Motions Practice and Persuasion 1590316304, 9781590316306

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MOTION

PRACTICE AND

PERSUASION

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Cover design by ABA Publishing

The materials contained herein represent the opinions and views of the authors and/or the editors, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association unless

adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only.

© 2006 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, copyright @abanet.org or via fax at (312) 988-6030. 10 09 08 07 06

5 4 Be

Library of Congress Cataloging-in-Publication Data Jorgensen, L. Ronald. Motion practice and persuasion / L. Ronald Jorgensen.

p.cm. Includes index. ISBN 1-59031-630-4 978-1-5903 1-630-6 1. Motions (Law)—United States. 2. Trial practice—United States. elite; KF8875.J67 2006 347.73’ 52—de22

2006003176

Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 321 North Clark Street, Chicago, Illinois 60610. www.ababooks.org

Contents

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Chapter 1 1 eaters eae ce ats ee ThesmiotiomeDetined . 0 t.%t a eee” oe arth sted vyy rites) VIOLIONS 609s) 0 ee Contradictory and Housekeeping Motions ............... 3 ee. 3) tek ere eee Jucisore Handiiie Ola MOOUR 5 IU PIICLL MIOUOne sn Set sr ne ee aa tic UAL nn eee emeen DIss eee Dire ara OULU rat, y ee nh secs 9 tn ene ee CAVITE VeesasTe miniiia VIOUOlIste, 9 Cee Ree Moen leruinolOopy beer Chapter 2 ree Critical ACUOLS sate ee ctee.s ate ntetetetsers es sake eg ern 13 ah lope pire cecePete Nie siren remit Am a hcl ba ene ene enna 14 ee 15 ee iSreckenloder or Persiasion ot cee Wiadernvindclort cislasiOl mnt ne neat her eee 1° ak, fo ans 18 sae eee Shoricomingstot Bown Modelsye eer os oe a1 Presceyingiiue Record TOL A Dealer ee oe ae pe cic tte e ee ee pi) ne OCKer ee ents ae ere ye 24 eer ca TEES Sea aay ener een atic ee een Btie RE) GCUITIAG ut 24 es BG reel RATT CIT) Mee nyeteen poo Aen oR eeeae men I RE ee se. jugs ee tA le, tee nee Rilest Gl PrOCcOute Chapter 3 ate eotte ota eo oie fe siete sie are si 6 os 6s 29 MPTTee HIVE Snes eet, erste ee ea ows 30 Phesirst Hurdie Requester Order. notee e. 5s 30 Phe Second Hurdles rresentthe PactS 22... 5- 0.20622. vyse eres 2 tne LAW; 22.2202. Laird uiurdie: Arruc hes

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PRACTICE AND PERSUASION MOTION ee The Fourth Hurdle: Prepare the Order ..............+.-. ape The Motion and Its Supporting Documents ............-- 33 The Fifth Hurdle; Deliver the Motion ..............-...-. 36

Chapter 4 The First Hurdle: Request the Order ..........+.+++++++- Ake

Chapter 5 The Second Hurdle: Present the Facts ..............++-5- 53

Chapter 6 The Second Hurdle: Affidavits and Declarations ........... 63 cree cette os oe aa oes 64 HOwsdOsW ite aneATNIGavitw 10.. eee 0.eee 68 Hows to, Wittera Declaration. ...--.) ..s3. 550i Personal; Knowledge... ee ae ae eee 69 Information ang gBelietee nts ete Bioeng ae i) Shortcomings of Affidavits and Declarations ............ 76 Prossutesto buds Cakacts eat medusa ee Jey ee pe ee ee ee MISCOMMUNLCATLON Wo. seo Use of Affidavits and Declarations Early in the Case ..79 Parlure tosRecoenize Danvers). mene toe eae ee 12 Differences Between a Motion and the Theory ts Recs ee Wee See etreer The cae a 80 Ointhe; Caseupsete Making Affidavits and Declarations More Persuasive ..... 80 Chapter 7 The Second Hurdle: Evidentiary Hearings ................ he, Byidentiary. Hearne: alee et ce ree eee Examination. by Oper, Oues tion Sim wesat nee ene VAUSUIGILECCSY ct aa chs, loagieny Stet in eee een or

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Chapter 9 The Fourth Hurdle: Prepare the Order .................. 127

Chapter 10 The Fifth Hurdle: Deliver the Motion ................... 131 PSOE WIOUONY

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Introduction

Motions win cases. Motions place cases in a better position to win at trial. Motions solve problems for lawyers and clients. A courtroom lawyer must be a master at making and opposing motions. This book will teach the lawyer how to make and oppose motions. It will do so by teaching the basics of motion practice. Once a lawyer understands these basics, that lawyer can confidently craft mo-

tions to address specific legal needs. As in any craft, a beginner merely copies another’s work, but the master—understanding

the

basics of the craft—creates original and innovative work. Although this book is written for lawyers just out of law school, it will help all

lawyers write more persuasive motions. Motions are tricky.

A lawyer making or opposing a motion is

like a soldier crossing a minefield cluttered with booby traps. Where the traps are cluttered, the lawyer-soldier must carefully probe. A mishap, and the lawyer risks not only an unfavorable ruling on the

motion but a serious blow to the lawyer’s case. Still, the lawyer-

soldier must cross this minefield to win cases. This book will point out the clear lanes where the lawyer-soldier may freely go and those where the mines are heavily cluttered.

LAWYERS ARE AFRAID TO WRITE CLEAR MOTIONS Although this book will discuss oral motions and presentations, the focus will be on the written motion. As a lawyer, I have studied hundreds of written motions. Some were excellent, but many were unclear and unpersuasive, muddled with meaningless cliches. Even experienced lawyers—some from large and prestigious firms—write vii

viii

MOTION PRACTICE AND PERSUASION

a

poor motions. Many lawyers write poor motions, not because they lack the capacity to write clear and persuasive prose, but because they are afraid to do so. These lawyers would rather copy an old motion, even if that motion is full of nearly unreadable legalese, than risk making an error in writing a new motion. Lawyers are cautious when it comes to changing a legal document, even to make the document clearer and more persuasive. They know that in law, change is dangerous. Words in a legal document often have meanings unknown to the public or even to the average lawyer. For example, in patent law, an object comprising an A, B, and C is different from an object consisting of an A, B, and

C. Whether an object having, including, or containing an A, B, and C is like an object comprising an A, B, and C or like an object consisting of an A, B, and C is unclear.' Yet, the value of a patent

will hinge on such subtle differences in language. Similar word traps exist throughout the law. That is why the

lawyer is reluctant to rewrite a legal document, even for increased clarity and persuasive power. A soldier crossing a minefield will follow the footprints of a creature who made it safely across the minefield, even if that creature is a wandering cow, rather than risk his life finding a more direct path. Likewise, the lawyer-soldier cross-

ing the motions minefield often will copy hackneyed old forms rather than risk a case by writing an original motion. This cautiousness

explains why, in this new millennium, lawyers still introduce motions with phrases such as “Comes

Now”

and “by and through,”

although the drafters of the Federal Rules of Civil Procedure dropped these phrases in their sample motions in 1948. But the hackneyed old forms are unclear and unpersuasive. Too often they still contain booby traps, especially when a lawyer attempts to adapt the form to another court or another case. This is

unacceptable. Well-written motions win cases, or at least make the case easier to win at trial. Poorly written motions lose cases—generating impeaching material that undermines the credibility of the lawyer’s clients or critical friendly witnesses.

Oe a

Introduction ix ERO iene

Even though traps exist, a motion is first a tool of persuasion. The language of a motion should be the plain and persuasive language of opening statements and closing arguments rather than the technical legal language of wills and mortgages. Unlike wills and mortgages, motions create no law. Motions do not define the rights

of the parties. Other than raising issues, motions—and the documents that support them—exist only to persuade. Thus, except for formalities required in all court documents, the lawyer has a great deal of discretion with the language of a motion.

LAWYERS

MUST

EXERCISE

JUDGMENT

Although this book will touch on the statutes and cases that govern motion practice, its emphasis will be on the lawyer’s brain. Instead of merely laying out rules, this book will outline the analysis that

the lawyer must make in writing and presenting a motion. In the courtroom, the law is not found just in codes and law reports. Statutes are only guides. Case law is only history of other judges’ thoughts

about other cases. Instead, in the courtroom, the law is found in the working of the lawyer’s and judge’s minds as they attempt to apply their ideas of justice, mercy, and consistency to the cases before them. One theme that should appear repeatedly in this book is the

need for the lawyer to exercise his or her own judgment in drafting the motion and the supporting documents. Motion practice is a human activity. It is dynamic, not static. The players in motion practice—the lawyers, clients, and judges—are human beings, each with their own likes and dislikes. This book will discuss the issues the lawyer should consider, but ultimately the individual lawyer must

make the decisions. This book will free the lawyer from meaningless form and will give him or her confidence to exercise sound judgment. But until the lawyer understands the basics of motion practice, that lawyer will be reluctant to make the changes needed to be persuasive.

Because of the need of the lawyer to exercise discretion, this is not a form book. Since each legal problem is unique, merely copy-

x

MOTION PRACTICE AND PERSUASION

nnn

ing forms will not give a lawyer the necessary precision to address unique legal problems. The lawyer must master the basics of motion practice. With that mastery, the lawyer will draft motions tailored to each unique legal problem. This book will cite few statutes and little case law. There is an irony in this, because in motion practice, the stuff lawyers work with—the raw materials of motion practice—is the law as contained in statutes and published cases. This book, however, will not focus on the raw material itself, but on molding the raw material into a persuasive motion. Although statutes and rules govern the form of the motion, there

is little case law that teaches how motions should be drafted. Because of deference given by a court of appeals to a trial court’s management of the case, the few appellate cases about motion practice can be misleading. For example, a court of appeals may uphold an unusual practice as in the judge’s discretion, although the practice may not reflect the way most judges handle a problem.

In addition, focusing on case law will often stress the wrong factors that a lawyer should consider in preparing a motion. Case

law on motion practice focuses on minimum

standards and the

judge’s discretion to reject an inadequately prepared motion. However, this book will focus on developing a more persuasive motion rather than on writing a barely adequate motion. Thus, this book will discuss the tools of persuasion, the marshaling of facts, law, and form to produce a winning motion. This is a richer and more rewarding topic for the lawyer to study than some minimal motion requirements.

LAWYERS

listing of the

MUST TRUST INSTINCTS

As I have written this book, I have compared my analysis and conclusions with the motions that I, and other lawyers, have written. Several times while writing this book, I have written a rule, only to find myself later writing or reading an effective motion that does not follow the rule. In those situations, I analyzed the rule again.

Introduction ee

peg

xi

Typically, I have not rejected the rule, but limited the rule to certain types of motions or situations. Like many lawyers, I trust instinct as much or more than reason and logic. Often, an experienced lawyer makes a decision not by conscious legal analysis, but because the lawyer’s gut tells him that the decision is correct. Such decision making is valid. When I have analyzed why I or another lawyer instinctively wrote a motion one way in one case and another way in another case, I have found a

certain logic that can be expressed as a principle that can be applied to other motions. Such development of principles is consistent with our common-law

tradition. The Honorable Ruggero J. Aldisert, Se-

nior Judge of the United States Court of Appeals for the Third Circuit, described the common

law as “a method of ‘reaching what in-

stinctively seem[s] the right result in a series of cases, and only later (if at all) enunciating the principle that explains the patterns. . . 2” For example, many legal writers discourage the use of string cites.° String cites are lengthy listings of cases that support a legal proposition.

These

writers raise many

good arguments

against

string cites. One good cite should be sufficient to establish the legal proposition. Additional cites add nothing but clutter. String cites are nearly unreadable and interfere with the clear prose of a sound legal argument.

