As a new lawyer, you often feel like the underdog, especially when it comes to arguing motions in state court. More often than not, your opponent is more experienced, more suave, more in control. He knows everyone in the courthouse by their first name, whether they are attorneys, judicial assistants or bailiffs. Even the judges go out of their way to say hello to him. How can you compete? Preparation can go a long way toward leveling the playing field. The following are some tips to consider.
Pick your fights wisely. Is it wise to file the motion? Is the law on your side? What are the odds the judge will grant your motion? Does the motion really serve my client’s interests? Having a winning track record at arguing motions begins with knowing what battles to fight and which ones to walk away from.
Try to work it out with opposing counsel. Before you draft a motion, call opposing counsel and try to work it out. You may save yourself the time and expense of the motion. If not, you can let the Court know that you tried to work things out.
Keep the motion simple. In state court, particularly during motion calender, courts are swamped with dozens of motions. Make your motion short, simple and to the point. In my motions, I tell the judge up front the relief I am seeking and why I am entitled to it.
Learn everything you can about your judge. Ask around your office about your judge. Is she plaintiff or defense oriented? Is she slow to impose sanctions? Also, obtain a copy of the judge’s protocols for setting and arguing motions. In addition, do a search on Westlaw for all the cases where your judge has been upheld or overturned. One of these cases may address the same issue you raise in your motion.
Learn everything you can about opposing counsel. Look up your opponent on Martindale-Hubble. Also, look at the attorney’s web page to learn about his area of expertise, years of experience, whether he’s been published and anything else to get a sense of his strengths and weaknesses.
Be courteous when setting the motion. Before you set a motion for hearing, clear the date with opposing counsel. Also, be courteous to the judge by not setting motions on motion calender that will take more than five minutes to argue. Some judges have a list of the type of motions they refuse to hear on motion calender.
Send the court a courtesy copy. Send the court a courtesy copy of the motion and a copy of all the cases cited in the motion, with a cover letter informing the judge the date and time of the hearing.
Order a court reporter. Consider ordering a court reporter. Sometimes, opposing counsel or the judge will address issues you were not expecting. It is good to have a transcript of these digressions. Also, parties cannot always agree to the language of an order, claiming the judge said one thing or another. A transcript often resolves these disputes.
Make sure you made the calender. A day or two before the hearing, make sure you made the judge’s calender. Also, confirm with opposing counsel and the court reporter that they will be attending the hearing.
Prepare a hearing file. Prepare a hearing file containing the following: (1) notice of hearing; (2) two copies of the motion (the second copy for the judge if the courtesy copy you previously sent is not at arm’s length); (3) three copies of all the cases, with the relevant portions highlighted; and (4) a blank order (most judges prefer the form orders with the carbon paper).
Introduce yourself and your case. At the hearing, say your name, your client’s name and the title of your motion. Give a brief description of the facts of the case and present your argument clearly and succinctly.
Be professional. Don’t interrupt opposing counsel or the judge. Don’t raise your voice or become upset. Don’t allow yourself to be baited by opposing counsel. And don’t argue after the Court has ruled.
Make a record. Have the judge make a ruling on the record, and try to have the judge address all the issues you raised in your motion. If you filed a motion to compel and for sanctions, have the judge address both issues. If the judge rules against you, do your best to have her limit her ruling. For example, if she denies your motion, have her do so without prejudice.
Prepare the order before leaving the courthouse. If possible, prepare the order at the conclusion of the hearing. That way, if a dispute arises over the language, you can go back to the judge and ask her to resolve the dispute.