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I write the statement of facts last. Aside from general background and the procedural history, the statement of facts should focus on the most important facts used in the argument. So I write the law and analysis section first and tailor the statement around that.
I clerked for a civil judge and I wish more attorneys took this approach. It was so frustrating when they submitted 100+ “material facts” that had nothing to do with the motion
I pull the law first and then organize the point headings for the argument section. Then go back and do a statement of fact so it lines up with the language of the law. Then write the argument.
I haven’t done an MSJ response in like 6 months and your question sent a shiver down my spine.
I just don't respond. It's the most straightforward approach.
How can you do the breif without the statement of facts? Don’t understand how that’s possible
I know the facts, but the statement goes last. You never know how the law is going to affect your argument and you’ll just end up rewriting it if you do it first.
1. Legal Outline
2. Factual Outline
3. Draft full SOF based on legal outline
4. Full legal analysis
I do a rough statement of facts first, to figure out if Im missing any needed affidavits/certifications or documents. You can work late getting a brief done, but you can’t guarantee a client will get you this type of stuff quickly at the last minute
It depends on what tactic I am taking in my response. If I want to argue that OC hasn’t met their burden, I do the brief first. If I want to say there are too many fact issues, I draft the facts first.
I draft the law first but the end product shows the facts organized before the law if that’s what you mean…
I do the argument first then go back and make sure I have the facts to back it up.