Yet lawyers still use string cites. Why? Because they feel that string cites are persuasive. Lawyers rely on their own reactions when researching a case. A lawyer finding only one favorable case won-

ders if the case is an aberration, a fluke. Perhaps the case has been superseded, overruled, or ignored by latter cases. But as the lawyer

finds more cases reiterating the legal principles in the first case, the

lawyer gains more confidence in the case and its principles. The lawyer assumes that the judge will think as the lawyer. If a lawyer distrusts one case but is convinced by many, the judge will distrust one but be convinced by many. Thus the lawyer, seeking to per-

suade a judge, will use a string cite. In experiments

on human

behavior,

scientists have discovered

that if a person perceives that many people have already decided a

xii

MOTION PRACTICE AND PERSUASION

ee

course of action, that person will perceive the course as more correct and valid. Dr. Robert B. Cialdini, a professor of psychology at Arizona State University, wrote: Taking advantage of social validation, requesters can stimulate our compliance by demonstrating (or merely implying) that others just like us have already complied. For example, a study found that a fund-raiser who showed homeowners a list of neighbors who had donated to a local charity significantly increased the frequency of contributions; the longer

the list, the greater the effect.* A lawyer would be foolish to discard a long list of cases that support a favorable important legal proposition.

OVERVIEW In this book, Chapter 1 defines the motion as “‘a request by a party that a court grant an order.” Since almost everything in motion practice follows from this definition, Chapter 1 examines the definition in detail; classifies motions as oral or written, contradictory or house-

keeping; and notes the special needs of the summary judgment motion and of the motion to suppress evidence. Chapter 2 introduces the following factors that a lawyer must consider in preparing or opposing any motion. ¢

The need to influence the judge to grant or deny the mo-

tion. In every decision that a lawyer makes in preparing or

*

opposing a motion, the first question a lawyer should ask is: “What will best persuade the judge?” The need to preserve the record for appeal. The second question a lawyer should ask is: “How can I preserve this issue for appeal?”

The need to conform with rules of procedures. The final question a lawyer should ask is: “What is required by the rules of procedure?”

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Introduction — xiii ine as pe

The need to influence the judge is the most important of the three factors. Thus, the bulk of Chapter 2 is devoted to a discussion on persuasion in general and judges in particular. Chapter 3 introduces the five hurdles a motion must overcome to result in an order. 1. 2.

A party must request the order.

The judge must be aware of the facts that support the motion.

3.

The judge must believe that the law and facts support the motion.

4.

Someone must write the order.

5.

Someone must present the motion and its supporting docu-

ments to the judge. Associated

with the first four hurdles are the four parts of a

motion. To overcome

the first hurdle, the lawyer must write the

motion itself. To overcome

the second hurdle, the lawyer may pre-

pare a statement of facts with affidavits, declarations, and exhibits.

To overcome

the third hurdle, the lawyer may write a memoran-

dum of law. To overcome the fourth hurdle, the lawyer may write a

proposed order. Chapters 4 through 9 discuss each of the four hurdles in detail. While the chapters on the first and fourth hurdles are relatively short and the third hurdles has two parts, the second hurdle requires three chapters. This reflects the dangers of presenting the facts to the judge. For the lawyer-soldier, mines are clustered in the second hurdle. Affidavits and declarations are especially dangerous. A misstep in preparing an affidavit or declaration can hurt both the motion and the underlying case. In comparison, the lawyer generally has clear lanes in crossing the first, third, and fourth hurdles. Although there are some traps in these hurdles, the lawyer can easily

correct most mishaps.

Chapter 7 discusses the evidentiary hearing. Some may question why a book on motion practice would include a chapter on the

xiv

MOTION PRACTICE AND PERSUASION

nn ——$—$————

evidentiary hearing. Although not suitable for all motions, the evidentiary hearing is a critical tool for overcoming the second hurdle. Moreover, because of the judge’s discretion in handling a motion, a lawyer must be ready to present or cross witnesses without the discovery and preparation time normally associated with a trial.

Chapter 10 discusses the fifth hurdle. The lawyer overcomes the fifth hurdle by properly filing and following up on the motion. Although the court clerks process most motions with little input from the lawyer, this area in the motions minefield has some unexpected dangers. Chapter 10 also considers the use of motions in litigation. In the prior chapters, this book taught the lawyer how to litigate a motion. This chapter will show a lawyer how to use the motion to serve the needs of the client. It will also discuss how a lawyer can brainstorm ideas for motions. Chapter 11 is a historical study applying the principles in the prior chapters to the Dred Scott case. Specifically, this chapter will study how Dred Scott’s lawyer used a motion to obtain a second trial after losing the first.

The appendixes contain examples of motions filed in actual cases. These motions illustrate the principles taught in this book. Accompanying each motion are notes explaining the details of each motion and its accompanying

document.

ACKNOWLEDGMENT This is the book I wished I had when I first started practicing law more than 25 years ago. As a new lawyer, I agonized as I tried to rewrite old motions to fit my cases. I fit my words around legal clichés that I assumed were required in all motions. I worried about when I needed an affidavit or memorandum to accompany my motions and when I could submit a motion without these documents. I learned about motions by trial and error, interviews with judges and other lawyers, research of the case law and statutes, and long hours pondering motions and motion practice. Much of the material in this book was distilled from conversations I had with my brother, Paul Jorgensen, a courtroom and ap-

Introduction

xv

——— ee

pellate lawyer in Maryland. Many of my ideas about motion practice were first developed during these conversations. I also learned much from the judges and magistrates of the United States District Court of Utah and from the judges and fellow lawyers of the states

of Maryland and Utah. For better or worse, however, I alone am responsible for the words in this book. Notes

ik

See Ropert C. FABER, LANDIS ON MECHANICS OF PATENT CLAIM DRAFTING, II-9 to

II-12 (4th ed. 1999) RuccGero J. ALDISERT, Locic FoR LAwyers: A GUIDE TO CLEAR LEGAL THINKING 8 Gded. 1997): Don’t use string citations. They are generally irritating and useless. Chief Justice Malcolm M. Lucas of California emphasizes, “Do not use string

cites: explain the application of each case or other authority to your argument. Back up your arguments with direct, analogous, or otherwise persuasive authority.” If a single case in the jurisdiction is on point, citation to that case will suffice, particularly if it is relatively recent. Especially irksome are string cites following a well-established legal precept, such as, “A party must have minimum contracts with the forum state before personal jurisdiction can be constitutionally exercised.” The brief writer who follows this assertion with a string cite runs the risk of engendering brief-reader wrath, which, of course, is something to be avoided. RuGGERO J. ALDISERT, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENTS 243 (1996). Robert B. Cialdini, The Science of Persuasion, Sci. AM., February 2001, at 76-81 [emphasis added].

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About the Author

L. Ronald Jorgensen has more 25 years experience as a trial lawyer, conducting both criminal and civil trials. He has joint J.D.

and M.B.A. from Santa Clara University, a B.A. in political science from the University of California, and a B.S. in electrical engineering from the University of Utah. He is a member of the Patent, Utah, and California bars, and is admitted to practice before the United States Court of Appeals for the Fourth, Tenth, and

Federal

circuits. As a former patent examiner, Ron is an instructor at the Patent Training Academy at the United States Patent Office. He is a

founding partner of the Patent Law Group of Alexandria, Virginia.

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The Motion Defined

7

A lawyer's motion is quite literally a move, as in

a chess game. By his motion he seeks to persuade, or “move,” the judge to rule on some.

. . matter.

Jessica Mitford! A motion is a request by a party that a court grant an order.* Ponder this definition. Almost everything in mo-

tions practice follows from it. Until a lawyer has at least

some idea of the desired order, the lawyer is not ready to write a motion. This is usually not a problem. For example, in a summary judgment motion, the lawyer seeks

an order to dismiss all or part of a complaint. In a motion to suppress, the lawyer seeks an order to suppress evi-

dence. Occasionally, the desired order is less clear. Consider a discovery dispute where the opposing party resists producing requested information. A range of sanctions exists, from a simple order to produce to an order dismiss-

ing the resisting party’s cause of action. In this situation, the lawyer may move

generally for an order for sanc-

tions, leaving the choice of the exact sanction up to the judge. Consider,

however,

the following scenario. A lawyer

represents a client with a severe disability that requires thousands

of dollars of medical expenses. The county 1

2

CHAPTER ONE eee

Se

ee

ee

prosecutor has charged the client with a felony. The lawyer, experienced in local criminal defense, knows that this county prosecutor would normally allow a client charged with this felony to plead to a misdemeanor. The county prosecutor, however, refuses to consider the plea because if the client is convicted of a misdemeanor, the client will go to the local county jail and the county must pay the medical expense. If the client is convicted of a felony, the client will go to the state prison and the state will pay the medical expense. The lawyer believes that the county prosecutor’s reason for refusing the usual plea violates the state’s disabilities act. But what order should the lawyer seek—an order compelling a plea or an order dismissing the case? It is unlikely that a judge would grant either

order. Until a lawyer decides what order to seek, the lawyer is not ready to make a motion. A lawyer trying to make a motion without an order in mind is merely whining. Whining is not persuasive.

ORAL AND WRITTEN

MOTIONS

Except for oral motions traditionally associated with trial or with evidentiary hearings, judges prefer written motions. Written motions allow a judge time to ponder and research the grounds for the motions before making a decision. Written motions seem more se-

rious than oral motions. During trial, however, lawyers make traditional oral motions to

preserve certain issues for the record. Examples include motions for evidentiary rulings, motions for judgment of acquittal, and motions for directed verdict or judgment as a matter of law. Even in these cases, judges will sometimes defer ruling until after the parties have submitted written memoranda of law. In jury trials, judges are hostile to oral motions that lawyers

should have filed as written motions before trial. For example, most judges will refuse to consider a motion for failure to state a cause of action while a jury panel is waiting, even if strong legal grounds support the motion.

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The Motion Defined 3 DO rae eas Lee

Although the federal rules and some state rules allow oral motions at hearings, judges discourage oral motions on matters unrelated to the hearing. For example, at a discovery hearing, a judge may refuse to hear an oral motion to dismiss for failure to state a

cause of action but may consider a motion for sanctions for discovery violations. Should a lawyer make an oral motion unrelated to

the subject of the hearing, the shrewd judge may request that the motion be in writing. If the lawyer does not follow up with a written motion, the oral motion may be waived for appeal. Even when the judge considers an oral motion, the lawyer may still need to support the motion with a written memorandum.

Stull, oral motions are important. During trial, a lawyer must orally renew certain written motions that were denied before the

trial. If the lawyer does not, those written motions may be waived for appeal.* Often, a judge may reverse a prior denial of the written motion after it is orally renewed at trial. Oral motions also give the opposing side little time to research or respond to a motion. Oral motions thus favor the prepared and the quick-thinking.

CONTRADICTORY

AND

HOUSEKEEPING

MOTIONS

Lawyers and judges informally classify motions as either contradictory or housekeeping.

Contradictory motions are motions that

directly attack the opposing party’s case.* Examples of contradictory motions include summary judgment motions, motions to dis-

miss or demurrers, and motions to suppress evidence. If one party wins a contradictory motion, the other party’s case is destroyed or

seriously hurt. Thus, a lawyer expects the opposing party to contest a contradictory motion. Contradictory motions are usually based on statutory or case law and raise legal issues that may be the subject of an appeal.

do not directly attack the opposing party’s case. Instead, these motions help in the smooth operation of the court. Common in criminal cases, useful in civil cases, a houseHousekeeping

motions

keeping motion is filed to solve a specific problem. The opposing

4

CHAPTERONE

EE

party rarely opposes a housekeeping motion. A lawyer who does will gain a reputation as a petty obstructionist. Since the judge usually has sole discretion to grant these motions, housekeeping motions are rarely appealed. Sometimes, lawyers call these routine housekeeping motions. Routine means that the judge should quickly and easily grant the motion without the formal hearings and arguments typical of a contradictory motion. Routine does not mean that the motion is common. In fact, many housekeeping motions are uncommon.

