Like it or not, every litigator knows that vastly more cases are resolved through motion practice than through trials. It’s our reality.
With this in mind, the Section of Litigation set out to share the wisdom of many on how to make motion practice work better. For the second consecutive year, we’ve taken a national “Roadshow” to more than a dozen cities, focusing on an aspect of improving pretrial practice.
This year, Roadshow 2.0 addressed the subject of “Precision Advocacy—Reinventing Motion Practice.” Each session featured as moderator either Hon. Jeremy Fogel, director of the Federal Judicial Center, or Hon. John Bates, chair of the Judicial Conference Advisory Committee on Civil Rules. Each event also assembled prominent local lawyers, judges, and federal magistrates talking about how to make the motion process work better.
Each city provided unique insights and local color. But the sessions also coalesced around 10 (sometimes familiar) themes that I’d like my team to keep top of mind every day.
1. Credibility is still king. This fundamental isn’t new, but it can never be repeated too often. A judge’s trust is a litigator’s greatest asset. Lose it and you’re swimming against a riptide.
Cultivating credibility requires candor, accuracy, and preparation. A case mis-cited, fact exaggerated, or truth brushed aside means your word just won’t be worth as much. So every motion must embody your trustworthiness, from a credible decision that the motion is worth making in the first place to a fair, honest presentation of its content.
2. No ad hominem attacks. It’s not just that judges detest lawyers who diss their opposing counsel. Personal attacks on another party’s motives almost never advance the court’s understanding of the issues. Instead, they add emotional tension, destroy the civility that every judge hopes to foster, and thereby undermine the accuser’s own stature. Follow Michelle Obama’s motto: “When they go low, we go high.”
In practical terms, this means the word “disingenuous” is virtually verboten, as it at least insinuates your opposition’s dishonesty and insincerity. Your opponent will frequently be wrong. But there is no reason to ascribe bad motives or ill will as you expose the error or falsity of your opponent’s analysis.
3. Judges are people too. Judges in real life do not wear blindfolds. They make decisions for the same reasons as mere mortal humans: to do justice, absolutely; but also to use resources effectively, avoid dissatisfying their superiors (read: reversal), and reduce their own workload. Motions that appeal to these human instincts will more likely prevail.
This means framing motions as solutions for judges, not problems. Explain how the outcome you desire expedites resolution or narrows issues, or why grappling with this thorny issue now is more than a gratuitous imposition on the judge’s limited time. Appealing to the judge’s humanity means showing not merely why the result you seek is compelled by precedent, but also why that result is genuinely fair and good and right.
4. Ease of use. Like other humans, judges (and their clerks) appreciate those who make things easy and user friendly. Think Steve Jobs and Apple user interfaces. This means presenting papers and arguments that are easy to understand. But it also means organizing the papers to be easy to use, with tabs, highlighting, and easy citation reference, and never an unnecessary exhibit. Pinpoint cites should supply pages, paragraphs, or sections. The more precise the cite, the more credible and the more likely to be read.
5. Be selective. Too many motions being filed clogs the system, allowing less attention to the key, decisive issues. Precision in advocacy means thinking carefully about whether each motion is needed and likely to win. It means avoiding the “kitchen sink” metaphor and instead opting for the “cutting room floor.” Don’t fall in love with your arguments, or strategy, before checking with colleagues who can offer perspective. And consider whether the issue can be resolved by a call to opposing counsel—as one judge put it, “a phone call couldn’t hurt.”
Some cases deserve 12(b) motions. But a reflexive filing, because “you never want to answer too quickly,” wastes client and judicial resources. It is also transparent to a judge (remember that credibility we wanted to cultivate?). Indeed, judges start from the presumption that 12(b)(6) motions usually present factual issues prematurely. If you plan to argue that Twombly/Iqbal requirements of “plausibility” doom a complaint, you need compelling logic, not merely the insistence that a claim is “unlikely.”
6. Brevity. Filings that are too long clog the system just as much as too many filings do. Even in complex cases, there is usually no reason a pleading can’t be genuinely “brief.” Judge Eugene Lynch, in my home district, used to impose a 10-page limit on all motions. That rarely kept us from writing motions well or him from deciding them correctly. The old saw that “I didn’t have time to write a short brief” often has some truth to it, but it also has a self-evident solution.
I think the best brief I ever wrote was a taut 10-pager that invalidated a rent control ordinance as unconstitutional. The 10-page limit was one reason the brief was so good. I must admit, however, that the other was my opponent’s prior refusal to continue my client’s deposition when my wife began pre-term labor for our first child. (But civility is a subject for another column.)
7. Clarity. While clear writing is always more persuasive, the judges at the Roadshows expressed particular desire to know, at the beginning of a filing, precisely what relief the movant is seeking. As one judge in Philadelphia added, “if the writing isn’t clear, the thinking isn’t clear.”
Clarity also means organization. One point should flow in clear and logical order, connected by contextual transition, to the next. As the late Professor and Special Prosecutor Archibald Cox said it well: “A good brief marches; a great brief whistles while it marches.”
8. Embrace the power of concessions. Acknowledging an opponent’s valid point can have unexpected power. It allows you to focus the judge’s attention, and train your fire power, on the issue where you are strongest. At the same time, you build your credibility as a balanced advocate and solve one of the judge’s problems by taking away an issue otherwise requiring decision.
9. Use pictures. Want to give a point extra impact? It’s now easy to paste a screenshot into your brief. The image isn’t buried in the exhibits; it immediately attracts attention. This is true for excerpts of testimony and slices of documents, not merely demonstratives or photographs.
10. Invite judicial management. Judges (and jurisdictions) vary widely in their involvement in planning what motions are filed, when, and what issues they address. Some carefully script the sequence of the case. Others set a trial date and forget it. And everything in between.
The wisdom from the Roadshow, and the federal rules committees, is that substantial management can help reduce the backlog of motions that clog our system. Conferences about what issues genuinely require motions cut back on filings that might be avoided by stipulation or by solving other issues first.
If your judge is a consistent manager—bravo! Use the opportunity. But if active management is not his or her norm, consider asking for it. Many judges assume that lawyers prefer judges to stay hands off, “let the lawyers run their case,” and just weigh in when disputes arise. It’s important that we tell our judges we want them to weigh in earlier. In the end, our clients’ interests benefit much more from courts that proactively drive to earlier, lower cost resolutions.
With the courts’ help, and adherence to the ideas above, may your motion practice be both more streamlined and more successful.