“Strategies for Excellent Court docket Motion Exercise”

A perhaps helpful record, from California Court docket of Charm Justice John Shepard Wiley Jr., who served quite a few decades on the L.A. Outstanding Court, and who right before that was my colleague at UCLA College of Law. Retain in mind that some of these have to do with the tactics of the L.A. Excellent Court docket (our community trial court docket), but most implement far more broadly.

Created briefs

  1. Study what you can about your choose. Judges are people today, with worldviews and pet peeves and all the rest. Contemplate tailoring your presentation to your viewers. But do not pander. (“I have an understanding of the Court docket has a collie. I have two!”) When in question, err on the side of formality and convention.
  2. Straight absent, summarize what motion you want the courtroom to consider. The introduction following really should existing the heart of your argument. This is the most critical portion of your temporary. Retain modifying until finally it is wonderful and concise. Your conclusion should briefly reiterate the result you urge.
  3. Direct with your finest and most essential argument. In the opposition and the reply, even so, observe the relocating paper’s business, so visitors quickly can observe the discussion.
  4. Target on authorized authority. In point out court, stick to revealed point out circumstances on issues of state law. If a statute is decisive, anchor your argument in the statutory terms. Set “plan arguments” past, or skip them. Trial judges generally regard them as arguments of past resort: symptoms you have no favorable statutes or situation law. But when distinguishing unfavorable precedents, display why it would be inadvisable to extend inapt precedent to this different condition.
  1. If there is an vital and troublesome case, discover it and distinguish it as ideal you can. Disregarding a circumstance is unwise: they will observe. Never ever try out to trick opposing counsel or the court docket. That is poison.
  2. Never fudge a holding. The other facet will capture you and make you pay out. You should not give them this chance to problems your credibility. Be candid when a case is basically analogous rather than directly on point. Explain the variances and why the authority nevertheless applies.
  3. In opposition, answer to each argument and scenario in the opposing transient. In reply, do the identical. Ducking a issue will make viewers conclude you have no good reaction and should eliminate. If a point is insubstantial, dispatch it quickly but do not overlook it. Will not incorporate new evidence or a request for judicial notice in the reply, wherever the other aspect has no option to react. Do not exceed page limitations.
  4. Be concise. Edit. Then re-edit. As Fred Astaire reported, “Get it excellent. Then lower two minutes.”
  5. Assault the argument, not the person. Forcefully attacking an argument is superior. (“This argument tends to make no feeling.”) As for opposing counsel, nonetheless, get rid of them with kindness. (E.g., “my colleague,” “my close friend,” “misplaced” or “incorrect” or “faulty” alternatively than “absurd” or “misrepresenting” or “undesirable religion” or “misleading the court docket.”) This is primarily accurate if opposing counsel is contacting you names. Abusive opposing counsel give you a splendid chance. Do not stoop: make the contrast in professionalism obvious. Be the lawyer your mother needed you to be. The courtroom may possibly well recognize and keep in mind. When publicly on the assault (and in tense private negotiations), test referring to the opposing get together or client instead than specifically to opposing counsel becoming much less immediate can avoid triggering adrenal glands.
  6. No footnotes. Persuasive argument is linear and powerful. Footnotes are tangential and distracting. Judge Posner writes that footnote content peripheral to the argument can be deleted if critical it can be labored into the textual content. (Numerous judges do use footnotes by themselves, but they will not fault you if you do not. Other judges will simply just rejoice in your pretty prose.) Employing footnotes to cheat on site limits is discreditable.
  7. If the movement is of a plan kind (like a summary judgment movement), expend nominal time describing its nature. Steer clear of boilerplate. No block quotations. Elmore Leonard advised writers to “try out to leave out the component that audience are inclined to skip.”
  8. Steer clear of exclamation details, jargon, acronyms, or abbreviations (except absolutely everyone previously appreciates the abbreviation, like “FBI”). It is great to shorten a name in a clear way (“Wingnut Nationwide” or “the lender”) but it is aggravating to have to search back in the quick to remember what “WNCU” or “MHNB” may possibly be. Avoid phrases you have hardly ever heard anybody in fact say, like “therein” or “hereinafter.”
  9. Lessen adjectives. Unadorned statements are effective. Enable visitors attract their possess conclusions and pick their individual adjectives. Present, do not inform.
  10. Get treatment on details. Use pinpoint web page cites for each case. Do not tolerate grammar, spelling, or fashion problems. Abide by the California Style Handbook in California condition court docket. (For occasion, see principles 4:28.3 and 4:28.4.) When you have attained the stature of Judge Posner, then you may well indulge your contempt for fashion manuals.
  11. Exhibits: use tabs, so viewers can find content conveniently. On line, add just about every exhibit independently, because there are no hassle-free tabs.

