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.

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