Tip No. 22 Be certain of your facts when arguing a motion…

and use extreme caution when misrepresenting the facts in your argument

 A motion for summary judgment was decided in favor of plaintiff and the tentative ruling was contested by the defendant. At oral argument counsel for plaintiff sought to establish the dangerous characteristic of the location where the plaintiff was injured by asserting that the defendant was aware of a prior, similar incident that had occurred at the same location and which had also caused serious injury.

In fact, the prior incident to which plaintiff’s attorney referred had occurred several years earlier and at a location at some distance from the location of the subject accident, albeit in the same shopping mall. That misrepresentation was revealed by the incident reports produced at the hearing by the defense. The misrepresentation suggested that other assertions in the plaintiff’s brief might have been less than strictly accurate. Perhaps that was what persuaded the judge to take the decision under advisement – rather than affirm the tentative ruling.