on our side, we’re sitting around waiting for the motion for summary judgment so we can oppose it. So it can get denied and then try and resolve the case in that narrow, whatever five day, 10 day period while you’re also preparing for trial because you’re right up against the deadline. And so the way that you proactively deal with that is make sure that you have the documents, whether it’s the deposition testimony, that’s going to undermine any motion. And if you know it’s coming and they say, we don’t want to mediate until we have our motion heard, you can tell them, this is the evidence you’re going to lose. If it’s, you know, medical malpractice case, here’s the declaration from our expert. Don’t waste your time.

Miles Cooper: You raise a very good point though. It’s not just the time crunch, but it’s the client cost crunch of having to be in the thick of expert depositions, which get very costly, very quickly, the exhibit preparation, all of the detail work, and particularly if you’re using demonstrative exhibits that are expensive, like animations, all that starts racking up and it starts eating into the client’s recovery, which then gets in, creates challenges for resolution.

So anything you can do to either tell them how they’re going to lose and don’t bring it, or sometimes we’ve even gone to the point, I don’t like to use the word beg, but beg them to get the damn thing on file and do it early so that we’re not butt up against the trial. Because the last thing we want to do is move the trial because that’s the typical pattern is, oh, we didn’t have time until exactly the right number of days beforehand. And then as it comes close, then the defense says, oh yes, we’re going to lose, we’d like to engage in settlement talks. We just need to move the trial date out. We can agree to do it for just 30 days. And then the judge moves it, you know, six months or a year.

Bryce Gray: Yes, and one of the other ways to address that is to bring it to the attention of the judge, you know, an early case management conference. Are they planning? And you can look at their case management conference statement and depending on the type of case, you’ll know that they’re intending to bring a motion and bring it to the attention. Your Honor, we want to go to mediation. They say they want to go to mediation. We anticipate that they’re going to file a motion for summary judgment. They’re not going to be in a position to resolve the case until that’s heard and adjudicated so, give them a deadline. And the courts seem quick to give deadlines and slow to enforce them. But at least it’s there. On the other hand, when they are asking for continuance because they now want to resolve it, and from our side, we want to keep their feet to the fire and we don’t want to continue it, we at least have that ammunition. This is their problem. This is something they created. They’ve known since the day they were assigned this case that they’re gonna be filing a motion for summary judgment. The fact that they waited a year to do it is not our problem. It’s not cause to commute to trial.

That doesn’t help us in the client control, client cost issue that you started with because unfortunately 60 days out from trial, 90 days out from trial, we’re starting to ramp up. And by that 30 day period, when that motion gets heard, we’re already into the case for our significant costs. And it does, it can impact resolution.

Miles Cooper: And having probably once, twice more than I may have wanted to acknowledge, doing so as a younger lawyer, buying into that movie of containing client costs and agreeing to a short continuance, that’s where you learn that a short continuance is never short continuance. Even if you’re able to contain the costs, it ultimately never benefits the client to agree to that continuance, no matter how kind or what magic words the other side whispers, oh, we just need another two weeks to get the right committee person we’ll be able to get that policy up. Never happens.

Bryce Gray: And here, I agree. And because, you know, that once the continuance, all right, we’ve got a 60 day continuance because everyone’s been jamming to get all the experts, done, get everything done, and they’ve got 50 other cases that need attention. And as soon as that continuance is granted, the attention goes back to everything else that needs to be dealt with. And so you just end up 30 days down the road in the same spot.

Miles Cooper: What about a, a sanction, a 128.7 if I’m getting my code section

Bryce Gray: For a frivolous motion?

Miles Cooper: Yes. Where you have written your letter to demonstrate these are all the facts that make it so that you will not prevail on your summary judgment motion. You should not bring one, and if you do bring one, we will seek 128.7 sanctions. Have you pursued that path ever?

