The concise statement of facts is perhaps the trickiest part of SJ practice in Delaware. Given the limited space available in the briefs, it's often the only place where a party has room to lay out the story behind their motion and the case as a whole.
The danger, of course, is that you'll put in some unnecessary fact which the other party may dispute. While this might seem like a minor worry, Judge Connolly has denied many SJ motions on this basis alone.
Last week Judge Williams took the same tack in Victaulic Company v. ASC Engineered Solutions, LLC, C.A. No. 20-887-GBW (D. Del. Dec. 6, 2022) (Mem. Order), a case which he inherited from Judge Connolly this September when SJ briefing was already complete. The motion itself centered on a rather arcane claim construction dispute that I shan't recount, but it included this interesting tidbit on the concise statement of facts:
ASC's dispute may be immaterial to whether the Accused Products infringe the radius of
curvature limitation. As long as one "outer surface" (exclusive of the circumferential groove) on each pipe element of the Accused Products has a radius of curvature that is less than the radius of curvature of the arcuate surfaces of the pipe coupling segments, the Accused Products would meet the radius of curvature limitation. However, according to Victaulic, whether "there is a circumferential groove (3b, 4b) in said outer surfaces 3c, 4c[,]" is one of "the material facts that are absolutely necessary" for the Court to determine the Motion, the Court will, thus, treat the fact as material.
Id. at 11-12 (cleaned up)
So there you have it—keep your concise statements . . . well . . . concise.
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