For ex-

ample, during a civil trial, a lawyer wanted to show the jury a full-

sized aircraft engine. Worried that court security might not allow the engine into the courthouse, the lawyer filed a motion asking the judge for an order to the court security office to allow the aircraft engine. Although obviously an uncommon

motion, both the law-

yer and the judge treated it as a routine housekeeping motion.

The lawyer will support a contradictory motion and a housekeeping motion with different documents. As a rule of thumb, a contradictory motion needs: *

a request for an order;

*

a statement of facts, affidavit, declaration, or other factual document supporting the motion; and

*

a memorandum

or brief arguing for the order.

A housekeeping motion usually needs: * * *

a request for an order; a statement of facts supporting the motion; and a proposed order.

Whether the lawyer treats a motion as contradictory or housekeeping does not depend on whether the motion involves a substantive or procedural issue. For example, lawyers treat motions to suppress and motions to dismiss for lack of jurisdiction as contradictory motions, although the subject of both motions involves pro-

The Motion Defined 5 a ge el

a a a

cedural rather than substantive law. A lawyer may treat the same motion as contradictory in one situation, housekeeping in another. For example, a motion to continue is usually a minor housekeeping motion. However, a lawyer should treat a motion to continue filed three days before trial against an opponent who opposes that continuance as a contradictory motion. Not all motions fit neatly into one of these two categories. While many summary judgment motions are clearly contradictory and the motion to allow the aircraft engine into the courtroom was clearly a housekeeping motion, some motions are hybrids of both. For example, a motion to change a scheduling order to allow a party to

name an important expert after a cutoff date shares characteristics with both contradictory and housekeeping motions.

JUDGE’S HANDLING OF A MOTION Judges respond to an oral motion by either:

*

immediately granting or denying the motion; or

¢

deferring a decision on the motion to an unspecified later time. When a judge defers the motion to an unspecified later time, usually the burden is on the party making the motion to remake the motion later, either orally or written.

Judges respond to a written motion by: *

immediately granting the motion. This is usual practice for housekeeping motions, unusual for contradictory motions;

*

granting or denying the motion after oral argument by both parties; or

¢

granting or denying the motion after an evidentiary hearing and further briefing by the parties.

THE SUMMARY

JUDGMENT

MOTION

A special class is the motion for a summary judgment. Black's Law Dictionary defines a motion for a summary judgment as a “request

6

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a ee ee ee ee

ee

that the court enter judgment without a trial because there is no genuine issue of material fact to be decided by a fact-finder—that is, because the evidence is legally insufficient to support a verdict in the nonmovant’s favor.”> Summary judgment motions require the highest degree of formality of all motions. Because of this heightened formality, a lawyer filing or opposing a summary judgment motion must scrupulously follow the appropriate rules of civil procedure. This book will discuss these rules, particularly in the drafting of declarations or affidavits in support of the summary judg-

ment motion. Although never used in criminal cases, summary judgments are common in civil cases. In almost every civil suit, the defense will file at least one summary judgment motion before trial. Although less common, plaintiff’s lawyers also file summary judgment motions— primarily to simplify the issues before trial. For example, in a medical malpractice case, a plaintiff sued both a doctor personally and the doctor’s personal corporation. The plaintiff did so because the doctor and the corporation were each insured for a million dollars and if the plaintiff prevailed, the plaintiff could recover up to $2 million from the insurance company. Suing both the doctor and the doctor’s corporation, however, increased the complexity of an already complex case. To decrease the complexity, plaintiff filed a summary judgment motion for an order that if the plaintiff proved at trial that the doctor committed medical malpractice, the doctor’s corporation would also be liable as respondeat superior of the doctor. The judge granted the order, simplifying plaintiff's case for a jury trial. See Appendix A: Plaintiff’s Motion for Summary Judgment. The rules governing summary judgment motions, however, are often too clumsy and cumbersome for other motions. For example,

Federal Rule of Civil Procedure 56(e) requires for summary judgment motions that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” In a summary judgment motion, the lawyers supporting and opposing the motion

een

aR

eS

ee

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The Motion Defined a le

7

must follow this rule exactly. Such a requirement, however, is too strict for many other types of motions. Unfortunately, procedural rules provide little guidance in drafting motions other than summary judgment motions.

THE MOTION

TO SUPPRESS

If the summary judgment motion is the mainstay of civil motions, the motion to suppress evidence is the mainstay of criminal law. Like its civil counterpart, the motion to suppress is a contradictory

motion with the potential to gut a plaintiff’s case. Typically a criminal defense lawyer files a motion to suppress after interviewing the defendant and doing a preliminary investigation. If the motion to suppress makes some minimal showing, the judge holds a suppression hearing where the government puts on its witnesses, usually including the arresting officers, followed by any witnesses for the defendant. After the hearing, the government and the defense law-

yer each file a memorandum

opposing or supporting the suppres-

sion motion. The issue in any suppression motion is whether the government obtained evidence in violation of a constitutional or statutory right. For example, did the police give the defendant a proper Miranda warning before obtaining a statement? Often the defendant is the only witness available to the defense. Must the lawyer, filing a summary judgment motion, include an affidavit or declaration by that defendant? A criminal defense lawyer should avoid filing an affidavit or declaration signed by the defendant. Even if written by the most careful lawyer, affidavits and declarations often contain factual errors. Some criminal defendants are dishonest or have poor judgment. Many are depressed, confused, and dulled by fear. The lawyer often interviews the defendant in a noisy holding cell or through a glass barrier—environments not conducive to the accurate exchange of information. Thus, the lawyer may inadvertently include errors in an affidavit or a declaration supporting the motion.

8

CHAPTER ONE

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Errors in an affidavit or declaration pose at least three risks to the criminal defendant:

*

¢

Impeachment. If the defendant takes the stand, the prosecutor may use the affidavit or declaration to impeach. No lawyer likes watching a prosecutor impeach the defendant with an affidavit that the lawyer wrote. Admissions. Unless a lawyer is extremely careful, the affidavit or declaration may gloss over or wrongly concede facts or issues that the prosecutor may otherwise be unable to

prove.°® ¢

Perjury or Obstruction of Justice Charges. Prosecutors, par-

ticularly federal prosecutors, are increasingly filing perjury and obstruction of justice charges even when they are unable to prove the original underlying offense. Criminal defense lawyers must remember, before having a defendant sign an affidavit or declaration, that it will be reviewed by prosecutors who write indictments for a living.

Several appellate courts hold that a judge may refuse to grant a suppression hearing unless the motion has an accompanying affidavit or declaration signed by someone

with personal knowledge.’

That signer must be one who assumes the risk of perjury prosecution if the affidavit or declaration is false or misleading. In spite of these cases, many trial judges will schedule a hearing for suppres-

sion motions without an accompanying affidavit or declaration. If the judge will schedule a hearing without such affidavit or declara-

tion, the criminal defense lawyer should file the motion to suppress without them.

How does the lawyer find out what the judge will accept? Unfortunately, federal procedural rules provide little guidance. Local court rules, however, may specify what is required. Some local court rules specifically require an affidavit or declaration. Some do not.? The lawyer may also discuss this matter with other criminal defense lawyers, such as the local public defender. Finally, a lawyer may

The Motion Defined 9 enn ee ee

review the court files of local criminal cases to see what the judges are accepting. A lawyer can find local cases through general daily newspapers and other news media. If the local judges are accepting motions to suppress without affidavits or declarations, the lawyer should omit them from the motion.

CIVIL VERSUS CRIMINAL MOTIONS Except for rules governing summary judgment motions, procedures for civil and criminal motions are similar. Advisory Committee Note

1 to Federal Rule of Criminal Procedure 47 states: This rule is substantially the same as the corresponding civil rule (first sentence

of rule 7(b)(1), Federal Rules of Civil

Procedure, 28 U.S.C., Appendix), except that it authorizes the court to permit motions to be made orally and does not require that the grounds upon which a motion is made shall be stated “with particularity,” as is the case with the civil rule. The rule allowing oral motions

in criminal cases makes

sense,

since criminal cases are conducted at a faster pace with considerably more court appearances than a civil case. The distinction between stating the grounds and stating the grounds “with particularity,’ however, makes little practical difference, since any good lawyer will state the grounds for a motion with as much clarity and

persuasion as is needed to win the motion, whether criminal or civil. This book will use examples from both criminal and civil cases, as the same underlying principles govern motion practice in both.

MOTION

TERMINOLOGY

Lawyers and judges use the term motion in several ways. most narrow sense, the term motion refers only to the request order. Thus, lawyers speak of the motion and of the grounds motion, with the motion being the request and the grounds

In the for an for the

being

10

i

CHAPTER ONE — ——————

the facts and arguments supporting the request. Sometimes, however, lawyers use the term motion to refer to the document that contains the request, even

when

the document

contains

both the re-

quest and the grounds. In addition, lawyers also use the term motion to include not only the document that contains the motion, but also the documents that support the motion. Finally, lawyers use the term motion to refer to the granted order. For example, lawyers

say “the judge granted the motion” to mean that the judge issued the requested order. Normally, such subtle distinctions make little practical difference. In writing about motions practice, however, I had difficulty

with this lack of precision. I hope my use of the term motion will not confuse

the reader, even

when

motion containing the motion

the motion

includes

(1) the

and the grounds for the motion,

and (2) the affidavits and memorandum

in support of the motion.

I have tried to avoid mixing these various uses. Notes 1.

Jessica Mirrorb, THE TRIAL OF Dr. Spock, THE REV. WILLIAM SLOANE COFFIN, JR., MICHAEL FERBER, MITCHELL GOODMAN, AND Marcus RASKIN 91 (1969).

2.

Black’s Law Dictionary defines a motion as: “[a] written or oral application requesting a court to make a specified ruling or order.’ Bryan A. Garner ed., BLAck’s Law Dictionary 1031 (7thed. 1999). The Federal Rules state:

An application to the court for made during a hearing or trial, with particularity the grounds order sought. The requirement is stated in a written notice of

an order shall be by motion, unless shall be made in writing, shall state therefor, shall set forth the relief or of writing is fulfilled if the motion hearing of the motion.

Fep. R. Civ. P. 7(b)(1).

An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit. 3.

Fep. R. Crim. P. 47. See, e.g., Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984).

The Motion Defined

11

A contradictory motion is a “motion that is likely to be contested or that the nonmoving side should have an opportunity to contest.” Bryan A. Garner ed., BLAcK’s Law Dictionary

=.

1032 (7th ed. 1999). With his updates

in the seventh edition, Garner has recreated Black’s Law Dictionary as a critical tool for the courtroom lawyer. I refer continually to it both in this book and in my law practice. Id. at 1033. But see Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d

1247 (1968), on remand, 395 F.2d 769 (7th Cir. 1968), appeal after remand, 424 F.2d 1235 (7th Cir. 1970). United States v. Wardlow, 951 F.2d 1115 (9th Cir.), cert. denied, 113 S. Ct.

469 (1993): United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967). See also SUBIN ET AL., FEDERAL CRIMINAL PRACTICE: PROSECUTION AND DEFENSE §§ 15.3-15.5 (1992). See, e.g., L.Cr.R. 12-1.1 (prior 9.2.1) for the U.S. District Court for the Central District of California. See, e.g., DUCrimR

12-1(d) for the U.S. District Court for Utah.

> nied

cuginaes 1 thax mae :

=

nnd

.

Three Critical Factors

I don’t want

to know

what the law is, I want

to

know who the judge is.

Roy M. Cohn! The following three factors guide a lawyer in presenting or Opposing a motion. ¢

The need to influence the judge to grant or deny the motion. This is the most important of the three

factors. In every decision that a lawyer makes in preparing or opposing a motion, the first question a lawyer should ask is: “What will best persuade the judge?” ¢

The need to preserve the record for appeal. The second question a lawyer should ask is: “How can

I preserve this issue for appeal?” ¢

The need to conform with rules of procedures. The final question a lawyer should ask is “What is required by the rules of procedure?”