Bryce Gray: I’ve written letters, but I’ve never, I’ve never obtained sanctions. At a prior firm we did get sanctions once. It was beyond the pale of frivolous. And so to me, it seems a little saber rattling for a summary judgment. Obviously there’s going to be situations where it’s appropriate, but.

Miles Cooper: I’m going to take that as a, as a no, it probably isn’t going to get you somewhere.

Bryce Gray: It probably isn’t going to get you somewhere. But maybe if it’s clear, right, that there’s going to be a question of fact, and I think back to the sort of like the medical malpractice context, like where on the defense, you have your expert and you know that the expert’s going to say the standard of care was met. And on the other side, the plaintiff has to have their expert and that expert has to say the standard of care was not met. Triable issue, no summary judgment. If you see the defense gearing up for a summary judgment in a medical malpractice case and you talk to the attorney and you’re like, yes, this is my expert, this is who my expert is. You know who my expert is. If you need a declaration, you need a declaration, we’ll get it for you. LIke, don’t force this. Don’t delay the prosecution of this case for a summary judgment that you know you’re going to lose. And having been on the defense in that position, that’s effective because you know that they have an expert, you know you’re gonna lose the motion. Why are you gonna expend the client’s time and your own time and delay the resolution of the case by filing, I’m not gonna say frivolous motion, but shall we say an unnecessary motion?

Miles Cooper: So the dreaded day or joyous day, depending on how you look at the arrival of that motion for summary judgment, it arrives. And for me, it had a real feeling to it, a texture to it because it would usually arrive in a large package as a weighty document. Things have changed somewhat as e-filing happens and it doesn’t have that same kind of oomph as it drops onto your desk. But it’s a big day. It arrives. What things do you initially do as it arrives to make sure that you’ve got everything or are on the road to getting everything to be able to beat this thing down?

Bryce Gray: And again, I’m speaking to myself from my own experience and as somebody who on the other side has prepared a large number of motions for summary judgment over the years. The first thing I look at is have they got it done procedurally? Is there a separate statement? Do they have the elements? Because I’ve seen a lot of sloppy motions that are gonna perhaps not be lost on procedure, but there’s going to be enough question by the judge when they’re looking at it because the judge knows what’s required. Judge sees more, you know, probably nightmares about how many motions for summary judgment they see. And so again, look at it, is it procedurally adequate is my first thing, that first immediate run through. Second, I’ll run through points and authorities. Is it something that they’ve done, canned, copied and pasted, is that a wrong defense, you know, wrong parties’ names, you know what I mean? Like those sort of simple things like, is this something that they’ve uniquely put a bunch of time into? Or is this something that they just threw against the wall? And that sort of goes into my evaluation of, of the motion. And then from there, I’ll just go to the separate statement and look and see what’s the story because that’s, you know, the separate statement is the story. The way I look at a separate statement, it really, it is. You’re running through what is the story and why are they entitled to summary judgment what’s missing? How am I going to build from this in my own separate statement and tell the story and establish where that material question of fact is.

Miles Cooper: As we talk about building the information, one of the things, and unfortunately, some of the bad behavior that becomes problematic with summary judgment motions, the delaying effort, the filing it on the last possible day, you also see the inability to produce witnesses, the dragging of feet. And so one of the things I always ask the people I’m working with is when we get the discovery out, when we see that there are some people who we need to depose, there’s a declaration from someone in support of the motion to not only call to get those things set up, but every request for it to be in writing. And not because we want to do everything in writing, but because if ultimately the defense fails to produce people, if we have to move to compel, if we have to do a request for a 4378c (h) continuance that we have the documentation for that.

