Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal.
Rule 43.04 of the Tennessee Rules of Civil Procedure tells lawyers how to create a proper record when filing a motion on a matter to be considered by the court. The rule is well-written and self-explanatory.
When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:
(1) All or part of any deposition taken pursuant to Rules 30 or 31 shall be accompanied by an original or photocopy of the certification of the officer taking the deposition.
(2) All or part of any interrogatory answers or objections thereto obtained pursuant to Rule 33 and all or part of any response or objection to a Rule 36 request for admission shall be accompanied by the original signature of the responding party or attorney, or a photocopy thereof.
(3) Any document obtained pursuant to a Rule 34 request for production of documents shall be accompanied by a copy of the request for production and either a copy of the response thereto or a certificate of authenticity from the party or attorney presenting the document to the court.
The submitting party shall also include the title page of the foregoing documents showing the complete caption for the action as required by Rule 10.01. The submission shall include all relevant definitions provided in the original document.
In ruling on any motion, the court shall consider only those documents and other materials that have been filed with the court as provided herein or that have been presented to the court in accordance with Rules 43.01 or 43.02, or matters that have been stipulated by the parties.
How do you make such a filing? Title it "Plaintiff’s Notice of Filing In Opposition to Defendant Holy Grail Insurance Company’s Motion for Summary Judgment." The opening sentence should read as follows: " Plaintiff, Snow White, pursuant to Rule 43 of the Tennessee Rules of Civil Procedure, submits the following documents in opposition to the Defendant Queen’s Motion for Summary Judgment." Then, list and describe each document and attach the documents to the Notice. Here is an example:
- Affidavit of Snow White. (Exhibit A)
- Affidavit of Grumpy. (Exhibit B).
- Selected excerpts of the April 1, 2009 Deposition of the Queen. (Exhibit C)
- Statement of Counsel Certifying Authenticity of Documents Produced by Queen and Documents. (Exhibit D).
You will save yourself a lot of heartache if each page of each exhibit is marked seperately in the lower right hand corner like this: Exhibit A, 1 of 4, 2 of 4, 3 of 4, 4 of 4, Exhibit B 1 of 20, 2 of 20 etc. In that way you will know exactly what you marked as an exhibit and can be sure you have a complete set of what you filed.
Finally, file the Notice and exhibits with the Clerk of Court.
One last note. You no longer have to file a complete copy of the deposition to use a portion of the deposition in support of or opposition to a motion. Instead, follow subsection (3) of the rule.