Oral argument

  1. Do you even will need oral argument? If the court docket posts a complete tentative ruling, consider irrespective of whether oral argument will be productive. Should really you get in touch with opposing counsel and submit on the tentative?
  2. If you do look for oral argument, put together, prepare, get ready. You (or someone) wrote the brief a while again, but the choose might have been poring over the conditions only seconds just before having the bench. Be completely ready.
  3. Begin your display suitable: when the courtroom phone calls for appearances, point out your identify distinctly and with brio, and determine your customer. Make sure you will not start with a mumble. The cliche about under no circumstances receiving a 2nd probability to make a initial impression is exhausted but correct. If the motion is crucial, show up in man or woman and not on the phone, for it is crucial to watch your audience thoroughly. Do not be expecting any individual to electronic mail or submit a created tentative ruling you are not there to get in person.
  4. Lead with your most effective and most essential argument. You might get only minutes.
  5. If there is new authority, print out and spotlight at the very least 3 copies of the new scenario: a single for courtroom, 1 for opposing counsel, and one for you. Give it to opposing counsel well prior to you start off your argument.
  6. Hear diligently to what the decide claims. These phrases are cherished: they are home windows straight into the intellect of your decisionmaker. React to that content material. Response concerns directly. Dodging them is counterproductive. Start with a basic certainly or no, if achievable, and then demonstrate.
  7. If the choose concerns a created tentative ruling, thank the court for this exertion (particularly if it is versus you). Inquire for a brief recess to research the tentative thoroughly and, if it is versus you, to locate its central weak spot. Concentrate on that linchpin rather than on disputing each issue, start to end.
  8. In no way interrupt the choose. If the judge interrupts you, straight away cease talking, listen very carefully, and reply to that point. Do not interrupt or handle opposing counsel. When your colleague has concluded, stand and check with, “May I answer?” Remarks or inquiries to opposing counsel are poor, unless the choose calls for an casual and off-the-report performing session. Some judges want you to stand when talking and like “Your Honor” to “Decide.” (Neighborhood rule 3.95 utilized to require this usage.) Err on the aspect of caution right until the decide says usually. Prevent “with because of regard,” which lots of judges understand as insulting. “You guys” can be perceived as sexist and inappropriate to this formal environment.
  9. Smile and be pleasant, even if the decide is a dragon. The typical rule is to keep your psychological amazing. Immediately after significant working experience, you may perhaps come to a decision enthusiasm can be productive in the proper situation, but this tool is sharp and can create self-inflicted wounds. The persona of “calm, realistic, and helpful” is just about often superior.
  10. Discuss bit by bit. This can choose a whole lot of practice. So observe. Do verbal tics plague your courtroom speech? Um? Like? You know? Remove these. With opinions and sustained instruction and effort and hard work, you can do this. Demosthenes perfected his oratory by talking with pebbles in his mouth. General public speaking is an ancient artwork kind. Review this heritage.
  11. Seek the services of a court docket reporter. If you never assume the listening to is well worth that price tag, your appellate law firm afterwards may possibly berate you and your trial choose may possibly draw a silent and adverse inference.
  12. Visual aids can be great. Be imaginative. If some object or gadget is critical to the situation, and portable, take into account bringing and displaying that point.
  13. If the tentative is in your favor and the judge states the other side’s oral argument has not moved her, just say “practically nothing more, unless of course the court docket would like to listen to from me.” After argument and a remaining ruling, do not attempt further more argument.
  14. Question for precedence only if needed.
  15. Convey a proposed order for the choose to indication on the spot.

Copyright 2023 by John Shepard Wiley Jr.

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