Bryce Gray: Absolutely. And it sort of harkens back to the, you know, is it procedurally adequate? And if it’s sloppy, that usually suggests, not always, but that you’re going to encounter those sort of problems going forward. And you’ll know who defense counsel is and, and, you know, what their reputation is and, and, you know, who they are and your relationship with them. And sometimes it’s the press of business and they’re just busy, but you want to document everything and you want to make it clear that if you do need to seek a continuance, which may mean a continuance of the trial date, you want to make sure that the court knows I’ve done everything I need to do. I’ve done everything I can do. I noticed this deposition to take place 30 days after they got this motion. That’s the, you know, or 15 days or whatever, you know, whatever it is. I’ve been trying your honor for three months to get these documents that I need. I’m trying, you know, and you lay that again, you’re laying the foundation of this is not me taking a laissez faire attitude towards this motion. I’m doing what I need to, I’m, I’m diligent and everything, and the issues here are on opposing counsel.

Miles Cooper: I agree with you. The last thing I think anyone wants is a continuance of the summary judgment motion because it then in that scenario does automatically move the trial date. And at the same time, if it is a defendant where you have to do the motions to compel, where you have to do the things that make it go slower, it’s a slog, but it’s sometimes necessary.
I’m about to go down a rabbit hole of frustration because typically these are not the best lawyers. They just make the job really, really hard, delay justice for the client and do a disservice to their own people. But it’s not out of malice, it’s out of laziness or being overloaded. And sometimes a combination of the two.

Getting to the writing side, I always start with a separate statement. Is that where you start?

Bryce Gray: Yes and no. Obviously I have draft that sort of like, you know, lays out the law, like the initial legal argument section of the motion going either way. Again, going back to the jury instructions, I’ll look at the elements. That’s where I’ll start. So I have them in my mind when I go to the separate statement, and that’s again, where I lay out the story to establish that there is, you know, a question of material fact. So I look at the jury instructions and figure out what I need. And then I start the writing with the separate statement. And I do treat the separate statement as a story because I think that that’s where, you know, you’ve got a, the breadcrumb and all together.

Miles Cooper: And I think that’s definitely something that we have in common in that regard. My practice historically was to take every deposition and take what I would describe as factoids. Go through the start at the beginning of the depo and go all the way to the end and cut and paste each factoid into a, in chronologic order and then move those factoids around. And sometimes you get duplicative factoids from different witnesses. And you delete them.

Bryce Gray: Yeah.

Miles Cooper: Once you went through that whole process, if there are documents that are useful, if there’s an expert that’s necessary, but just that information alone, as you said, would build the story. Many times we would have stories where it’s a complete story, it goes beyond the triable issues of material fact. It goes beyond what the judge really needs in terms of ruling, but it tells a powerful narrative. And that’s where the research attorney and the judge typically look and typically live. And the other piece that I, I started doing as some of these got to 300, 400 factoids, there’s nothing in the rules that says you can or can’t use signposts along the way in the separate statement. So breaking up the factoids every 10 or 15 with a little signpost that says, after the amputation, it took months before Mr. Smith was able to walk again. And then the facts that follow from there, just breaking it up into piece by piece, and those become the subsections in the business

Bryce Gray: Yeah. Telling a persuasive story in the separate statement, I think is also important for the other side because they’re going to read it. They may not read a mediation brief in as much detail, but they’re definitely going to read your separate statement. If for no other reason, looking for objections to the evidence and more likely than not, their carrier is going to be looking at it as well and evaluating it and judging it. You know, the separate statement may be one of those unique documents that the other side is really going to pay attention to.

Miles Cooper: And this is where I think the true gift of the summary judgment motion lives is you become so buried in the case and you understand it so granularly and you start seeing where, Oh wait, I don’t have this piece tightened down as much as I really ought to. And that forces you to go out and get it. The document side makes me think of the issue that sometimes happens in documents. Most of the time, the documents that we’re using are the defendant’s own documents and so from an evidentiary perspective it’s the statement of a party opponent and therefore you can rely upon it. But on occasion you might have a document where you need to establish a business record exception, uh, for a third party document, which is something that if you know you’re going to get the summary, this goes back to knowing that it’s going to come if you ask those questions to lay the business record exception foundation in depo you can put it in your separate statement. You got it. If you didn’t, then you’re going to have to go back and solve the problem another way.

