The Legal Advocate

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MOTIONS: THREE SIMPLE RULES

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This month, NITA’s faculty will be talking about motions. Last week we heard from the Honorable Christina Habas. She gave us the advice on how to Offer Alternatives to the Court. Next, we heard from NITA faculty Andrew Schepard, the Max Schmertz Distinguished Professor of Law for Maurice A. Deane School of Law at Hofstra University. Professor Schepard discussed five guidelines for answering hard questions at oral argument on motions. Up now is Judge McGahey with with three simple rules to follow when filing motions. And still to come later this month are other NITA faculty and their best practices when filing motions in NITA’s April content series.

Since I’m a trial court judge, my focus in these blog posts will be on motions practice from that perspective.  This post is about three simple rules that I outline at the beginning of my presentations on motions practice. These rules apply to both the written motions that you file and (if you’re lucky enough to get it) any oral argument on those motions.

Rule Number 1: The Ball Should Always Move Forward.  I’ve never understood why so many lawyers want to spend so much time complaining about all the awful things their opponent has done in this case. Please don’t spend time whining about how mistreated you’ve been! Unless the issue involves very specific (and very egregious) conduct, complaining about it doesn’t help me make a decision. And it really doesn’t help me if the fight is about what one lawyer has done to another lawyer.  This case is about your client; it’s not (as we were told as adolescents) about you.  Tell me what I me what I need to fix and why; take your ego out of this, please.

Rule Number 2: Know Your Audience.  I’ll be expanding on this in future posts, but here I’ll just remind you to have some idea who the judge is on your case.  What’s her reputation for dealing with the kind of motion you’re filing? Does he more often rule on the pleadings or does he allow oral argument?  If she or he allows argument, what’s likely to help you get that if you need it? How quickly can you expect a ruling?  Will it be written or oral? Are you asking for something well-supported by case law or are you trying to make new law?  Make sure you understand what the judge’s docket is like: crowded? mixed criminal and civil, or civil and domestic, or…..? If you practice in a jurisdiction where one judge handle the motions and another handles the trial, how does that affect you?

Rule Number 3: Don’t Be Afraid to Ask for Help.  This flows out of Rule Number 2, and is particularly aimed at younger lawyers.  Motions practice is frequently one of the ways we cut our lawyer teeth, both in the stuff we write and when we get to stand up in court and talk.  There’s nothing wrong with asking someone with more experience for their advice.  Certainly a partner who gave you an assignment is likely to have distinct ideas on what should happen; my partner and mentor, the late Bill DeMoulin, always told us: “The only dumb question you can ask is the question you ask too late.” But remember you can get help from other folks, too.  Ask your legal assistant if what you’ve written makes sense, if it sounds snarky, if it comes off as high-handed. If your significant other or friends will tolerate it, practice your delivery with them.  Those close to you know you better than anyone else and are more likely to catch distracting gestures or unpersuasive language. Once again, don’t let your ego overcome your common sense. As Jerry Facher (played by Robert Duvall) said in A Civil Action: “Now the single greatest liability a lawyer can have is pride. Pride… Pride has lost more cases than lousy evidence, idiot witnesses and a hanging judge all put together. There is absolutely no place in a courtroom for pride.”

I’ll see you in court…….

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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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