Pleading and Pre-trial Motion Practice

Motion practice is an important aspect of every case since it sets the tone of what opposing counsel and the court may expect of you. It is extremely important to appear prepared, controlled, organized, efficient, effective, serious and as a winner to opposing counsel and the judge. In order to succeed in motion practice, you must have a strong knowledge of the rules of civil procedure, evidence, the facts of your case, the substantive law upon which you are bringing your lawsuit and of the specific idiosyncracies of the court that you are practicing before. When preparing a motion, make sure that you research the law that supports the motion and shepardize all of the cases so as to assure that there is no recent case that destroys your position. When you are sure that you have a winning argument, then precisely, directly and persuasively write the matter in your motion. Do not rely on legalese or generalities. Instead, focus on why the motion should be granted and support it with sufficient facts and law so as to allow the court to quickly agree with you. If the motion involves complex legal matters, consider preparing a memorandum of law to support the motion. Fight the temptation to prepare a law review article in support of your motion. Instead, prepare a short, but to the point, memorandum that highlights the key cases, statutes or rules that will allow you to win. If the matter is so complex that it requires a multi-page memorandum, begin the memorandum with a short summary of the key facts and points of law that will support the motion. This will be helpful to a busy judge who may not have time to read your entire memorandum of law. By highlighting the key points in the summary, the Court will promptly understand the gist of your motion. Make sure to deliver a courtesy copy of the motion and memorandum of law to the judge at least one day before the matter is heard. All too often, litigants show up before a judge for a hearing and then proceed to stack several inches of paper before the court for a fifteen minute hearing. Obviously, the court will not have time to read any of the motions and at best will have to defer his or her ruling on the motion. You should provide the Court with courtesy copies of the case law supporting the motion and memorandum of law. Remember to highlight the relevant portions of the case that support your position. If there are cases that are contrary to your position, you should mention them and distinguish them. This will provide you with great credibility. As a result, the Court will always look at you for the right answer during the course of the litigation. Remember to review your motion, memorandum, relevant case law, statutes and rules before the matter is argued. Find the motion and memorandum of law in the file, re-read the cases, statutes and rules, familiarize yourself with the facts and be fully prepared before you walk into the Court’s chamber to argue the motion. Too many times you will see experienced attorneys flipping through the file attempting to find the motion and memorandum of law while arguing the matter to the Court. This gives the appearance that you are not prepared or that you are somewhat sloppy in your presentation. Your should organize your argument and file so that you may appear confident, prepared and knowledgeable. Remember that opposing counsel and the court are “sizing you up”. The impression that you leave them with as a result of your performance during motion practice will lead to the ultimate opinion that they have of you as the case progresses. If you perform poorly throughout motion practice, chances are that you will lack credibility by the time the case is tried. Once you go inside the Court’s chamber to argue a motion, do not allow your opponent to intimidate you by speaking poorly of your motion or your position in the case. Instead, remember the strong points of your case, your argument and think positively while visualizing yourself as winning the motion. You should set the goal of winning the motion early in your mind so that by the time you actually argue the motion before the court, you will feel as if you have already experienced the matter and have won. This will increase your confidence during the presentation of the motion. Motion practice should be taken seriously. You should thoroughly research, prepare, and organize your written motions and oral presentations. The impression that you leave opposing counsel and the Court with as a result of your motion practice will follow you through the end of the trial. Attorneys can develop great or poor reputations as a result of their performances in motion practice. Prepare motions as if they were going to be published and present your arguments as if they were being televised. The use of this standard will motivate you to properly prepare for each motion and hearing you handle. Remember to always appear confident, prepared, organized, efficient, and as a winner during motion practice. This will lead to your overwhelming success as a trial lawyer.