Motion Tips for the New(er) Attorney in the form of Simple Life Lessons

1. Motion Tips for the New(er) Attorney in the form of Simple Life Lessons Motion Practice Presented by: Leah Sills, Legal Aid of WV Prepared by: Dianna Parker, Legal Aid Society of Columbus

2. (Always have a) PLAN. • Motion Practice Generally • Types of Motions • Practical Tips for the new(er) attorney in the form of simple Life Lessons • Arguing Motions • Questions? • Simulation

3. Motion Practice Generally Used to regulate routine “housekeeping” matters, but they can also kill or win your case and can have a HUGE impact on what evidence you get to use, strategy, etc. DO NOT underestimate the importance of motions!

4. Motion Practice Generally • A motion is an application to the court for an order or a decision. Motion practice includes both: • technical requirements – format, length, service, timing • substantive requirements – organization, construction, legal argument and evidence

5. Motion Practice Generally • Under FRCP 7(b), there are 3 requirements for filing a motion. The motion should: • Be in writing • “State with particularity the grounds therefor” • State the relief or order requested State rules 7(b) are usually very similar to the FRCP, but you MUST read your state and local rules to be sure.

6. Motion Practice Generally • Filing motions shows the other side that you are serious and can help you determine how “serious” they are. • Motions let you take control of the case and frame the issues from your perspective. • Motions can focus the litigation and give you an opportunity to resolve some issues and creatively address others.

7. Types of Motions - Pretrial • Extensions of time and continuances • Amending pleadings • Substitution of parties • Rule 12 motions • 12(B) – personal or SM jurisdiction, venue, process, failure to state claim, join party, dismiss • Judgment on pleadings • Definite statement • Motion to Strike (watch out for this)

8. Types of Motions - Pretrial • Motions for temporary relief (eg, child support) • Protective orders and motions for rule 11 sanctions • Discovery motions • Summary judgment • Motions in limine • Various other motions, procedural or otherwise, that advance your case and/or resolve issues

9. Types of Motions - Pretrial • Motions for immediate relief: • TROs and preliminary injunction • Ex parte requests • Seizures or return of property • Emergency motions • Be careful with these, and be prepared to spend a LOT of time waiting around at the courthouse for your emergency to be heard.

10. Types of Motions – Trial and Post Trial • Directed verdict • JNOV – notwithstanding the verdict • Conform pleadings to evidence • Request for findings of fact and conclusions of law • New trial • Reconsideration • Stay of execution/judgment pending appeal

11. Litigation (and life) Lessons • Go Local. • The state and federal rules of civil procedure govern some things, but local rules often add additional limitations, requirements, etc. Read them. • It’s not cheating to “Copy.” • Check your office’s brief/motion bank. Someone else has most likely done one of these before. You should not be spending time reinventing the wheel!

12. Litigation (and life) Lessons • Play by the Rules… • They may contain standard forms for pleadings, motions, etc. Read them, and check any office template or example you find against them. • Especially Rule 11 • You are making a certification when you sign your pleadings/motion. Check with your client before filing!

13. Litigation (and life) Lessons • Be creative... • Sometimes you might need to make up a “new” motion because you want the court to do something and you can’t find a template or example in the rules or your office’s motion bank • But not stupid. • Please talk to your supervising attorney before you do this, but also don’t assume that just because no one else in your office has done it, it is undoable.

14. Litigation (and life) Lessons • Just because you can, doesn’t mean you should. • Pay attention to the number of motions you are filing. • Often you can combine several motions into one document/one filing batch/one hearing. • Alternatively, you can resolve motions by agreed order with opposing counsel before the hearing. • This will irritate the judge less, which should always be one of your goals.

15. What Not To Do Washington v. Alaimo, 934 F. Supp. 1395, 1396 (S.D. Ga. 1996) • “On April 5, 1996, this Court ordered Plaintiff to show cause why this Court should not impose Rule 11 sanctions upon him for filing a motion for improper purposes. The motion which Plaintiff filed was entitled ‘Motion to Kiss My Ass’ (Doc. 107) in which he moved ‘all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother fucker you.’”

16. Litigation (and life) Lessons • Do your homework. • Ask your colleagues in your office about the judge to whom your case has been assigned. Who the judge is might change/alter your strategy in filing and arguing motions and responding to the other side’s motions. • Play nice. • Be friendly to the court staff – docket clerks, file room clerks, sheriff’s deputies, etc. Your life will be more pleasant if they like you.

17. Litigation (and life) Lessons • Turn it in on time. • Pre-trial or scheduling orders may contain strict deadlines about filing motions. Put them in your calendar and find a way to set reminders for yourself. Try to start working on your motion before the day it’s due. • Help out when you can. • Include with your motion a proposed order for the judge to sign, if appropriate. If you don’t, arrive at court early and begin filling out the order form. • ALWAYS volunteer to be the attorney who writes up the order!

18. Arguing Motions

19. Arguing Motions • Always be prepared. • Know the law. Read the cases you cited in your motion and the cases the other side cited in her reply. Outline, practice, whatever works for you. • Show your work. • Make a cheat sheet of your main points AND the other side’s main points, including statute/case citations and citations to evidence that relate.

20. Arguing Motions • Share your work. • Bring a copy of the statute(s) and cases with you to court (+ one for the judge). • Think about tabbing/highlighting main points so you can find them quickly if the judge asks. • Draw (or paint) a picture. • Do not assume the judge remembers previous hearings, read your motion or the pleadings, or knows the facts of the case. Set the scene.

21. Arguing Motions • Never let them see you cry… • …or shout, wince, roll your eyes, laugh, slam the table. Even if the other side is yelling, saying something completely absurd, etc., keep your cool. • Don’t rub it in. • When the judge agrees with you, stop talking. • Remember to listen. • Listen to the judge’s comments and questions. Respond to them. • When preparing for a reply: while the other side is talking, take notes and mentally organize your reply.

22. Arguing Motions • Take a Deep Breath. • Do not be afraid to ask the judge for a moment to collect your thoughts/notes for the reply. • Remember your Manners. • To the extent possible, look at the judge, not your opposing counsel. • Request permission before speaking – may it please the court, may I reply, etc. • Take Charge (in your reply). • Create your own organizational structure when replying. • Repeating or mirroring your opponent’s structure only serves to legitimize his/her argument. • Be brief (on your rebuttal). • Keep your reply, refutation, rebuttal (whatever you call it) brief and to the point. • No need to repeat your previous points unless you want to emphasize them.

23. Arguing Motions • Know your surroundings. • Watch the judge’s visual cues. Often he will visually let you know when he’s made a decision or heard enough. • You get what you ask for. • Even if it is one sentence, end with a concluding statement asking the judge for the particular relief, order, or action you are seeking.

24. Questions? Leah Sills Supervising Attorney Legal Aid of West Virginia (304) 645-3131, ext. 2614 lsills@lawv.net Thank you!