Thus,

if a lawyer is deciding

whether

to include

an

affidavit with a motion, the three questions that the lawyer should ponder are (1) “Will the affidavit help me persuade the judge?” (2) “Will the affidavit help me preserve this issue on appeal?” and (3) “Do the rules of procedure

13

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or local rules require an affidavit?” If the answer to any of these three questions is yes, the lawyer should include the affidavit.

THE JUDGE’S

MIND

Motions are tools of persuasion. The most important factor in presenting a motion is its impact on the judge’s mind. Motion practice is a contest for the mind of the judge. It is a mistake to think of the judge as a neutral referee awarding a decision to the better attor-

ney. Ultimately, it is immaterial that the first party’s lawyer is brilliant, hardworking, and articulate and the second party’s is stupid, lazy, and a bumbler, if the judge concludes that the facts, law, and justice favor the second. A great lawyer never views motions practice as a contest between opposing lawyers. Instead, the lawyer has

only one opponent, the prejudices and misconceptions of the judge. Thus the saying, “a good lawyer knows the law, but a great lawyer

knows the judge.” Judges are human beings and have follies and strengths found

throughout humanity. The same techniques that persuade all people persuade judges. Lloyd Paul Stryker, an influential mid-twentieth century trial lawyer, wrote:

Judges, like other men, are products of their environment, their education, and inherited predilections; they have their hopes and fears, aspirations and ambitions, and their weaknesses and strengths, their susceptibility (however they resist it), to the impact of public opinion. . . . In short, no matter how intellectually honest a judge may be, he is still not an abstraction but a thing of flesh and blood—in short, a man. For it is human and not divine justice that in your case will be done

and there is quite a difference between the two. How important then is that you should have learned all you can of human nature, for its strange vagaries your client’s liberty will presently depend.’

a

Three Critical Factors

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Greek Model of Persuasion The ancient Greeks, in writing about persuasion, identified three parts of a successful argument. These parts include:

*

Ethos—the credibility of the speaker or writer. Experienced lawyers are mindful of the need to protect and enhance credibility with the judge.

*

Pathos—the

emotional appeal of the argument. Although

most judges pride themselves on being more rational than the average person, experienced lawyers know that judges decide with both the head and the heart. *

Logos—the

logical organization of the facts and of the ar-

gument. A lawyer seeks to organize the facts and the arguments into a rational and logical argument to persuade the

judge.* A lawyer must always be mindful of ethos—his credibility—in

dealing with a judge. One common

complaint of lawyers is that

certain judges seems to favor certain lawyers. But judges, being human, find that some lawyers are more credible than others. Some

of a lawyer’s credibility is beyond the lawyer’s control—the pres-

tige of the lawyer’s firm or client, the lawyer’s law school, the lawyer’s experience, and the lawyer’s fame. But a lawyer can increase credibility with a judge by being well prepared and by being honest with the judge. Experienced lawyers, knowing the importance of credibility, cultivate a reputation for honesty in all dealings with judges. Several years ago, a judge decided to clear his docket of old civil cases. He had his clerk sort through the docket to find cases

where the parties had taken no action during the past year. The judge scheduled a single morning to hear all these inactive cases and issued show cause orders why each case should not be dis-

missed. At the show cause hearing, the judge read through the docket. If the plaintiff failed to answer, the judge dismissed the case. If the

16

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Fe

plaintiff answered, the judge quizzed the plaintiff’s lawyer on why there had been no action in the case. For the first twenty plus cases, each plaintiff’s lawyer stood up and offered excuses, usually attempting to blame the defendant. After each lawyer spoke, the judge encouraged them to act on the case and rescheduled a follow-up hearing six months later. Finally, the judge called an old lawyer’s case. The old lawyer stood up and announced, “I’m sorry Your Honor, I’ve been so busy

I just put the case on the back-burner and forgot about it.” The judge chuckled and rescheduled the old lawyer’s case for a follow-

up hearing just like all the rest. The wily old lawyer, having observed that the judge was only dismissing cases if the plaintiff failed to show up, took an opportunity to build credibility with the judge. The pathos and logos of an argument are intertwined. Although judges pride themselves on being more rational than the average lay person, the lawyer need not make an emotional

speech to in-

voke pathos in the judge. For the modern judicial mind, simple

facts—well presented—have more emotional impact than any direct appeal to emotion. Compare the following two examples.

Example One It was a cold blooded and gruesome murder by a brutal and evil man. It is an outrage. It shocks our community. It cannot be tolerated. There was no mercy shown. Example Two He took the knife and pushed it into her chest just below the ster-

num. He twisted the knife, slicing her pulmonary artery and left atrium. He pulled the knife out, wiping it on her dress.

Note that the recital of facts in Example Two has greater emotional impact than the allegations in Example One. Experienced trial lawyers know the emotional impact that a precise presentation of facts—in a dry autopsy report, medical record, or physiologist’s notebook—can have on a judge or jury. Describing one of Daniel Webster’s closing arguments, James J. Brosnahan, an experienced trial lawyer from San Francisco, stated:

Three Critical Factors ene ere pest nk

17

But Webster at that point is as good as those lawyers can get. His ability to describe the events in a way that make the jury see is the essence of the trial lawyer. It is not so much as we think instinctively that it will be just an emotional description; although there is emotion in his description. It is the unrelenting presentation of accurate facts to move the listener to a conclusion.4

Modern Model of Persuasion Modern social psychology has identified six basic principles of persuasion. These are: *

Reciprocation. People feel obligated to repay what they have

received. If one person does a favor for another, the other will feel obligated to return the favor. This method of persuasion poses ethical problems, at least for gifts. Still, a lawyer ¢

should consider this in the give-and-take of the courtroom. Consistency. People desire to be and appear to be consistent. Public commitment, even minor commitment, directs future action. Pity the lawyer defending a drunk driver in front of a judge who just spoke at a seminar sponsored by Mothers Against Drunk Driving (MADD). The desire for consistency

is one of the underpinnings of our common ¢

law tradition.

Social validation. People in a situation tend to look at what others in the same situation do. If many decide a course of action, others follow because they perceive that the course is

more correct. When faced with a novel case, a judge will look to see how other judges handled the situation. Thus, case law from another jurisdiction, or even a lower court,

¢

persuades. Liking. People are persuaded by those they like. People like others who are physically attractive, who are similar to them, who are complimentary, and who cooperate. All these fac-

¢

tors play in the courtroom, even with judges. Authority. Authority figures persuade people. Although judges are themselves authority figures, judges are impressed

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CHAPTER TWO

a SS A ies ee

*

by police, experts, prestigious or celebrity lawyers, and higher court judges. Relevant cases from the jurisdiction’s courts of appeal are the ultimate authority in the courtroom. Scarcity. People value that which they believe is scarce. Perhaps this explains why judges are more attentive to high publicity cases, unusual cases, or cases involving perceived

important parties.° The mainstay of legal argument, citation to case law, evokes three of the six principles of persuasion—consistency, social validation, and authority. Judges follow prior cases to establish consistency in the law, to be like the judges who ruled in the other cases, and to conform to what the higher court has said.

SHORTCOMINGS

OF BOTH

MODELS

Although lawyers should ponder the Greek and the social psychology models of persuasion in presenting a motion, both are incom-

plete. They fail to account for the judge as an actor with his or her own concepts of justice and law. A judge is not merely a passive recipient of persuasion. A judge comes to a case and a motion with

a predisposition favorable or unfavorable to the motion by virtue of being a judge and by having an individual perception of justice and law. Thus, a lawyer should know both the characteristics of judges

as a class and the unique characteristics of the individual judge hearing the case. Most judges are trained in law, usually being a graduate of a law school. Thus, like most lawyers, judges have a respect for and understanding of case law and statutory interpretation. Judges, like most lawyers, are trained to “think like lawyers.” Judges appreciate legal theory and argument. They are comfortable with the exchange of ideas. They are familiar with the rules of evidence. Many uncon-

sciously use the rules of evidence to evaluate the reliability of evidence, even where the rules of evidence do not apply. Judges share the same mind set and views as the lawyers who appear in front of

them.

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a

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Three Critical Factors 19 co Rts Balk a

Judges are practical men and women who face an ever increasing work load. They are surrounded by television, radio, telephones, e-mail, books, magazines, and the Internet—as well as colleagues, family, and friends—all clamoring for attention. When they receive a motion, they know they must make a decision. Thus, they want to understand what they are being asked to decide. They need to know

the relevant law and facts. They have little time and less desire to read unnecessary words and to interpret vague phrases. Mystic and ambiguous words may have some profound and comforting meaning in music and religion, but irritate an overworked judge. Judges are usually social beings. They want the respect of their peers. They do not like to be reversed on appeal. They depend on their staff and usually want a harmonious working relationship. They are usually loyal to their staff.

A lawyer should remember this when

dealing with the staff. Judges are independent and have discretion in the management of their courts. Even in the same courthouse, three different judges may handle the same motion in three different ways. A good court of appeals will rarely reverse a judge in the exercise of that discre-

tion except when that discretion is abused. Different judges have different backgrounds and interests in the law. One judge may be a former prosecutor with little experi-

ence in civil litigation. Another may be a prior tax specialist who

finds criminal law boring and crude. Still another may be a pure political appointee who never practiced law since graduating from law school. And, yes, a few judges are senile or just plain stupid.

The lawyer must understand the make-up and background of each

judge. Two cases illustrate the importance of understanding the judge.

Case One In 1990, two teenagers put a burning cross on the front lawn of an African-American couple in St. Paul, Minnesota. The city charged the two teenagers with a violation of an ordinance making it illegal to display any symbol or writing that “arouses anger, alarm, or re-

20

CHAPTER TWO

Oe

sentment in others on the basis of race, color, creed, religion or gender.” Ed Cleary, a public defender, handled the defense of one of the teenagers. After researching the law, Cleary decided to challenge the ordinance as a violation of the First Amendment. He later wrote:

As any practicing attorney knows, it is very important to be familiar with the judge presiding over a case. This is particularly true when arguing a dispositive motion challenging a law on constitutional grounds. I had to find some way

to convince Judge Flinn that a true understanding of the First Amendment led inexorably to the striking down of this

ordinance. . . . The burden to be as persuasive as possible was magnified in this case by the political outrage that threatened any decision.® About the hearing on his First Amendment motion, Cleary wrote: Although in my initial research [of relevant Supreme Court First Amendment

cases] I found many

moving passages

written by Justice Brennan, J decided that the words of Justice Kennedy would be much more persuasive to Judge Flinn because of their similar backgrounds.

. . . Although Judge

Flinn listened attentively, he became particularly interested when I ended my arguments with Justice Kennedy’s concurring opinion, which acknowledged the difficulty of decision-making in a controversial case.’ Cleary understood Judge Flinn. In issuing his decision striking down the ordinance, Judge Flinn wrote, “The Court feels that the ordinance is quite clearly unconstitutional and so rules. I do that having full mind of Justice Kennedy’s great agony in the Texas v. Johnson decision dealing with the flag burning.”* The U.S. Supreme

Court later upheld Judge Flinn’s decision.?

Three Critical Factors 21 nreee een nrmeinenitn neem

Case Two A federal judge assigned a lawyer to represent a Native American charged with involuntary manslaughter. The case concerned a fatal car accident on the reservation. The reservation was remote and six hours from the federal courthouse. All the witnesses, including the investigating officers, lived on or near the reservation. Several fact witnesses were reluctant to testify and could easily evade service in the mountainous desert country. The lawyer filed a motion asking the judge to hold the trial near the reservation. In support of that motion, the lawyer argued that it would be easier to move the court rather than to gather all the witnesses and bring them to the federal courthouse. He cited no case law since he believed that the decision was in the sole discretion of the judge. No judge in that federal district court ever held a hearing on the reservation. Yet the lawyer believed he had a chance. Al-

though the judge had a reputation as pro-prosecution, he was young, friendly, and appeared open to innovation. The judge granted the motion. The judge, however, specifically noted that he was not granting the motion for the reasons stated by the lawyer. Instead, the judge was granting the motion because he wanted the federal court to have a stronger presence on the reserva-

tion. Although the defendant entered into a plea agreement with the government, the judge surprised the lawyer by holding the change

of plea hearing on the reservation. As a result, the lawyer was able to take the judge and the prosecutor to the accident site and showed them how the accident took place. After the hearing, the lawyer noticed that the judge, his law clerks, and the court reporter had their kayaks with them. The reservation was near one of the best white water runs in the United States. The judge was an avid kayaker.