Bryce Gray: Absolutely. And there’s sort of two things you discussed right there. And one is the opposition to the summary judgment in some ways is, is similar to the opposition to a demur in that it focuses you, as the attorney, on where they think your holes are and it gives you the opportunity to fill those holes. And having been a defense attorney by the time I’d filed my third demur to a complaint I’d gotten their complaint in really good shape. Did that help my client? Maybe, maybe not but they knew where the holes were. And the same with the motion for summary judgment. And for us on the plan side, now he gives us a roadmap. It tells us exactly where they’re going to go, where we need to fill the holes and gives us the opportunity, gives us whatever it is, how many days we have to fill those holes, and if we’ve missed something along the way, now we know where it is, and now it’s time to fill that hole and do a very good job of maybe not filling it, making a wall, whatever the analogy is. And then the other thing that you talked about is laying the foundation for the records, the business record exception. And I think that goes back to being aware at the beginning, at the outset, this is a case that there’s going to be summary judgment. And so, you know, at each deposition, each step along the way, I need to lay the foundation for the business record exception. I need to get this testimony. What do I need from this witness? Not only for my case and to win a trial, but to get over the hump for summary judgment. And that should be in the back of your mind. In each one of these cases where we know there’s a summary judgment coming,

Miles Cooper: You remind me of one of my favorite stories.
I don’t remember who the lawyer was who said this, but there was an article I read a long time ago about a lawyer and with every document, every photograph, every witness, that lawyer would take that and imagine that that was the only piece of evidence the lawyer had in the case. And if that lawyer was going to have to win the case with that one thing, what are all the ways that the lawyer could do it with just that one piece?

And if you approach your summary judgment opposition the same way with each witness, each document, and things like reading the disclaimers and reading the fine print and reading the things that our eyes just have been trained to kind of gloss over; to find that magic there, because oftentimes there are things that if you don’t put yourself in the right mindset, you don’t see.

Bryce Gray: Right. And it’s understanding what it is. And I like that. I’ve never heard that, but it makes sense. You know, if you’ve got that piece of paper to win the case you’re gonna pay attention to every word on that page, you’re going to see, can I use this word? What’s it going to get me? And you start looking at something like that and I spent a lot of time defending doctors and depositions in, where there were treaters, so not parties. And you could always tell when you had a seasoned trial attorney, they would come in, lay the foundation for the business record exception. In out done 30 minutes. And you contrast that with a more junior attorney or someone who doesn’t have that trial experience and you sort of see their questioning style. And I have a clear recollect of a deposition where I was defending the doctor. And the questioning attorney was a very seasoned trial attorney and the other attorney was not. And the doctor and I walked out of the deposition, the attorneys left. And as always, we had a discussion about the deposition and we looked at each other and we’re like, we know who the trial attorney is.

I had no objections to any of the questions that the trial attorney asked. Like they were all, it was, he got exactly what he needed very quickly. Done. And the other attorney on the other side was, you know, left hanging and wondering what he was doing.

Miles Cooper: Get in, get out and get on with your life.

Bryce Gray: Right.

Miles Cooper: Yea. Going back to that separate statement.

One of my favorite things to do once I had a draft and all of this requires working backward from your deadline. And while it’s getting ahead of ourselves a little bit, having a deadline of a week before it’s due to be done with it so that if a computer fails, if because those separate statements are very complicated documents that sometimes those crash and have to be restructured. You run into filing issues with documents that are that large as far as the file size is concerned, so building the timeline back from usually a week before it’s due for filing to build in when all the drafts are going to need to be done and reviewed, I like to have a draft reviewed by somebody completely unrelated to the case. And the reason I like that is I like someone who can go through and tell me whether the story flows in terms of whether they get it. And the other piece is having all of those factoids, uh, site checked by someone for two things. One, is it actually the correct site? Cause sometimes when you’re cutting and pasting it, it doesn’t get right. And two, are you trying to stretch a double quilt across a queen size bed? Because the last thing you want in terms of your credibility is to be seen as stretching.

