A LITIGATOR AND FORMER JUDICIAL ATTORNEY'S PERSPECTIVE ON EFFECTIVE MOTION PRACTICE
Motions are extremely important tools in any litigator's practice. Clients often ask, "Why can't we do (insert any number of scenarios)?" Fulfilling your client's request may require filing a motion. Motions allow parties to approach the court directly and ask a judge to grant specific relief. Used effectively, motions can move the case in a direction that favors your client. No matter what types of clients they represent, litigators should have a handle on effective motion writing and oral argument.
Advocacy during motion practice can be more challenging than trial or other court appearances. You have limited time to persuade a judge who may be distracted by a lengthy motion call, an interrupted trial, or other court business. Here are some tips you should consider before writing and arguing your next motion.
OUTLINES AND INTRODUCTIONS
Start with an outline. Just as builders don't start construction without a set of plans, you should not draft a motion without first outlining what you want to convey to the judge.
It's also critical to have a strong introduction, so be sure to keep that in mind once you start drafting your outline. Use the introduction to succinctly communicate exactly what you're asking for and why your relief should be granted. It will frame the reader's comprehension of your brief and serve as a good reminder when the judge skims it at the start of the motion hearing. Depending on the complexity of your motion, the introduction should be no longer than two to three paragraphs. If the judge doesn't know what you want and why your relief should be granted after reading your introduction, you've already lost.
KEEP YOUR BRIEF ... BRIEF
No matter how simple the issue may seem, you must write a brief. Does the judge know the court rules that apply to adjournments and discovery disputes? Yes. Judges also know the governing legal principles associated with a request to change domicile if you're in family court, the application of the open and obvious doctrine in a premises liability claim, or the standards for granting a temporary restraining order (TRO) in business court. But it is up to you as lawyer and advocate to analyze the law — on procedural and substantive issues — and explain how it applies to the facts of your particular case. In other words, it is not sufficient simply to refer to a court rule or case law without any analysis, or worse, without citing any supporting authority whatsoever. Doing so may be fatal to your motion and may set a bad tone going forward. It is not up to the court to find authority to support your arguments; multiple appellate decisions say just that. Don't put yourself in a position where you must explain to a client that his or her motion was denied before you stepped foot into the courthouse because you didn't properly prepare a brief.
And remember: Your brief should be just that — brief. Judges are seasoned and intelligent. They are also busy. Don't take five pages to say what could have been said in two paragraphs. A brief should also be concise. Be strategic and focus only on the facts and law that pertain to your request. Don't meander. Lead with strength — not hyperbole or rambling sentences about things that have no bearing on what's before the court. Presenting arguments in a simple, straightforward manner is an art that is worth trying to master. "Less is more" is an effective approach when it comes to writing briefs.
This goes without saying, right? Being prepared goes beyond reading your file in advance of the hearing. First and foremost, you need to know your judge. It takes just a few minutes to read a judge's online protocol. Whether you do so may make or break your courtroom experience. Most judges want a hard copy of dispositive or other substantive motions. Take the time to organize (e.g., tabbing exhibits, neatly binding everything together, etc.) the copy you send to the court. You should also highlight key portions of deposition testimony, unpublished cases, and other exhibits. Assume that what you provide the court will end up in the hands of the judge and the judge's staff attorney. The easier your submission is to read and navigate, the happier your reader will be.
Now, your hearing is coming up and it's time to prepare for oral argument. Let's circle back to the briefing issue for a moment. Don't save your best argument for oral argument because you might not get that opportunity. Judges can, and often do, dispense with oral argument. So, if you have a brilliant argument or point that needs to be made, the time to do that is in your written brief. Don't try to be clever by blindsiding your opposing counsel with a surprise argument at the hearing; not only is this tactic contrary to general briefing principles, but you might end up being the one blindsided when the judge dispenses with oral argument (or takes offense at your gamesmanship).
Assume the judge has read your brief and be prepared to answer questions. This includes knowing the facts, the law, your argument, and what you want (all of which, of course, should have been set forth in the introduction section of your brief ). More often than not, judges will ask about scheduling order dates and other upcoming events in your case; you should know this information no matter what You should also expect the unexpected. Lawyers typically spend hours reading briefs and preparing a beautiful oral argument to dazzle the judge, opposing counsel, and the audience. This generally entails some sort of road map of how your argument will proceed. However, let's assume you have three key issues that will be addressed in a certain order. You may only get the opportunity to talk about the second issue, without having addressed the first. Even worse, the judge may only ask you to touch on the weakest points of your argument without having an opportunity to argue your best. This requires quick thinking and the ability to address any part of your argument out of order, or even out of context. So, prepare an outline, not a script.
It's your time to advocate. At the podium, have confidence in your arguments, or don't make them. You must believe in your client and your position. If you don't, how do you expect the judge to believe in you? Even if you have the right amount of confidence, a judge may pose a question with a tone of skepticism. Be respectful, but stand your ground. A judge may have concerns about the relief you're seeking or the potential consequences of granting such relief. Take advantage of this opportunity to correct misunderstandings or put any concerns to rest.
In sum, there is no "one size fits all" approach to motion writing and oral argument. You have to find what you are comfortable with, what works best for you, and what best suits the judge. And no matter what approach you use, the following should always be part of your practice: Be on time, be prepared, and be courteous to the court staff, judge, and opposing counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.