PRESERVING THE RECORD

FOR APPEAL

Since the granting or denial of a motion may be the subject of an appeal, the second factor a lawyer considers in writing or opposing

22

CHAPTERTWO

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a motion is the need to preserve the record. As a rule, the best way to preserve an issue on appeal is to present that issue to the trial judge in the most persuasive manner possible. If a lawyer files a motion and supporting documents in a manner designed to persuade the judge to grant the motion, the motion is likely preserved for appeal. Likewise, if a lawyer opposes a motion by filing docu-

ments in a manner designed to persuade the judge to deny the motion, the objection to the motion is likely preserved for appeal. The lawyer who diligently seeks to persuade the trial judge into granting or denying a motion has already taken the most important step

in preserving the record for appeal. Still, certain matters of form make the trial documents easier to handle on appeal. For example, a memorandum of law in support of a motion is almost never included in the record on appeal. Thus, a lawyer should attach any factual documents, such as police reports, affidavits, or expert reports, directly to the motion itself rather than to the memorandum

of law in support of that motion.

In creating a record, a trial lawyer should understand the appel-

lant court’s standards of review. Although the standards of review differ from jurisdiction to jurisdiction, here are some general rules. ¢*

A court of appeals will usually consider only those issues

that were raised in the trial court, except for limited matters of clear error. Thus, a motion unmade is usually a motion lost. An objection unmade is usually an objection lost.

*

A court of appeals will not second-guess the trial judge’s discretion in the management

of the courtroom,

unless the

judge abuses that discretion. Thus, the court of appeals will uphold a judge’s requirements about the form of a motion, unless the requirements

are unsound,

unreasonable,

or ille-

gal.

*

A court of appeals will defer to the trial court judge’s findings of facts but will give little deference to the judge’s findings on the law. On appeal, the lawyer is stuck with the facts presented at trial. Rarely will a court of appeals allow

ea

ee

ers

Three Critical Factors ees

23

a lawyer to add new facts to the record. The lawyer may, however, refine, change, disregard, and add to any legal arguments made to the trial judge. Thus, in motions practice, many trial lawyers will put as much or more effort into preparing the affidavits and statement of facts than in pre-

paring the legal arguments.'° Because of these standards of review, a case may be quite a different creature on appeal than at trial, much as a moth is to a caterpillar or a fly is to a grub. Hotly contested trial issues on admissibility and credibility fade away while seemingly minor legal is-

sues tucked away in the record may explode into importance. A shrewd trial lawyer must be an expert at developing the facts—both in motions practice and at trial—while preserving the important le-

gal issues in the record. A lawyer must know the parts of the record. The record in-

cludes the docket, documents, and transcripts.

The Docket The docket is a chronological listing of the documents in the

court files and a summary of all the hearings and trials. A court clerk writes the docket. The clerk assigns each entry a docket num-

ber and notes the date. For documents, the docket contains a brief description of the document, including its title, the party filing it, and the date filed. For a hearing or trial, the docket contains the name of the judge, the lawyers and parties present, and a brief description of what happened. This entry, called a minute entry, also names the court reporter or refers to a tape of the hearing. Of course, these minute entries are only as complete and accurate as the clerk making the entry. Minute entries can both hide and reveal critical

information. The docket is the index to the court’s file. Most courts now maintain the docket on computers. The clerk will usually print out a copy of the docket upon request. Some are available on the Internet or by a modem service.'' For lengthy or complex cases, lawyers

24

CHAPTERTWO

EEE

often will get their own copy of the docket. Some will add their own notes to their copy of the docket, a useful practice for cases that may go on for years.

The Documents The documents

consist of the motions, affidavits, notices, or-

ders, exhibits, notes, letters, and other papers filed by the parties and the court.

A lawyer needs to be aware that a document given

directly to the judge may not end up in the record. Many a lawyer has returned from a trial or hearing, only to discover the court’s exhibits in his or her own brief case.

A lawyer also must be aware

that the judge does not always see the documents in the record. A

motion may languish unread in the court files. Not all documents received by the court are docketed. Clerks may not always docket letters, endorsements,

and the like. Still,

these documents are kept in the court’s file. Often, a lawyer willing to browse through an entire court file may find some delightful surprises. The Transcripts

Transcripts are not automatically created. One party must arrange for a court reporter to write the transcript. Transcripts may be made at any time, not just for appeal. Transcripts may be used to support a motion. The court reporter prepares transcripts either from tape record-

ings or from the reporter’s own notes. Thus, the lawyer must be aware of what is and what is not recorded. Some courthouses are

wired to record all conversations in the courtroom. Everything in the courtroom is recorded, even the private conversations of the lawyer and the clients in an empty courtroom. In other courtrooms, the court reporter must physically be present to hear the testimony. Sometimes, a court reporter will not hear and record the bench conferences or what is said in the judge’s chamber. In these situations, a lawyer should request the court recorder’s presence if needed.

I

RULES

Three Critical Factors 25 en ee

OF PROCEDURE

The third and last factor in writing the motion is the need to conform the motion to any of the court’s rules of procedure. Although this should be the least important of the three factors, it is the factor that most worries new lawyers, or experienced lawyers in a new court. There is cause for worry. If the lawyer does not follow the rules of procedure, some judges will refuse to consider the motion. Even worse, the court clerk may never send the motion to the judge.

In the best case, the judge or clerk will send it back to the lawyer, noting the corrections needed. The lawyer needs only to refile the

motion with the corrections. In the worst case, the judge or the clerks will ignore the motion. Too late for action, the lawyer will discover that the motion has failed. It is not always easy to find these rules. Although readily avail-

able rules of criminal or civil procedure govern all motions, motions also may depend on rules buried in judicial codes, rules of judicial administration, and local practices. To complicate matters,

some judges and clerks closely follow rules while others ignore them. Even judges in the same courthouse may interpret the rules differently. For example, one judge may treat the local rules merely as suggestions while another judge, perhaps the author of the local rules, requires complete compliance. To avoid problems, the lawyer in a new court should research the rules and consult with local lawyers and court clerks. Note any strange phrases or appendices attached to other lawyers’ motions filed in that court. Most important, if the court has not timely reacted to a motion, find out why. Look at the file. Ask the clerk. Go to the judge’s chamber. Do not let the motion languish until it is too late to correct a problem.

Although the new lawyer may think such rules exist to thwart outsiders, most of these rules have a purpose. These rules standardize the motions so a judge can quickly read and understand them, highlight legal authority so the judge or a clerk can look up critical cases, ensure that the other parties are told of hearings and orders,

26

CHAPTER TWO

ee ee ee

SS

ee

and guarantee that the motion comes in front of the judge at the proper time. Understanding the five hurdles discussed in this book will make it easier to anticipate the local rules. Because lawyers are afraid of violating some unknown rule or

practice, they copy old motions with hackneyed phrases and legalese rather than create new motions that are more persuasive.

Lawyers who copy old motions, however, are as likely to violate an unknown rule of practice as those who draft motions from scratch. First, unless the old motion was specifically written for the particular court, it may not comply with local rules of practice. Motions from form books can violate local rules. Second, the rules change. Third, old forms will often need editing for the new case. After the

editing, the revised form may violate a rule not violated by the old form. Generally rules of procedure govern the formalities surrounding the motions: the captions, the paper size, the type style, the margins, the attorney signature block, the certificate of service. Rarely will the rules directly govern the language of the motion.

Those that do often try to remove excess verbiage too often found in poorly written legal documents. See, e.g., Federal Rule of Appellate Procedure 28(d).'* Thus, the lawyer should write the body of the motion and the supporting documents

in the most clear and

persuasive manner, despite of legitimate concerns rules or practices.

with unknown

Notes 1. Roy M. Cohn, quoted in N.Y. Times Book Rev., Apr. 1 3, 1988, at 24, cited 2. eS)

4.

5. 6.

Wo Cone

in Prep R. SHAPIRO, AMERICAN LEGAL Quotations 205 (1993), Lioyp Paut STRYKER, THE ArT OF ADvocacy 32 (1963). HERBERT J. STERN, TRYING CASES TO WIN 87-88 (1991). James J. Brosnahan, GREAT TRIALS AND GREAT Lawyers, LECTURE FIVE, NINETEENTH CENTURY U.S. TRIALS (1993). Robert B. Cialdini, The Science of Persuasion, Sct. AM. 76-81 (Feb. 2001). Epwarp J. CLEARY, BEYOND THE BuRNING Cross, THE First AMENDMENT AND THE LANDMARK R.A.V. CASE 36 (1994). Shah, at STEAKS. mato or

Three Critical Factors re ee

ee

See

27 ee

R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). Because of the importance of developing the facts at the trial court level, many great trial lawyers gain a reputation, perhaps undeserved, of being strong on the facts but weak on the law. For example, James J. Brosnahan states: [Clarence Darrow] was not a very good lawyer by the standards that most lawyers apply. For example, he wasn’t very interested—as you will see—in the law itself. He didn’t read it very much. That was what gave him so much time to read the classics. That was Clarence Darrow’s passion—ideas and the jury. That was his focus. Brosnahan

added:

However, and here’s his weakness. ... Now Darrow would read forever the history of some scientific subject in a trial, some literary subject in a trial, some economic subject in a trial. He liked to do that. He simply didn’t like to read cases. He couldn’t see the advantage of it and he didn’t do it. He was a willful man. And any lawyer that would observe this would say he was a flawed lawyer. Well, yes, he is a flawed lawyer. He’s one of the greatest flawed lawyers that we ever had. James J. BROSNAHAN, GREAT TRIALS AND GREAT LAWYERS, LECTURE SIX, CLARENCE

Darrow (1993).

. The dockets of most U.S. District, Bankruptcy, and Appellant Courts are available through PACER, at http://pacer.psc.uscourts.gov. . Federal Rule of Appellant Procedure 28(d) reads: (d) References to Parties. In briefs and at oral argument, counsel

should minimize use of the terms “appellant” and “appellee.” To make the briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.” This is also good advice in motions practice.

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The Five Hurdles

The power of clear statement is the great power of the bar.

Daniel Webster! A motion is a request by a party that a court grants an order.

A motion is successful if the motion results in an

order. Before the court grants an order, the motion must overcome

five hurdles.

1.

A party must request the order.

2.

The judge must be aware of the facts that support

3. 4. 5.

the motion. The judge must believe that the law supports the motion. Someone must write the order. Someone must put the motion and its supporting documents before the judge.

When a lawyer understands the first four hurdles, the lawyer will know what documents to prepare to support or oppose a motion. When the lawyer understands the fifth hurdle, the lawyer will know how to shepherd the motion through the court system to make sure that the judge both sees and acts on it.

29

30

CHAPTER THREE

i

THE FIRST HURDLE:

REQUEST

LEER

THE ORDER

The first hurdle is that a party must request an order. This should be done in the first sentence of a motion. The first sentence may be as simple as: ¢

Defendant moves this Court to suppress the evidence found during a search of his car on November 20, 2000.

¢

Defendant moves this Court for a summary judgment dismissing Counts | and 2 of the Complaint.

For the moving lawyer, this first hurdle is the most important of the five hurdles.

THE SECOND

A motion unmade is a motion lost.

HURDLE:

PRESENT THE FACTS

The second hurdle is that the judge must know the facts that sup-

port the motion. For certain motions, the facts are already before the judge. For example, in a motion to dismiss a complaint for failure to state a cause of action, the complaint contains all relevant

facts. Since the complaint is already part of the record, the moving lawyer need not include any additional facts. Most motions, however, require additional facts. Depending on

the type of motion, the jurisdiction, and the judge, a lawyer will present the facts in the one of the following ways.