Bryce Gray: Absolutely. Absolutely. And unpacking that a little bit. I’m someone who, and every legal assistant that I’ve ever worked with will know that I’m the one who’s stapling that or three-hole punching or whatever that motion, stuffing in envelopes right there with the legal assistant.

I don’t care what time it is. I don’t go until I know that it’s going out the door and it’s done.

Miles Cooper: I have to ask, is that because you are a lead from the front lawyer? A control freak or both?

Bryce Gray: Lead from the front. I have seen over my practice enough attorneys who send a motion that needs to be filed today to their legal assistant at 1:30 and it needs to be to file and serve or whomever at 3:30 and it’s, that’s not a recipe for success.

Miles Cooper: It’s a recipe for making lots of people miserable.

Bryce Gray: Exactly. It’s not from a control position. We’re doing this. This is us. We’re doing this together. But working backward, I agree, you need to have a timeline, and I think a week, having everything done a week in advance, that doesn’t always happen, but it’s definitely, you need to have it done two, three, four days, I mean, depends on where the weekend lies in there.You need to have it done, in the can completely, so that you can deal with the filing issues. So you can deal with whatever it needs to be because it was a motion summary judgment, you’re going to win or lose the case. You know, you don’t get your opposition in on time – will the court allow late? Maybe they will, maybe they won’t. Depends on, you know, but again, you know, you don’t want to be in that position. You want to have it done and filed and ready to go. And working backwards to stretch out the timeline on that and make sure that you get it done. Like for me, I like to write it, go do something else for a couple days, and then come back to it. Go work on another case. Come back with fresh eyes because I can only edit something so many times before I’m not seeing anything. I got the wrong party’s name and you need that fresh eyes. But the other thing that you mentioned is having somebody fresh and who can go back and look at the citations and make sure they’re correct, make sure the exhibits are right, make sure what you say is what’s actually said, because you can’t – it has to be. You know what I mean? That’s your credibility. And as we know, as attorneys, it’s our credibility that’s on the line. And I will say that probably in every motion that I’ve written, at some point in that process come across either wrong citation, got the wrong exhibit attached, or my memory of what that witness said is not exactly what they said. And you know, it, it, it’s easy to go back and, okay, well, oh, they said it over here or someone else said it or whatever. You can fix that. But you don’t want to be a position where the research attorney or the court is like, that’s not what they said. And because you’ve lost at that point,

Miles Cooper: As soon as the research attorney finds that you have been potentially misleading in one thing, you are now misleading in all things.

Bryce Gray: Yup. So you’re not coming back.

Miles Cooper: Yea. I think we’ve gotten through the separate statement. Now we get to the incorporation into the points and authorities. How do you tackle that?

Bryce Gray: It depends. Frequently I cut and paste the separate statement out and put it in a paragraph format and then work backwards from there or, you know, work forwards from there and turn it into a narrative. But, you know, again, from my perspective, the recitation of the facts or whatever it is that you’re filling in from the separate statement should track not one to one, but pretty close. I want someone reading my motion, the points and authorities, when they get to undisputed material fact number one, and it says, Joe Smith did this, I want them to go look at the separate statement, and say, Joe Smith did this, see deposition, blah, blah, blah, where he admitted, you know. And by the time they get to the tenth one they’re not going back to the separate statement because they know, they’ll go back and they’ll check, and if it’s something key, they’re going to go look. But you know what I mean? You want to have that credibility, it gets back to the credibility. And so working, you got your separate statement, you got your evidence. Take it over, copy it in, clean it up so it reads as a narrative as opposed to a separate statement. But that’s how I work through it. And I’ve done it the other way. And the other way it never works as well as because you have the evidence, you’ve actually looked at what the deposition testimony is when you’re doing this type of statement. So that’s why it makes more sense to go.

