The Legal Advocate

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MOTIONS PRACTICE: Offer Alternatives to the Court

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This month NITA’s faculty will be talking about motions. Below, the Honorable Christina Habas gives us a look at motions from behind the bench and how you can help the court while next week Judge McGahey advises you with three simple rules to follow when filing motions.  Next we will hear from NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University. Professor Schepard will discuss five guidelines for answering hard questions at oral argument on motions. Later, we will hear from other NITA faculty and their best practices when filing motions in NITA’s April content series.

Before I took the bench in 2004, it never occurred to me that motions practice was no more complicated than making a decision between two conflicting positions. Once I was tasked with resolving motions myself, I learned that the work of a trial judge involves a much more complicated and careful balancing act.

When presenting or opposing a motion, the wise practitioner will have empathy for the judge. It is a rare legal issue that clearly identifies only one winning position. Instead, the court must always meticulously consider several factors, and more often than not those factors directly conflict with one another.

Perhaps the most important of those factors is the mandate that courts are expected to resolve disputes on their merits; procedural shortcuts are generally frowned upon. Take the case of a violation of a court-ordered witness sequestration during a trial. What may seem an easy determination (you violate my order, I strike your witness) is not as simple as it appears. Instead, the court is required to balance the rights of all parties to a fair trial and their interests to fully litigate their dispute against what may be a technical violation of a court order. Simply excluding evidence – any evidence – takes away important information for the jury to consider, and may result in a reversal on appeal if the appellate court deems the punishment too harsh to fit the “crime.” The court must instead balance the higher consideration that disputes are resolved on their merits, and weigh that against the violation of the order. The moving lawyer may make a record that striking the witness is the best option to address the violation, but may provide the alternative of giving the jury an instruction that outlines the violation, and allowing the jury to take that into consideration in reaching their verdict.

Wise practitioners will consider offering a back-up remedy to the court hearing their motion. Make the argument for the most severe penalty to which you may be entitled, but then offer the court an alternative that may not present the same problems during appellate review. The court will appreciate that you understand what must be balanced, and many times the court will adopt your alternative as the most reasonable approach.

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written by guest blogger Hon. Christina Habas

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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