The lawyer simply may recite the facts in the motion itself. For example, a motion for continuance may read:

Defendant moves this Honorable Court to continue the pretrial conference now set for December 16, 2004. Defendant’s attorney will be involved in a two-week jury trial from December 13, 2004 to December 24, 2004. Such unsupported statement of facts will usually suffice when (1) neither the judge nor the other side will oppose the motion or dispute the facts, (2) the average trial lawyer would have personal knowledge of the facts asserted, or (3) it is the custom or rule of the

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The Five Hurdles 31 hale ide ihc aaa |

Jurisdiction to allow a lawyer to make an unsupported statement for that type of motion.

If these factors are absent, the lawyer must use other ways to put the facts before the judge. One common way for putting facts before the judge is with an affidavit. An affidavit is “[a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.”* In federal court and in some states, a lawyer may use a declaration instead of an affidavit. By using certain magic words, the declaration eliminates the need for a notary signature and seal.’ Since declarations are more convenient than affidavits, affidavits are rarely used in federal courts. Affidavits

and declarations,

however,

are dangerous.

One of

the worst experiences a lawyer can have is to watch the other side impeach a friendly witness with the affidavit that the lawyer wrote. A lawyer should use affidavits and declarations sparingly. Other ways exist to put facts before a judge. The lawyer may use transcripts of earlier hearings and related cases, depositions, admissions, and answers to interrogatories. The lawyer may also use documents such as maps, photographs, expert reports, and business records. Finally, with some motions, the judge may hold an evidentiary

hearing. In this case, the moving lawyer should support the written motion with only sufficient facts to establish a need for a hearing and develop the remaining facts at the hearing itself.

A lawyer opposing a motion will put facts in the record using the same techniques as the moving lawyer. The opposing lawyer should be aware that for certain motions, if the moving party makes some minimal showing, the burden of persuasion shifts to the opposing party. For example, in criminal cases, if the defendant files an adequate motion to suppress evidence, the burden shifts to the prosecution to show that the police obtained the evidence lawfully. In a civil case, a defendant’s summary judgment motion often requires the plaintiff to put facts before the judge sufficient to support

his or her prima facie case.

32.

CHAPTER THREE

a

T

THE THIRD HURDLE: ARGUE THE LAW The third hurdle is that the judge must be convinced that the law supports the motion. The moving lawyer convinces the judge with a memorandum or brief supporting the motion. Likewise, the opposing lawyer will argue against the motion with an opposing memorandum or brief. Not all motions require a memorandum. A memo-

randum is needed if: ¢

The motion is based on statutory or case law rather than

¢

Another party will legitimately oppose the motion; or

¢

Any applicable rule of procedure requires

upon the judge’s discretion (but see Appendix B);

Thus, a contradictory motion usually needs

a memorandum.

a memorandum.

A

housekeeping motion usually does not need a memorandum.

In addition to writing a memorandum, the lawyer must be prepared to talk with the judge about the motion. In both oral argument and other hearings, the lawyer must listen and respond to the concerns that the judge may have about the motion.

THE FOURTH

HURDLE:

PREPARE

THE ORDER

The fourth hurdle is that someone must write the order. Although a judge may make an oral order, most orders are reduced to writing. Someone must write that order. Sometimes it is the judge, sometimes a clerk, and sometimes the lawyer. When the moving lawyer expects the judge to sign an order upon receiving the motion, the lawyer should submit a proposed order with the motion. Thus, the moving lawyer usually includes a proposed order with housekeeping motions and with ex parte motions. If the moving lawyer expects the other side to oppose the motion or for the court to schedule a hearing on the motion, the lawyer need not include an order. However, some experienced lawyers always include an order, even with contradictory motions. These lawyers reason that having an order available for the judge to sign is always wise.

See ee Set EE

THE MOTION AND ITS SUPPORTING

The Five Hurdles CL Ne

33 Bet

DOCUMENTS

A written motion may have up to four parts, each part corresponding to one of the first four hurdles. These four parts are: 1.

the motion itself identifying the party making the request and describing the desired order;

2.

a statement of facts with any needed affidavits, declarations,

or exhibits supporting the motion; 3. 4.

a memorandum of law arguing for the motion; and a proposed order.

Every motion need not have all four parts. As a rule of thumb, a contradictory motion includes:

¢ ¢ *

the motion itself; a statement of facts, affidavits, declarations, or exhibits supporting the motion; and a memorandum arguing for the motion.

A housekeeping motion includes: ¢

the motion

*

a statement of facts supporting the motion; and

itself;

*

a proposed order.

Some motions require less. For example, in many courts, including a proposed order with a motion to continue is unnecessary. These courts already have a standard form for continuing a hearing or trial. In federal criminal cases, although the judges will often grant a defendant’s motion to continue, some prosecutors or judges insist on writing the order to ensure that it conforms to the strict requirements of the Speedy Trial Act.* These prosecutors and judges reason that the party writing the order should be the party who will defend the order on appeal.

34

CHAPTER THREE

a

A lawyer opposing a motion should include:

* *

a statement of facts, affidavits, declarations, or exhibits opposing the motion; and a memorandum arguing against the motion.

Some lawyers will also include a proposed order denying the motion. Although a motion may contain up to four parts, these four parts need not be in one document. Rarely, in fact, are all four parts in one document. Typically, the order is always a separate document because, even if prepared by the lawyer, the judge issues the order. Thus, a lawyer submitting an order would rarely combine an

order with the other parts of the motion.° If one examines any number of successful motions, however, one finds that different lawyers combine the remaining three parts in different ways. There are four common patterns. Each has advantages and disadvantages. These four patterns include: The motion itself, the statement of facts, and the memorandum

each in three or more separate documents. The motion itself with a

brief summary of the grounds for the motion is in one document. The statement of facts is usually in one or more affidavits or declarations submitted with the motion as separate documents. The memorandum is also a separate document, although the memorandum

may also

include a restatement of the facts included in the affidavits or declarations. See, e.g., Appendix A: Summary Judgment Motion.

This is the traditional pattern envisioned by the federal rules and in the sample motions in the appendix of forms following the federal rules. Most summary judgment motions use this pattern. It has flexibility as each document can be handled separately in any later hearings and on appeal. For example, an appealing lawyer will usually include the motion itself, but may or may not choose to include the affidavits or declarations in the record on appeal. The appealing lawyer will include affidavits or declaration, if needed, to establish critical facts. But if, after reviewing the transcripts of any hearing or trial, the lawyer decides that the affidavits or decla-

a

The Five Hurdles

a

35

rations are redundant or even contradictory, the lawyer will not include them in the record. The motion itself and the statement of facts in one document, with the memorandum a separate document. Typically, the first document includes the request for an order in the first sentence followed by a transition after the request that may read, “In support of the motion, defendant states:.” The transition is followed by supporting documents in numbered paragraphs. Each numbered paragraph may refer to one or more attached exhibits such as affidavits, declarations, extracts from transcripts, depositions, admissions, an-

swers to interrogatories, and other documents such as maps, photos, expert reports, and business records. See, e.g., Appendixes B

and C. For example, a motion may read: Defendant moves this court to dismiss the action or to quash the return of service of summons. In support of this motion,

defendant states: 1.

Goodworks,

Inc., is a corporation organized under the laws

of Delaware. See Exhibit A: Articles of Incorporation. 2.

One summer evening, Charlie Mootry, CEO of Goodworks, was working late in his office when... .

The second pattern avoids or minimizes the use and length of potentially dangerous affidavits and declarations. It is often easier to write. The lawyer writes the facts paragraph by paragraph, relying on the documents

that the lawyer has already compiled and

perhaps organized in the desired order. The lawyer puts the facts in a logical order, usually but not necessarily, chronological. It uses less paper, especially for short motions. Some lawyers believe it is more elegant than the first pattern. The motion itself, the statement of facts, and the memorandum of law in one document. This pattern may be used for routine housekeeping motions or for motions where both the facts and memorandum are short. Often, in this pattern, the statements of fact and the

law are intermingled. See Appendix D and the first motion in Appendix E.

36

CHAPTER THREE

ET

The statement of facts and the memorandum in one document with the motion itself being a separate document. This pattern may be used when the moving lawyer expects the judge to hold an evi-

dentiary hearing and requires further briefing before deciding to grant or deny the motion. In this case, the lawyer expects that only

the motion itself and a transcript of the evidentiary hearing will form the record on appeal. Examples include motions to suppress and motions in limine.

THE FIFTH HURDLE:

DELIVER THE MOTION

The fifth hurdle is that someone

must put the motion and its

supporting documents before the judge. The fifth hurdle is different from the first four hurdles. In dealing with the first four hurdles,

the lawyer is concerned with the preparation of the motion and its supporting documents. In dealing with the last hurdle, the lawyer is concerned that the judge actually receives and reads the motion

and its supporting documents. Although the fifth hurdle is implicit in the first four, considering it separately is helpful. The lawyer or a messenger normally files the motion and its supporting documents with the clerk of the court. Usually the court clerk properly processes the motion and delivers it to the judge. Although most lawyers give the process little thought, the lawyer

should be aware of the process for the following reasons: ¢

The lawyer should give certain motions directly to the judge or the judge’s secretary. Ex parte motions are often handled this way.

¢

The lawyer may fail to the follow a rule of procedure. If the

court has not timely reacted to a motion, the lawyer should find out why. The lawyer should not let the motion sit until

¢

it is too late to correct the mistake. Although rare, a clerk or a judge may misfile a document. Again, if the court has not timely reacted to a motion, the

lawyer should find out why.

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The Five Hurdles a

37

In some jurisdictions, the judge will not consider a motion until one party files a notice to submit or a notice for a hearing.

Different courts, even in the same jurisdiction, process motions in different ways. The same court may process different types of motion in different ways. The lawyer must be prepared to shepherd a motion through the court system to make sure that the judge sees and acts on it. In certain cases, the opposing lawyer, rather than the moving lawyer, must shepherd the motion through the court system. For

example, a plaintiff serves defendant with interrogatories. Defendant refuses to answer several interrogatories and files a motion for a protective order. Plaintiff timely responds to the motion and waits for a hearing. Plaintiff is in a jurisdiction that requires a party to file a notice for a hearing after both parties have had an opportunity to brief the issues. Plaintiff assumes that defendant will file a notice for a hearing on its own motion. But defendant has no motivation to do so. Defendant likes the status quo. Defendant need not answer the disputed interrogatories unless the judge rules against de-

fendant on the motion. If defendant has any good-faith basis for the motion, it is unlikely that the judge will impose sanctions as long as the motion is pending. Thus, the plaintiff should file the notice of

hearing rather than wait for defendant to do so.

Notes 1.

Daniel Webster, Letter to R.M. Blatchford, 1849, in Peter Harsey, Reminis-

cences and Anecdotes ofDaniel Webster, cited in FRED R. SHAPIRO, AMERICAN LEGAL Quotations 10 (1993). Bryan A. Garner ed., BLACK’s Law Dictionary 58 (7th ed. 1999).

28 U.S.C. § 1746 (1976). LS: WS: Cassiel, A judge may change a motion to an order. The judge does this by writing ae ee on or stamping the motion with a phrase such as “So ordered” or “It is ordered” and signing it. This should be done only when the motion clearly states the desired order.

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7

The First Hurdle:

Request the Order

Ask, and it shall be given you; seek, and ye shall

find; knock, and it shall be opened unto you. Matthew

7:7

The first and most important hurdle is that the party wanting an order must file a motion. The motion should concisely and completely state the desired order and the

grounds for the motion. An oral motion will roughly follow the same format as a written motion. The motion itself is usually the first document the judge reads. If it is correctly written, the judge should understand

the desired order and the grounds for the

motion, without the supporting affidavits, exhibits, and memorandums.

Unfortunately, many motions are barely

readable. Many lawyers write motions with phrases and formats that hide, rather than clarify, the desired order and the grounds for the motion. The following will im-

prove any motion. ¢

Begin the motion with a short sentence identify-

ing the party making the motion and requesting

the desired order.

