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January 01, 2014

Sidebar: Winning a Motion

Motions have become more important due to the increasing number of cases that settle.Here are some tips for handling them.

Kenneth P. Nolan

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Of course you were meant for fame, for iPhones to flash whenever you sashayed into a room, for your distinctive puss to be known by all, just like LeBron, Beyoncé, Kanye, or some other celeb who only needs one name. You would achieve this notoriety not through the usual manner—cavorting with prostitutes as Eliot Spitzer did, sexting again and again as Anthony Weiner did, or professing to hike the Appalachian Trail when you were canoodling with your mistress in Argentina as Mark Sanford did.

No, your renown would be earned through principled diligence, ingenious strategy, and artful oratory. Through your skill, the greedy insider trader would walk; the reckless oil executives who trashed pristine beaches would never look through prison bars. You would win them all—representing the downtrodden, the helpless, even the infamous 1 percent.

But let’s be real. Cases settle, crooked white-collars cop a plea, and the days of trial—all or nothing—are mostly long gone. Which makes pretrial strategy and its execution most critical, for your litigation plan should include not only trial but also the inevitable mediation. So if you crave fame, become a narcissistic politician, or toss a Cosmo in the face of a Real Housewife at some garish Jersey joint. For the litigator’s life is one of quiet maneuvers, advocacy in empty courtrooms, and resolution in sterile conference rooms with the inevitable agreement of omerta as to the details of the settlement.

Just as you want to know the predilections of the trial judge, you also need to consider when, where, and how the mediation occurs. For it will, sometimes before a deposition is taken, sometimes immediately before jury selection. So you must position your client as best possible so the mediator will gaze favorably on your argument and pressure the other side to pay another nickel, hundred grand, million or two. In this new world, depositions become more central, but so do motions—discovery, summary judgment, jurisdictional, evidentiary, in limine. . . . The number and variety of motions that appear in nearly every case remind me of Bubba’s litany of shrimp dishes in Forrest Gump.

Whether you have a simple slip-and-fall or a mutlibillion contract dispute, the outcome of motion practice will either devalue your case or provide you with the muscle to make your adversary squirm. A summary judgment decision knocking out a substantial portion of your damages can cause you to cancel that villa in Tuscany. A forum non conveniens order transferring your case from Miami to Bogota makes your $10 million demand laughable. An evidentiary ruling that the incriminating emails could be paraded before the jury is enough to make even the most obstinate chief executive officer (CEO) beg for mercy. Yes, motions provide the leverage that you can exploit to extract a favorable settlement, or ride all the way to a jury victory.

There still must be geezers who toss the motion file at the newly admitted and bark: “Kick some butt, kiddo.” But I’m hard pressed to recall a single motion in the past 10 years that is unimportant. Sure, there are disputes over dates and places for depositions, but with the number of litigated cases dwindling, the focus on each one intensifies. Back in the day when firms were inundated with thousands of lawsuits, lawyers only concentrated on the huge ones. The broken fingernail cases were handled cavalierly until a jury was selected.

No more. Writing a half-baked opposition or omitting a seminal case is the only way you can commit a mortal sin these days. Email allows instantaneous transmission of a 500-page motion to the entire general counsel’s office. And the best part, it doesn’t cost a cent. In the past, no one wanted to thumb through a six-inch-high paper document. Now every client insists on being sent all documents only to forward to their many friends until some Type A personality, between sips of her Wolffer Estate rosé, opens her iPad and shoots off a nasty email asking why you didn’t cite this case or that regulation. Typos, sloppy grammar, poor writing will be identified and criticized. Just like the government knows your every move, technology allows your written work to be disseminated to many and judged by all.

Here are a few simple tips on how to handle motions:

Write short, cogent sentences in clear and precise language. Length does not equal brilliance. Make your argument, cite the law, and tell the court what you want. Be direct. Don’t assume that the judge knows the facts, the cases. Spell it out. In my second paragraph, I always define the motion and the relief I request. “This is a motion to compel defendant to produce Jane Smith, the CEO of defendant, for a deposition. This motion should be granted because. . . .” Don’t force the judge to search through every page. Make it easy. With 30 motions on her desk, she’s not reading every word.