Miles Cooper: From a page limit perspective, I completely agree with how you’re approaching it. There’s no page limit on the separate statement. There is a page limit on the P’s and A’s, the points and authorities. And one of the things we’ll sometimes do in the storytelling side is our client’s injuries may not have a whole lot of significance. In fact, rarely have any significance to the ruling on summary judgment. So we may have 30, 40, 50 factoids about what our client went through. And then as we edit it down for space, Mr. Smith suffered catastrophic injuries, including the loss of a limb that required four months at a rehabilitation facility. That may be 40 facts, but we’ve boiled it down to one sentence and I know they’ll go and read the full separate statement, but that then condenses for space, allows the judge and research attorney to focus on the triable issues of material fact, but also make sure that the storytelling component is there.

Bryce Gray: Right. I like that. The other thing I was gonna say is from the perspective of somebody who has prepared a lot of them, a lot of motion summary judgment. If you have more than 30 or 40 undisputed material facts, there’s gonna be a dispute about at least one of them, and so it’s condensing those down to as few as possible. Because, you know, if there’s 150 undisputed material facts, like clearly there’s a great dispute about some of them.

Miles Cooper: So. Right.

Bryce Gray: Right.

Miles Cooper: Right. The other thing that I have sometimes found useful in the P’s and A’s is a table where I’ve got the elements, again from the jury instruction, and then I show how, this is the triable issue of material fact or these are the triable issues of material fact related to that one element so that there’s a clear match up and I will include that in the proposed order so it is easy for the judge to say, yes, everything that was said in this thing is true and this is my justification and this is my ruling.

Bryce Gray: I’ve never used a table, but I like it. Again, it’s the busy research attorney and if you’ve established your credibility, they know what you’re saying is right and they know that the attachments are all there and records there and everything and they can go look – here’s the chart, dit dit,dit, done! I mean, it’s not that easy, but you know what I mean, but, but in a sense, it kind of is like they’ve made their mind up and then now they just have to go and make sure that they’re right and make it easy for them.

Miles Cooper: This is a little bit of a tangent, but relevant. There’s a great, I would call a graphic designer, Edward Tufte is his name. He used to come around and give presentations back when people saw each other in real life and he’s got, I think, four books the last time I saw, but they’re all in visual displays of information. And that’s where some of these ideas of taking complex ideas and boiling them down into ways that they can be seen and processed quickly are very important.

Bryce Gray: It’s conveying the information and how can you best convey, whatever “best” means, as attorneys, what we do is tell stories and so how do we convey that story and if we can do better or more effectively or in conjunction with a table or whatever, I’m all for it.

Miles Cooper: Now the final push, getting it pulled together and ready to get out the door. And we started to talk about this in terms of the timeline of making sure it’s done a week beforehand. Tell me a little bit about your process in that final, final push and making sure you are a help and not a hindrance to the people who know better in terms of the filing process

Bryce Gray: To some extent, I guess I maybe I should revise my prior statement about being a little bit of a control freak. I do go through and I will match up the points and authorities with the separate statement to make sure everything matches and I will go through the separate statement and I’ll make sure that we have all the right exhibits, they’re numbered, we have all the page numbers from the deposition transcripts, and we have all the right records, everything, because I’m signing it with my name on it, and it’s my credibility, and I have lots of faith and trust in those who were helping me, but I feel compelled to go through it, so I do.

Miles Cooper: I would call that QA, a quality assurance piece that at least two sets of eyes, including one that is fresh, have gone through to spot check and make sure that everything is what it says it is and is where it is supposed to be.