39

40

CHAPTERFOUR

ee)

¢ ¢

¢

ee

Eliminate clutter phrases such as “COMES NOW” and “by and through.” Use “pursuant to” sparingly. Avoid the hard-to-read run-on sentences too common in motions practice. Instead, follow the first sentence with several

short sentences summarizing the law and facts that support *

the motion. If possible, write the grounds for the motion so the judge will be inclined to grant the motion, even before reading the supporting affidavits, exhibits, and memorandum.

The first sentence of the motion is the most important. It is the thesis of the motion. Every affidavit, declaration, exhibit, memo-

randum, or argument should support the first sentence. If the motion is appealed, the first sentence will define the issue on appeal. It is the first sentence the judge reads.

The first sentence should: ¢

identify the party making the motion;

e¢

use the verb “moves”

or a synonym

such as “requests,”

“prays,” or “asks”; and ¢

briefly describe the desired order.

Since a motion is a request by a party that the court grant an order, the first sentence starts by identifying the moving party. This

will be a variation of the phrase “Plaintiff [or Defendant] moves this Court to issue an order. . . .” or “Plaintiff requests that this Honorable Court grant an order...

.” or simply “Plaintiffs moves this

Court to. .. “” These and many other variations are acceptable. Where

there is more than one plaintiff or defendant in a case, the particular party must be identified. For example, “Defendant Charlie Mootry prays this Honorable Court for an order. . . 2”' Some lawyers capitalize the party’s name. “Defendant CHARLIE MOOTRY asks this Honorable Court for an order. . . 2” A modern trend is to drop the terms defendant or plaintiff and use only the party name.

The First Hurdle: Request the Order eta eroaepereeennseetarrn pene e eet nas

a The

motion

then describes

the desired

41

order. For example,

“Charlie Mootry moves this Honorable Court for an order suppressing the evidence found by law enforcement officers during a search of his car on November 20, 2000.” Acceptable variations are: “Charlie Mootry moves this Court to suppress the evidence found during a search of his car on November 20, 2000” or “Charlie Mootry

moves to suppress the evidence found during the search of his car on November

20, 2000.” In the last sentence, the court is not spe-

cifically named but it is understood that the court would issue the

order to suppress. Occasionally, an order is too complicated to describe in one sentence. In these cases the first sentence should generally describe the order. Following sentences would describe the order in detail. For example, when one party has failed to provide discovery, the other party may move the court for a range of possible sanctions. The first sentence may read, “Defendant moves this Court to sanction plaintiff for failure to provide discovery.” The motion would then include a detailed listing of the desired sanctions.

Unfortunately, some lawyers clutter the first sentence of a motion with meaningless legal cliches. Even for judges, most motions and supporting documents are dull reading. Clutter makes the documents even more difficult and boring.

The worst is the phrase “COMES NOW.” For example, “COMES NOW

Defendant Charlie Mootry moves

this Honorable Court for

an order suppressing the evidence found by law enforcement officers during a search of his car on November 20, 1997.” Read the

example aloud. Notice that “COMES NOW” changes a clear and complete sentence into a difficult to read incomplete sentence. Another meaningless phrase is “hereby.” For example, “Defendant Charlie Mootry hereby moves this Honorable Court for an order suppressing the evidence found by law enforcement officers during a search of his car on November 20, 1997.” Neither “COMES NOW” nor “hereby” adds meaning to the first sentence. Another cliche is “by and through.” For example, “Defendant Charlie Mootry, by and through his attorney, Earl Rogers, moves

42

CHAPTERFOUR

fe ee ee

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as

this Honorable Court for an order suppressing the evidence found by law enforcement officers during a search of his car on November 20, 1997.2 This is also clutter. Is there any relevance whether this motion was done by and through an attorney? Even if marginally relevant, would even the dullest judge, after examining a motion with the lawyer’s signature and signature block at the end of

motion, fail to understand that the motion was made by and through the party’s attorney? Eliminate the “by and through” phrase. Another possible clutter phrase is “honorable court” as opposed to simply “court.” Form 19 in the Appendix of Forms attached to the Federal Rules of Civil Procedure uses “court” rather than “honorable court.” Many lawyers, however, including me, routinely use the phrase “honorable

court.” In the courtroom,

where

emotions

often are high, a lawyer must show respect for the judge. Using the

phrase “honorable court” 1s a simple method of showing such respect. Still, the word “honorable” could be eliminated. Another common cliche is “pursuant to.” This phrase intends to direct a judge to a statute or a rule that authorizes or explains the

motion. For example “Pursuant to Federal Rules of Civil Procedure 25(a)(1), plaintiffs move

the court for an order substituting Harold

G. Walker, personal representative of the estate of Donald Davis, deceased, as defendant in this case, in the place of decedent.” Unfortunately, many lawyers assume

that “pursuant to” must

be in all motions. Unable to find a relevant statute or rule, these lawyers cite general motions rules. For example, “pursuant to Fed-

eral Rules of Criminal Procedure 47” or “pursuant to Fep. R. Civ. P. 7(b).” Since these rules simply define and describe motions, all motions in federal court can be pursuant to either Criminal Rule 47 or Civil Rule 7(b). Not much better is “pursuant to Fep. R. Crim. P.

12(b)” and the like. Rule 12(b) describe motions that may and motions that must be filed before trial. Since these “pursuant to” phrases add no real information to the motion, these phrases are clutter. Thus, a lawyer should use “pursuant to” only to cite a rule or statute that specifically governs the motion, or show compliance with a specific rule or statute.

The First Hurdle: Request the Order 43 i ee ei ee eee

The motions in Appendixes D and E use the pursuant-to clause because the rule or statute specifically governs the motion. For example, Federal Rule of Criminal Procedure 17(a) requires the court to issue subpoenas

on behalf of a criminal defendant,

Rule

17(b)

requires the costs of the witness to be paid in the same manner in which similar costs are paid in the case of a witness subpoenaed by the government. Rule 17(c) requires the U.S. marshals to serve the subpoenas. These rules specifically govern the motion in Appendix D. Likewise, Federal Rule of Appellant Procedures

10 governs the

transmittal of documents to the court of appeals. Thus, the pursuant-to clause is in the motion in Appendix E. Contrast the motion to dismiss in Appendix C. This motion does not depend on the federal rules, but on the case law applying relevant statutes. Thus, there is no need to use a pursuant-to clause

because no rule or statute specifically governs the motion.

Whether to use the motions in Appendixes A and B is less clear. Maryland Rules 2-501(a) and (f) govern the partial summary judgment motion in Appendix A, but the rules need further citation to

interpret. Likewise, Utah Civil aside the default judgment in interpreted in light of the case Recognize that it is neither include a pursuant-to clause in

Rule 60(b) governs the motion to set Appendix B, but again this rule is law. wrong nor required in any motion to the first sentence of the motion. The

decision should be based on the lawyer’s judgment. The pursuant-

to clause clutters the first sentence but, if it directs the judge to the specific rule or statute that governs the motion, it may be worth the

clutter. The pursuant-to clause is especially useful to show compliance with a rule or statute. For example, Federal Rule of Criminal Procedure 12.2 requires the defendant to notify the prosecutor before trial that the defendant will use an insanity defense or put on expert testimony of the defendant’s mental condition. If the defendant does not comply, the mental health defense is waived. Such notice could read:

44

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CHAPTERFOUR ak vk

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Pursuant to Fep. R. Crim. P. 12, defendant notifies the pros-

ecutor that the defendant intends to rely on insanity at the time of the alleged offense and intends to introduce expert testimony relating to defendant’s mental state. Such clear citation to the rule will avoid any claim by the gov-

ernment that the notice was confusing or inadequate. Many lawyers include a needless “pursuant to” and other clutter phrases out of a sense of security.

A motion with these phrases

worked before. Why take a chance that in eliminating a phrase, the motion may become invalid in some unexpected way? But the problem with using these clutter phrases is that clutter makes the motion more difficult to read and tends to bury important points. Compare the following two examples. Example One COMES

NOW, defendant Charlie Mootry, by and through his attor-

ney, Earl Rogers, hereby moves this honorable court, pursuant to Federal Rule of Criminal Procedure 12((b)(c), to suppress the evidence found by law enforcement officers during a search of his car on November 20, 2000. Example Two

Defendant Charlie Mootry moves

this court to suppress the evi-

dence found by law enforcement officers during a search of his car on November 20, 2000. The second example is much easier to read than the first. The critical phrase “suppress the evidence” is hidden in the first, high-

lighted in the second. The first example has almost double the words of the second—43 compared to 23. But it is not just the additional words that make the first more difficult to read. The first has eight commas, the second only one. Several separate phrases confuse the first example. The judge must

read each phrase and determine

its relationship to every other

The First Hurdle: Request the Order a ee

sceameesmeeeeeeeen en en

45

thought in the sentence. The judge has to parcel out the first to discover its form and its meaning. The second has only one phrase. The judge sees the form of the sentence at a glance and easily grasps its meaning. Miriam Kass, former editor-in-chief of Litigation, wrote: Think of the reader’s mind as a small container. Do not fill it with dead words, bloated sentences, or other garbage that makes reading feel like eating bony fish or fat meat. Garbage hogs the space and wastes the mind’s energies cleaning house.* Lawyers, nervous about eliminating traditional clutter, should

examine the sample motions in the Appendix of Forms attached to the Federal Rules of Civil Procedure. Although these motions are not as clear as they could be, they have no clutter. Form 23, Motion

to Intervene as a Defendant Under Rule 24, reads: E.F. moves for leave to intervene as a defendant in this action, in order to assert the defenses set forth in his proposed answer, of which a copy is hereto attached on the ground that he is the manufacturer and vendor to the defendant, as

well as to others, of the articles alleged in the complaint to be an infringement of plaintiff’s patent, and as such has a

defense to plaintiff's claim presenting both questions of law and of fact which are common

to the main action.

This sample has none

of the clutter phrases—no “by and NOW,” no “honorable court,” “COMES no through his attorney,” and no “pursuant to.” Adding these unnecessary phrases or words would make this motion more difficult to read and understand. Avoid clutter. Form

23, however,

illustrates

a too common

problem

in mo-

tions practice. That is the belief that the request for an order and the grounds for the motion must be in one long, run-on sentence. No

46

CHAPTERFOUR

such rule exists. No judge will read only the first sentence and refuse to consider any point made in the following sentences.

Run-on sentences are hard to read, especially when they present legal concepts. Instead of a run-on sentence, the lawyer should fol-

low the request for the order with several short sentences summarizing the grounds for the motion. Reexamine Form 23 above and compare it with the following.

E.F. moves for leave to intervene as a defendant in this action in order to assert the defenses set forth in his proposed answer. See attached. E.F. is the manufacturer and vendor to the defendant of the articles alleged in the complaint to be an infringement of plaintiff's patent. E.F. has a defense to plaintiff’s claim presenting both questions of law and of fact which are common

to the main action.

