Motions--put facts (and exhibits) in a declaration

Here is a tip. 

Motions should not have facts that have no evidentiary support.  

or 

Motions must have facts with evidentiary support.

Usually facts should be in a declaration from the client.  Facts should not be stated by the attorney in the body of a motion with no support.  Ipse dixit does not apply to the attorney who files the motion. Ipse dixit is an unsupported statement that rests solely on the authority of the individual who makes it.

Therefore, put facts in a declaration and only put the facts in the motion that are supported by an attached declaration.  Authenticate exhibits in the declaration i.e., all exhibits are exhibits to the declaration. Have statements in the declaration that would be admissible evidence in court.  Balance the number of facts in a declaration against the rule that you should have your client say as few things in a declaration as are absolutely necessary because later, when your client’s deposition is taken, previous statements in affidavits and declarations can be inconsistent with trial theories or subsequently developed facts and can be use to impeach your client if your client takes a different position.

EDCR 2.21 (8^th jud dist ct rules)  states:

  Rule2.21.Affidavits on motions.

      (a)Factual contentions involved in any pretrial or post-trial motion must be initially presented and heard upon affidavits, unsworn declarations under penalty of perjury, depositions, answers to interrogatories, and admissions on file. Oral testimony will not be received at the hearing, except upon the stipulation of parties and with the approval of the court, but the court may set the matter for a hearing at a time in the future and require or allow oral examination of the affiants/declarants to resolve factual issues shown by the affidavits/declarations to be in dispute. This provision does not apply to an application for a preliminary injunction pursuant to N.R.C.P. 65(a).

      (b)Each affidavit/declaration shall identify the affiant/declarant, the party on whose behalf it is submitted, and the motion or application to which it pertains and must be served and filed with the motion, opposition, or reply to which it relates.

      (c)Affidavits/declarations must contain only factual, evidentiary matter, conform with the requirements of N.R.C.P. 56(e), and avoid mere general conclusions or argument. Affidavits/declarations substantially defective in these respects may be stricken, wholly or in part.

NRCP Rule 56e states

      (e) Form of Affidavits; Further Testimony; Defense Required.  Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. 

How to Have Fun Summarizing a Deposition

Use Keywords When Summarizing a Deposition.  Just kidding.  Summarizing a deposition is not fun.  However, I don't know how someone can summarize a deposition without a list of keywords.  Keywords are the elements of a cause of action, background, credibility, etc. You can use a table to enter your summary or you can insert a keyword at the beginning of each statement in the deposition that you want summarized.  This groups all facts relating to each element of your case. These two methods are explained below.

Using Paragraphs to Sort Keywords in Word 2007.  Here is a typical deposition summary.  The keyword is first.  The summary is next.  Then the page and line numbers are in parentheses.

Entity,  Bob is the president of four corporations:  Noma Group, Noma Properties, Noma Management, and Noma Construction and Development (1/19).

Agency.  Ed Toma was President before (3/14).

Assent.  Bob never saw the Joint Check Agreement before (5/14).

Agency.  The Joint Check Agreement "appears to be" signed by Mr. Toma's secretary, Sherry (9/24).

Agency.  Noma Construction and Development was the operating entity that ordinarily signed these kind of joint check agreements (10/23).

Consideration.  Bob doesn't remember if Plaintiff's equipment went into Defendant's project (11/23).

Assent.  Bob has no way of knowing if Phase II meant the 2nd cul de sac (12/16).

Select all, then Home, then paragraph then sort then makes sure the box says “sort by paragraph,” Text and Ascending—then click ok

You will get this

Agency.  Ed Toma was President before (3/14).

Agency.  Noma Construction and Development was the operating entity that ordinarily signed these kind of joint check agreements (10/23).

Agency.  The Joint Check Agreement "appears to be" signed by Mr. Toma's secretary, Sherry (9/24).

Assent.  Bob has no way of knowing if Phase II meant the 2nd cul de sac (12/16).

Assent.  Bob never saw the Joint Check Agreement before (5/14).

Consideration.  Bob doesn't remember if Plaintiff's equipment went into Defendant's project (11/23).

Entity,  Bob is the president of four corporations:  Noma Group, Noma Properties, Noma Management, and Noma Construction and Development (1/19).

i.               Using a 3-column Table to Sort Keywords in Word 2007.  This doesn’t take special software.  You can use a 3-column table in Word or you can just put the keyword as the first word in a paragraph and then sort the paragraphs alphabetically.

Then, highlight the table and in Word 2007 click Layout

Then click A-->Z Sort