Provide evidence through exhibits and make them easy to access. Use photos, drawings, charts. In color. Make the complicated simple. Judges handle hundreds of cases. They cannot know the minutiae of synthetic collateralized debt obligations or the correct procedure to perform a craniotomy.

Always write a reply. Not only to have the last word, but to rebut any argument, distinguish any case law, and to hone and polish your thoughts for oral argument. Don’t waive the reply; submit one even if it’s only a page or two.

Know the judge. What are her rules, procedures? Some are sticklers for adhering to how and when you serve and file. Does he give adjournments? How many? For how long? During oral argument, does he read the Wall Street Journal, or is he like Justice Scalia—involved with a touch of sarcasm and wit learned on the streets of Queens? How much time? Is it a hot bench, or do you have to educate the judge and her law secretary?

Stop by the courtroom to observe how the judge handles his calendar. Some have read everything and will ask a pertinent question or two. Others will allow lengthy argument with little interruption. Some have no patience and will lash out when both sides can’t agree on discovery disputes. Better to know all this stuff before you approach the lectern. In state court, the law secretary often plays a larger role—calling the cases, hearing argument, trying to resolve the dispute before passing the file to the judge.

Look the part. Just recently, my wife had jury duty. I told her that since it was the middle of July, the chances of a civil trial were small. At lunch, she said she was empanelled, and even though she knew little of the facts, she was certain it would be tried since each lawyer dressed “professionally, neatly, really expensive suits.” She determined the case was significant simply because the two had shined shoes and power ties. Of course, it settled.

Same for you. If you look like a slob—stained suit, scuffed shoes—you may be discounted. Serious lawyers look the part. You don’t have to wear a Brioni suit, but be organized and comb your hair. My colleague, Jeanne O’Grady, was arguing a case when the judge ordered her adversary to spit out her gum. This embarrassment could have been avoided if the attorney had listened to the initial instructions, which included the admonition to discard any gum. That a judge needed to remind us to toss the gum is, well, sad.

Know the facts and law better than your adversary. All the details. If you can rattle off dates, injuries, treatment, or if you know the corporate hierarchy and each big shot’s responsibilities, you’re in command. Who knows what the judge will ask? Be prepared for everything. But if you don’t know, tell the judge. It’s not a felony to admit you’re unsure. “I’ll check that and provide it to you in a letter later today, if that’s agreeable.”

Organize your argument and your file. Plan various scenarios. Write an outline of the points you wish to emphasize. Consult it. In the heat of battle, you may forget an issue. So when the judge asks, “Anything else?” you’ll glance at your notes and reply, “Yes. . . .” Don’t rebut your opponent’s every assertion. Yeah, he’s disingenuous and a sleaze. But your goal is to win the motion, not the mud wrestling contest. Stick to your theme and avoid invective. Be confident; jump right into the reasons you should prevail. If you start with “Summary judgment is a drastic remedy . . . ,” the judge’s mind will return to that three-foot putt she missed yesterday.

Quote exhibits, case law. With an orderly file and a few Post-It notes, you can easily access whatever you need. If you fumble around, searching for an exhibit or case, it speaks of being unprepared and uninterested. Nothing worse than having to rustle through papers while trying to answer the judge’s question.

Speak to the judge. Answer inquiries directly. Provide reasoning and legal support. Ignore your adversary’s junior high antics of making faces or noise. Be professional. Don’t go off on a tangent. Don’t go on and on. When you have completed your presentation, thank the court and sit down.

Kenneth P. Nolan

Kenneth P. Nolan, the author of A Streetwise Guide to Litigation (American Bar Association) and a senior editor of Litigation, is with the New York City firm of Speiser, Krause, Nolan & Granito.