INSIGHT: Five Questions to Ask a Week Before Filing That Critical Motion

You have a critical motion due in a week. If you’re in-house counsel, you’ve seen a draft and it seems fine—though maybe a little vanilla, with a few typos. If you’re outside counsel, you’ve edited the motion and are pretty pleased with it.

Everybody’s signed off. What’s left but to fix those typos and file?

Hold on. You’re at a potential turning point in the case. You still have time to educate (and impress) the judge, find new authorities, and marshal creative arguments. There’s time to uncover telling details in key documents. There’s time to polish the draft so that it sparkles.

Yet all too often, it’s at just this point that inertia takes over and the motion is filed as-is. It’s a B+ motion. You won’t get flak for filing it. But this motion, in this condition, doesn’t put your client’s best foot forward.

You can raise your odds of winning, or at least getting a happier result, by asking the following five questions before you file:

1. If I Knew Nothing About This Case, Would the Introduction Help Me?

Now, this question assumes you have an introduction. Most appellate briefs these days have a decent, thematic introduction written to orient busy generalists, as Seventh Circuit judge Frank Easterbrook calls circuit judges. But many trial-court motions have no introduction. Or at least the introduction doesn’t go beyond defining the parties (“parties”)—who are already defined in the caption—and giving some citation and jargon-ridden reasons for granting the motion.

This is unfortunate. Trial judges are busy generalists, too—typically, busier than appellate judges. So skip the definitions, skip most of the citations and all the jargon, and skip the detailed reasons for granting the motion.

Skip the detailed reasons for granting the motion? Yes, for now. In all likelihood, the judge doesn’t remember what your case is about, or at least needs a refresher. She’s just finished reading, say, a discovery motion in an environmental case. Her mind is elsewhere.

Ask yourself: If I knew nothing about the case, would this introduction help me? Would it pan the forest or zoom in on a patch of bark on one tree?

To avoid a patch-of-bark introduction, answer the questions journalists are trained to answer: who, what, when, where, why, and how? Those are the questions you’d have if you knew nothing about this case, and they’re the questions your judge initially will have.

Now read your introduction out loud to a friend who’s not a lawyer. If that person doesn’t immediately grasp what’s going on, start over.

2. Does the Fact Section Start With My Client’s Story?

Author Ross Guberman notes that the beginning of a fact section works a bit like the first scene of a movie. When the previews end, what’s the first thing you see: A landscape? A face? A Weapon? Often, that image, and that scene as it unfolds, sets the tone for the whole film.

In trial-court motions, lawyers often start their “movie” with a chronology, which usually begins with the first thing the defendant allegedly did wrong. Great—if you represent the plaintiff. You want to talk about the bad guy doing bad things.

But if you’re counsel for the defendant, you’re in enemy territory (so to speak). Do you really want the judge to focus on how your client allegedly breached the contract? Isn’t your story about the terms of the contract, and how clear they are?

Begin the facts by telling your story, not the other side’s.

3. Have I Considered Every Available Argument?

Here’s a question that’s easy to ask, but devilish to answer. After all, you can always keep looking. But too often that’s just an excuse to quit.

A tip for finding new arguments: Read the paper you’re addressing in your motion—say, the complaint, or expert report—out loud. Now list the five points that have the most selling power. Look carefully at points three through five. Have you fully rebutted them? If you scour the cases (or key documents) with those three points in mind, chances are, you’ll see new openings.

In motions practice, it’s so easy to squirm away from the hardest issues (or tell yourself the judge will never care about those). Don’t do it.

4. Is the Document Polished?

So much about litigation is uncertain. Typos, formatting flaws, and rule violations are not. Reread the local rules and the judge’s standing orders. Then proofread the document—twice. The judge will notice the slightest smudge or irregularity.

5. Assuming There’s a Hearing, Why Shouldn’t I Hold a Moot Court?

Moot courts are routine in appellate practice, but alien to trial lawyers. This makes little sense given the stakes of major motions.

So, even though you’ve not yet filed your motion, it’s not too early to start planning for the motions hearing the way you’d prepare for an appellate argument.

Yes, it’ll cost some money to pull together a few folks who know nothing about your case to read the papers, pummel you with hard questions, and then debrief. But what a payoff. I’ve never seen a moot court that didn’t leave the lawyer better appreciating the strengths and weaknesses of his arguments.

One of my partners, a superb trial lawyer with nearly 30 years of experience, recently held his first moot court before arguing a motion for summary judgment. He won the motion, thanks in part to questions asked at the moot court. And his position just prevailed on appeal. He told me he’ll never argue a dispositive motion without a moot court again.

Takeaway

It’s been said that the history of military failures can be captured in two words: “too late.” The same is true with lawsuits. Critical motions are an early chance to alter the whole case. Don’t save your best resources for a post-trial brief, or, worse, an appeal that may never come. Deploy those resources now, when they can still make a difference. Ask these five questions seriously, and answer them honestly.

The motion will improve. And so will your odds.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Andrew C. Nichols is a partner in the Washington, D.C., office of Winston & Strawn LLP. He focuses his practice on appellate proceedings and motions that resolve complex commercial lawsuits before trial. He has extensive experience in intellectual-property litigation, consumer-products cases, preemption and constitutional challenges, and class actions of all kinds.