Bryce Gray: Right. And to be clear, I’ll do that. So if I’ve finished the points and authorities and the separate statement a week prior, I’ll do that final check the day before I’m going to give it to whomever is going to finalize it and actually file it. Like I have some fresh perspective on, I’ve gone and done something else. So I’m coming back to it without that all in my immediate short term memory. So I am looking at it. And I agree, ideally someone should be going through it who’s not me or who, not the person who wrote it, but so I’ll get it. I’ll make sure that everything’s right, I’ll make sure that all of the exhibits are right. I’ll make sure the table of authorities is, and then I’ll pass it on to the person who’s actually going to finalize it and file it. And I want to give them enough time so that they’re not rushed or stressed. That really eliminates sort of the panicked, wait a second, I sent it to the wrong place. Or the clerk’s office is closed, or, you know, I mean, I think we’ve all experienced some variation of that. It’s somewhere.

Miles Cooper: I can’t upload a file this large.

Bryce Gray: Right. Exactly. It’s not fair in my mind to force, you know, my lack of planning to be someone else’s emergency.

Miles Cooper: I will point out beyond the file size issue and at the risk of sounding too old timey to the extent that there are any counties out there that still require a paper filing of this, that having run afoul of the two-inch rule once before, it is permanently branded into my head.

We were last minute, last day, you know, 4:29 PM at the clerk’s counter when they close at 4 30 and our separately bound evidence was three and a half inches thick, and she whipped out a ruler. Yeah. She was kind enough to give us a second set of two prong and a piece of paper to write a crayon caption and we filed it. But just a reminder, there are some funky rules out there. That’s not a rule that everyone should be aware of from the perspective of paper filing doesn’t happen as often anymore, but that’s why you have the extra time because there’s always something that you don’t consider and sometimes it gets kicked back on a filing issue.

Bryce Gray: And the other part of that is why you always have a smile on your face when you get to the clerk because if you don’t you may get the ruler and not the paper and the extra binder clip.

Miles Cooper: This is indeed true. We could go on and on on opposing summary judgment because there is so much to talk about. The theme, the notion that having a summary judgment motion as a gift to help you be as prepared as possible to put the other side back on their heels while you advance on your toes and then demonstrate to them just how ready you are for trial instead of receiving that thunk or email ping with a sense of dread but to look at it with a sense of optimism and this will be great.

Bryce Gray: Agreed. And the one thing I will add, and I don’t think we’ve touched on, is there are times when you’re gonna get that motion and you’re gonna say to yourself, they’re right. And maybe you do have somebody who shouldn’t be in the case.

You know, maybe that’s the time to start talking about cutting them loose. It’s rare, but I have seen, I’ve seen situations where it’s like, you know what? That’s a perspective. I haven’t looked at this. Maybe I am going to lose on this. You know, do I fight it? That’s a discussion you have with your client and with others around you so you’re not the only person analyzing it. But I think that summary judgment, it’s a good tool for everybody involved. And I know that there’s lots of practitioners who hate receiving them, but as the point of our discussion here today, they’re useful in many regards.

Miles Cooper: They are indeed. And you are absolutely right, keeping your mind open to the notion that you don’t just fight for the sake of fighting, but you fight where it is meaningful and one stands a reasonable chance of prevailing. Because you don’t want to drag your client through the misery of a – if you know there are no legal grounds, no triable issues with material fact, you don’t want to drag your client through that. Wobblers? Yes. Losers? No. Hopefully though, the loser has been discovered earlier on in the process, a demur motion to strike.

Bryce Gray: Before you filed.

Miles Cooper: Yes.

Bryce Gray: It shouldn’t be a surprise. You should have known when you’re filing a complaint.

Miles Cooper: Well, Bryce, anything else you think we should know or cover on summary judgment?

Bryce Gray: No, that I can think of. I think it was, it was a great discussion. Thank you.

Miles Cooper: It was, it was a lot of fun. Thank you. And thank you, listeners, for listening today. Please email us at podcast at coopers dot law with questions, comments, feedback, and any suggestions you have as you have faced opposing summary judgment.

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To all of you doing justice out there, happy hunting.