With the vast majority of cases being resolved through motion practice over trials, the Section of Litigation invited lawyers and judges from across the country to share their wisdom on how to make the motion process work better.
This past spring, “Precision Advocacy: Reinventing Motion Practice to Win” took place in more than a dozen U.S. cities, where panels of top practitioners gathered to offer methods to upgrade motion practice, and make motions and oppositions more effective, while at the same time saving courts time and money.
These practical tips, compiled in a recent issue of Litigation magazine, included these five gems, shared by Section of Litigation Chair Laurence F. Pulgram of Fenwick & West LLP in San Francisco:
No ad hominem attacks – Avoid personal attacks on opposing counsel, even when your opponent is wrong, as they never advance the court’s understanding of the issues. Rather, “they add emotional tension, destroy the civility that every judge hopes to foster and thereby undermine the accuser’s own stature,” says Pulgram.
Judges are people, too – Judges in real life do not wear blindfolds, says Pulgram, noting that they make decisions for the same reasons as “mere mortal humans”: not just to serve justice, but to also use resources more effectively, avoid dissatisfying their superiors and reduce their own workload. “Motions that appeal to these human instincts will more likely prevail.”
That means framing issues 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.”
Be selective – Too many motions clog the system, leaving less attention for key, decisive issues. “Precision in advocacy means thinking carefully about whether each motion is needed and likely to win,” notes Pulgram, further advising lawyers to consider whether the issue can be resolved with a call.
Clarity – Clear writing is always more persuasive. According to one judge, “if the writing isn’t clear, the thinking isn’t clear.” More than just presenting papers and arguments that are easy to understand, lawyers must also mind how their information is presented. “One point should flow in clear and logical order, connected by contextual transition to the next,” Pulgram advises. Moreover, lawyers should ensure their papers are easy to use, with tabs and highlights – and precise citations.
Embrace the power of concessions – “Acknowledging an opponent’s valid point can have unexpected power,” Pulgram says. “You build your credibility as a balanced advocate and solve one of the judge’s problems by taking away an issue otherwise requiring a decision.”
The foundation of these tips involves building credibility. “A judge’s trust is a litigator’s greatest asset,” Pulgram says. “Lose it and you’re swimming against a riptide.”
For Pulgram’s full list of tips, click here.
Litigation magazine is a publication of the Section of Litigation.