Start Strong--Motions

Suppose you've prepared a motion, filed it, and shown up for the hearing. When you stand up, the first thing the judges asks is "What are we here on?"

You might wonder why the judge hadn't read your motion beforehand. A possible answer is that the judge was simply too busy. But in some courts, the answer may be that the court uses a rotating docket: you don't know who the judge will be, and the judge will not have read the motion beforehand. (This is the reality in the county where I live.)

And if the judge does look at your motion right there, on the bench, on a computer screen, this is what the judge will see:
[case style]

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Pratt Industries, defendant in the above-entitled and numbered cause, and files this its Motion for Summary Judgment, and in support thereof would respectfully show unto the court as follows:

* * *
The information in that opening paragraph tells the judge who the defendant is--already stated in the case style. It says that the defendant is moving for summary judgment--already obvious from the title. And it says that support for the motion follows--obvious to every judge.

The busy judge, hurriedly looking over your motion--on a screen, on the bench--deserves better. The judge deserves a strong introductory summary, perhaps followed by the key points in roadmap fashion.
The recommendation to begin a motion with an up-front summary is not new. I've written about this idea before:
Summaries Part 1
Summaries Part 2
But the recommendation is hard to implement. Maybe the habit of the traditional opener is hard to break. Maybe you fear changing the "form" motion you inherited from a senior trial lawyer. Or maybe you just aren't sure what to do.
 
Here's what I recommend: Say what you want, briefly, and then say or list why you should get it, in the same order in which you'll discuss those reasons in the body of the argument.
 
Here's a good example written by a real lawyer. (Names have been changed.)
Defendant Anderson Chemical's Motion for Summary Judgment

Summary
Anderson Chemical Co. asserts that there is no dispute as to a crucial, material fact about the plaintiff's knowledge and that Anderson is therefore entitled to judgment as a matter of law. Specifically, Plaintiff Reed Stout sued Anderson and others, alleging responsibility for an injury that Jones says occurred while he was operating a railroad switch on Anderson's property.

But Stout's answers in his deposition show he knew of and appreciated the potentially hazardous condition of the switch and reported this condition before the incident on April 1, 2008. Because Stout was aware of the potentially hazardous condition of the switch, this court should grant this Motion as a matter of law and dismiss Anderson from the suit.

Or how about this?
Defendants Adair and Tenet’s Motion for Summary Judgment

William Adair and Tenet Corporation move for summary judgment on the plaintiff's discriminations claim for two reasons:
  • They were never the plaintiff's employer under Texas law.
  • The plaintiff has not exhausted her administrative remedies.
 
These opening paragraphs give the busy, rotating judge at least a chance of understanding what you want. These openers also begin to persuade--inviting the judge to think clearly and favorably about your position. The judge and your client deserve that.

Posted by Wayne Schiess at 3/18/2010 7:33 PM
Categories: Persuasion,Law Practice
 

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  • 3/19/2010 1:19 PM Kendall Gray wrote:
    Starting with a strong summary is important for the advocates as well as the court. Sometimes the advocate seems unsure about what is wanted. I can't tell you how often I see the meat of the dispute buried under ruble late in the briefs--almost like neither side wanted to help the court figure out what was really at issue..
    Reply to this
  • 3/23/2010 4:52 PM John Rolater wrote:
    I practiced before a judge whom I knew would not read more than one page. Good summaries were an especially effective weapon in that court.
    Reply to this
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