I recently reviewed an excellent article by Judge Jacqueline A. Connor of the LASC in the May issue of Advocate Magazine. In that article, entitled "The 12 best ways to sabotage your motions", her Honor provides several (well, 12 actually...) well thought out guidelines for effective law and motion work. The following is my humble summary of those "Do's" and "Don'ts" guidelines along with my thoughts as well.
(1) DON'T mis-cite cases- your credibility to the court is paramount, and if a case you cite doesn't say what you offer it for, you're fighting an uphill battle;
(2) DO explain your cases- Space permitting, explaining the cases and their applicability to your position shows the Judge that you have a greater understanding of the issues (again, your credibility is at stake).
(3) DON'T get personal- avoid personal attacks. In the "heat of battle" and in our sincere effort to be advocates for our clients, especially with an adversary that you find to be obstreperous, lawyers can get overcome by that adrenaline push. However, I personally find that you can diplomatically make your point ("the argument is misguided" or "the reference to 'X' case is misplaced"), rather than resort to attacks on the lawyer who made the "misapplied" argument. Further, if you honestly feel like your opponent is being churlish, or even childish, taking the higher road works better and may even "bait" the other guy into demonstrating in front of the judge just how unreasonable he is being.
(4) DO pinpoint your citations- if you're referring to a particular passage, tell the judge exactly where it is; don't make the judge look for it. (E.g. 123 CA 345 at 348, not simply 123 CA 345) Further, if you're "dead on" with your assessment of the meaning of a case, making it easier for the Judge to confirm that fact can only serve you well.
(5) AVOID overusing bold, underlines and highlighting. (Ironic huh, that I bolded the "don't") Judge Connor feels that this can be viewed as insulting to the Judge reading your papers. Personally, I have used (and still use) such devices (though I have resisted that urge more as I got older), to try to focus attention on the passage that is important. I think that it is important to put in more complete citations, with the portion that you want to highlight in some type of underline, since that shows that you want to give the Court the complete picture of what the case you're relying on is about (see items 2 & 4 above), while still specifically addressing the part that supports your point. But, if every other word is highlighted, I can certainly see the judges point.
(6) AVOID unfocused arguments- don't use the "kitchen sink" approach. If it doesn't really fit, leave it out. Also, after you've finished a draft, come back to your work later and see if it still makes sense. If not, get out your red pen. I would also suggest that the argument be well-organized; use headings, in your notice say that you will address points A, B, C etc., and then use those as guideposts throughout the body of your points and authorities. It's a "L&M" version of the essay writing technique we learned in school: Tell 'em what you're going to say (succinctly, one paragraph), tell 'em; and conclude with "see, I told you what I was going to prove."
(7) AVOID boiler plate motions in limine ("MIL")- When I did mostly defense work, motions in limine were "de rigueur". The decision of Kelly v. Nu-West (1996) 49 Cal. App. 4th 659, did little to convince my partners to curb the practice. But, most of what you can say in such a boiler plate MIL can probably be addressed at the Final Status Conference with a couple of sentences. Reserve your MILs for truly important issues for which you really need the Court to review legal precedent. (Again, your credibility with the Judge is of paramount importance, so if you don't waste his/her time at the outset of your case, he/she will likely be more inclined to listen to you later, when key issues are at stake.)
(8) DO be consistent with numbering in Complaints- If you have a face page that lists 5 causes of action, labeled 1-5, make sure your complaint has those same numbers of causes of action, in that order. It also helps to label them with the same titles. This sounds simplistic and basic, but if the Court needs to quickly find a specific cause of action and can't because you've mislabeled it, it wastes the Court's time, irritates the judge, and as a result doesn't serve your client well.
(9) AVOID boilerplate arguments. With the use of computers, I think we've all "borrowed" arguments from our past work, or from that of colleagues. But, if you're filing a motion in the Smith case, and it refers to "Mr. Jones", the Judge will likely believe that you didn't put that much effort into the project. If you don't approach your task with enough dignity to be technically correct (and this includes typos and spelling errors), the Judge may likely assume that the entire effort just simply isn't that important to you. If it's not that important to you, why should it be that important to the Judge?
(10) DO attach proposed amended complaints- Not only is this required by the Court Rules [CRC 3.1324(a)(1)], but if you can't be bothered to show what it is that you want the Court to approve, why should the Court do so? Judge Connor also notes that if you're going to file an amended complaint in response to a demurrer or motion to strike, do it before the due date for opposition. This (a) shows your professional courtesy, and (b) saves court time, since a Court will be reviewing the moving and opposition papers in preparation for the hearing and filing an amended complaint the day before the hearing only serves to tick off a Judge and/or his/her research attorney who needlessly spent time reviewing all of that.
(11) DO know the rules- If you have a "5 in 1" on your desk, put a tab on CRC 3.1300 et. seq. Make sure you know page limitations, time constraints/deadlines and other formatting requirements. Don't forget to include a Table of Contents and Table of Authorities where required. (I know I sound like a broken record here, but remember that credibility with the Judge is paramount and if you can't keep the formatting rules straight, how can you expect the judge to accept your substantive legal arguments as gospel?)
(12) Related cases- Judge Connor points out that attaching a copy of the "face sheet" from the related case(s) is not required when you file a Notice of Related Cases, but you get extra "brownie points" for doing so.
Bottom line: When doing law and motion, your credibility with the Judge hearing your matter is supremely important. You may have the best argument in the world to represent your client, but if it gets lost in a sea of spelling errors, typos, and improper citations, or is otherwise overshadowed by bile spewed at your opposing counsel, that argument may get lost and your client suffers as a result. My thanks to Judge Connor for her great reminder, provided from the judicial perspective.
Monday, May 3, 2010
On April 28, 2010, Plaintiff and Appellant, Rebecca Howell, associated new counsel in this case, who promptly filed a request for an extension to brief the matter on her behalf. On April 30, 2010, the Supreme Court granted Plaintiff and Appellant, Rebecca Howell, an extension to file her brief. That brief is now due June 8, 2010. I will continue to monitor this important case as it progresses through the review process in the Supreme Court and update this blog on those developments as they arise.