With the motion broken into short sentences, the motion becomes much clearer. The judge will have an easier time parceling out its meaning. Avoid run-on sentences. If possible, write the grounds for the motion so the judge will be inclined to grant the motion, even before reading the supporting affidavits, exhibits, and memorandum. The Federal Civil Rules state that a motion “shall state with particularity the grounds therefor” and the Federal Criminal Rules state that a motion “shall state the grounds upon which it is made.’? Black’s Law Dictionary defines ground as “[t]he reason or point that something (as a legal claim or argument) relies on for validity.”° The grounds need not be unclear

or unpersuasive. Consider the following example. Example Three

Defendant Great Benefit moves this Court to dismiss plaintiff Donny Ray Black’s claim. Civil Rule 25 requires a claim to be dismissed if an appropriate party is not substituted for a deceased party within ninety days after a suggestion of death is filed. Donny Ray Black died on July 10, 1996. Great Benefit filed a valid suggestion of

The First Hurdle: Request the Order 47 ee ee ean ee a ee arene

death on July 15, 1996. No party has been substituted for Donny Ray Black, and it has been more than ninety days since Jtlyealas A judge may be inclined to grant this motion, even without reading any accompanying exhibit or memorandum. If the plaintiff does not immediately substitute an appropriate party and if the accompanying exhibits support the facts alleged, the judge will grant

this motion. Even if the plaintiff now substitutes an appropriate party, the judge may still grant the motion or at least require plaintiff’s lawyer to grovel sufficiently before denying the motion. Notice how clearly the second sentence in Example Three ex-

plains Civil Rule 25. Compare this to the same motion made with the traditional pursuant-to phrase. Example Four

Pursuant to Civil Rule 25, defendant Great Benefit moves this Court

to dismiss plaintiff Donny Ray Black’s claim. Donny Ray Black died on July 10, 1996. Great Benefit filed a valid suggestion of

death on July 15, 1996. No party has been substituted for Donny Ray Black, and it has been more than ninety days since July 15. Example Four is less clear and persuasive than Example Three for the following reasons.

¢

Example Three explains the relevance of Civil Rule 25 to

¢

the motion. Example Three has less clutter in the critical first sentence.

¢

Since many pursuant-to phrases do little to help a judge, many judges learn to ignore them. Even where the pursu-

ant-to phrase directs the judge to an specific rule or statute, the judge might ignore it. If reference to the rule or statute is important to the motion, the lawyer should consider putting that information in a separate sentence.

A lawyer may not always be able to write the grounds for the motion in such a clear or persuasive manner. Sometimes a lawyer

48

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ee

must file a motion before the facts of the case have been developed. Thus, the lawyer may need to sacrifice some clarity and persuasiveness in the motion, rather than assert facts that may be false, misleading, or possibly harmful to the case. Still, even in the face of uncertainty, the motion should begin with a short sentence identify-

ing the party making the motion and requesting the desired order. The wording should have no clutter and no run-on sentences.

Since the motion itself may be the only document in the record on appeal, the grounds should be sufficient so that the motion may stand alone without an accompanying brief or affidavit. Consider

the following example. Example Five Defendant moves this Honorable Court to grant a new trial on the following grounds:

1.

Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion by which either party was prevented from having a fair trial.

2.

Accident or surprise, which ordinary prudence could not have guarded against.

3.

Insufficiency of the evidence to justify the verdict or other decision, or that is against law.

4.

Error in law.

Although Example Five tracks the federal rules for the granting of a new trial, it does not specifically explain why the judge should grant a new trial. By claiming everything, this motion provides noth-

ing to help the judge decide whether there was an error that would

require a new trail. Moreover, this broad motion may be insufficient to preserve any issue for appeal. With one important exception, a lawyer should not write such a broad motion. The exception would be if the lawyer is pressed for time. In most jurisdictions, a

lawyer has limited time to file a motion for a new trial. In this case,

The First Hurdle: Request the Order 0 eae a eae

49 ale

a lawyer may file such broad motion to toll the deadline but should follow up the motion with a supplemental motion and memorandum specifically laying out the grounds for a new trial. Finally, in writing the grounds for a motion, avoid overly narrowing the issues. Consider the following example:

Example Six

Defendant Charlie Mootry moves this court to suppress his statement to the police after arresting him on November 20, 2000. The ground for this motion is that the police did not read him his Miranda rights. On appeal, Example Six might preserve only the issue of whether the police read Miranda rights to Mr. Mootry. It may not preserve other grounds for appeal, even with evidence in the record

that the police illegally arrested him and beat him into making a confession. Although unnecessary in most motions, some lawyers will finish a motion with a “therefore clause” followed by a listing of possible orders from which the judge can choose among. This is useful when

the desired order is unclear. For example, consider a discovery dispute where the opposing party resists producing requested information. A range of sanctions exists, from a simple order to produce to an order dismissing the resisting party’s cause of action. In this situation, the lawyer may move generally for an order for sanctions. The motion may start with the following opening sentence. Defendant moves this court to order plaintiff to produce the following requested discovery and to impose appropriate sanctions.

This motion would follow with a statement of facts listing the requested discovery and the defendant’s attempts to resolve the problem. The motion may end as follows: THEREFORE,

1.

Defendant requests the following,

That Plaintiff be ordered to produce the discovery requested.

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a ee en

2.

3.

That Plaintiff reimburse Defendant’s attorney fees in the amount of $1,750.00 as cost for obtaining this discov-

ery. That the Court dismiss Plaintiff’s cause of action. For any other relief that the Court deems proper and prudent.

In the above “therefore” clause, the defendant made four requests. The judge will probably grant the first two requests although the amount of attorney fees may be adjusted. For the first discovery violation, however, the judge will probably not dismiss plaintiff’s cause of action. Still, defendant includes the third re-

quest because the judge may consider such sanction if plaintiff persists in resisting discovery. See, e.g., Appendix B. The last re-

quest is harmless fluff. Some lawyers include such a general request just in case the judge want to impose another sanction against plaintiff. Should a lawyer even retain the last request if it is harmless fluff? In this chapter, I have denounced “comes

clutter phrases such as

now, “by and through his attorney,’ and even “pursuant

to.” To be consistent, I should also denounce the last request. But the last request is near the end of the motion. The first sentence of a motion needs to be as clear and uncluttered as possible. Many judges read a motion as most people read a newspaper. The average reader skims through a newspaper checking the headlines and

the first few sentences of each article. If the article is compelling or holds a special interest, the reader will read the whole article. Likewise, a judge skims through a motion. If the first sentence is clear, the judge will more

easily understand and be persuaded

by the motion. By the time the judge reads through to the end, however, the judge should already understand the motion, even if the last few phrases are mere fluff. Fluff at the beginning of a motion is bloated, deadly clutter. Fluff near the end is reasonably harmless.

The First Hurdle: Request the Order

51

Notes lL The great trial lawyer, Earl Rogers, who practiced in Los Angeles in the early 1900s, defended Charlie Mootry. The prosecution accused Mootry of murdering his wife. “My friends of this jury,” Earl Rogers argued in closing, “you cannot hang even a man as Mootry on the testimony of a pimp, a prostitute and a policeman.” After the jury acquitted him, Charlie Mootry came up to Earl Rogers to shake his hand. Earl Rogers refused. “Get away from me, you slimy pimp,” said Earl Rogers, “‘you’re guilty as hell.” ADELA Rocers ST. JOHN, FINAL VERDICT 97 (1962). Rather than making up a name, I use the name Earl Rogers in memory of a great lawyer. Earl Rogers wrote none of the motions in this book. Miriam Kass, The Ba Theory of Persuasive Writing, in APPELLATE PRACTICE MAanuAt 179 (Priscilla Anne Schwab ed. (1992)). Fep. R. Civ. P. 7(b)(1).

vl

Feb. R. Crim. P. 47. Bryan A. Garner ed., BLAck’s Law Dictionary 710 (7th ed. 1999).

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- In federal courts and in some states, a lawyer may use a declaration instead of an affidavit. By using certain magic words, the declaration eliminates the need for a notary signature and seal.°

A declaration has the following parts: 1. Introduction identifying the declarant. The declarant is the person who signs the declaration.

The facts. Statement of competency. Declaration of perjury. Signature block for the declarant. hd BW A The introduction is similar, but not identical, to the introduction in the affidavit. Since the declarant is not under oath, the introduction may be “I, Charlie Mootry, state the following.’ The statement of facts and the statement of competency remain the same, as does

the signature block. Before the signature block, however, is the declaration of perjury. If the declarant is in the United States or its territories, the declaration reads, “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.” If the declarant is outside the United States, the declaration reads, “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.” A typical declaration is shown in Exhibit 6-4 on the facing page. As with an affidavit, a declaration may incorporate other documents. See, e.g., Appendix D: Motion for U.S. Marshal to Serve Subpoenas and Appendix E: Motions to Correct Record on Appeal.

The Second Hurdle: Affidavits and Declarations 69 ee eSaeseenestesseneere ea ess—o te eesaeie eentet

Exhibit 6-4: Typical Declaration

|, Charlie Mootry, declare the following: 1. | am the defendant this case. The testimony in this declaration is based upon my personal knowledge. | am competent to testify to the matters in this affidavit. 2. lam president and owner of ABC Construction, LLC. See Exhibit 1. ABC Construction does general excavating for water and underground utilities. On March 24, 2000, | was... | declare under penalty of perjury that the foregoing is true and correct.

DATED THIS

day ofApril 2001.

Charlie Mootry Since it is easy to turn any document

federal government

into a declaration, the

makes almost every form it prints a declara-

tion. This includes almost all tax forms, copyright, trademark, or

patent applications, and any federal job application. A lawyer should advise a client to use care in signing any form printed by the federal

government.

PERSONAL

KNOWLEDGE

Affidavits and declarations supporting or opposing a summary judgment motion must be based on personal knowledge. Black’s Law Dictionary defines personal knowledge

as “[k]nowledge

gained

through firsthand observation or experience as distinguished from a belief based on what someone else has said.’”* This definition is somewhat misleading. Although a person may not assert as personal knowledge what another person said, the person may assert as personal knowledge what he heard another person say. For example, Charlie tells Joe that he saw the driver run the red light. Joe

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may not assert as personal knowledge that the driver ran the red light. Joe may assert as personal knowledge that Charlie told him that the driver ran the red light. Although this distinction seems hypertechnical, it has real consequences. Consider the following hypothetical. Hypothetical One

A truck crashes into son’s car at an intersection, killing son. Mother

sues truck driver for wrongful death, alleging that truck driver ran a red light. Mother’s lawyer hires investigator who interviews truck driver. Truck driver admits to investigator that he ran the red light. Later, truck driver files a motion for summary judgment. The mo-

tion includes an affidavit of the truck driver now claiming that the light was green. Can the lawyer answer the summary judgment motion with investigator’s affidavit about truck driver’s prior statement?

Yes. The federal rules require that the affidavit “shall set forth

facts as would be admissible in evidence.”’ The truck driver’s statement to the investigator is admissible as an adverse party admission. At trial, the lawyer could put the investigator on the stand and have him testify about what the truck driver said. Thus, it follows that the investigator should be able to assert, based on his own personal knowledge, that the truck driver admitted running the red light. Hypothetical Two

Assume the same facts as in Hypothetical One. The investigator interviewed six witnesses to the accident. All told the investigator that truck driver ran a red light. The witnesses’ statements to the investigator are pure hearsay. At trial, the lawyer must have the witnesses testify to put their stories into evidence. The witnesses, however, refuse to sign an affidavit. Can the lawyer answer

the sum-

mary judgment motion with the investigator’s affidavit describing the witnesses’ statements?

The Second Hurdle: Affidavits and Declarations 71 Re eee ame eae

This case is tricky. The federal rules require that the affidavit “shall set forth facts as would be admissible in evidence.” If the investigator took the stand, he would not be able to testify about what the witnesses said because such testimony would be pure hearsay without an exception. Some judges would disallow the investigator’s affidavit in ruling on the summary judgment motion because the investigator statement would be inadmissable hearsay. Some judges, however, would allow the investigator’s affidavit because the court grants a sum-

mary judgment motion when there are no genuine issues of material fact. These witnesses’ statements to the investigator show the judge that there is a genuine issue of material fact as to whether the truck driver ran a red light. The investigator actually interviewed

the witnesses and heard their stories. Thus, the investigator may assert, based on his own personal knowledge, that the witnesses made these statements although he could not so testify as to these

statements on the stand. But these statements show that, if this case goes to trial, the lawyer could put on witnesses to testify about the

disputed facts.'° Whether the judge will accept the investigator’s affidavit may depend on when the summary judgment motion is filed. If the motion is filed before discovery, the judge may be more inclined to

allow the affidavit. If the motion is filed after discovery is closed, the judge may be more inclined to reject the investigator’s affidavit. A careful lawyer, representing mother, would arrange to de-

pose the witnesses and would move the court for either additional time to answer the summary judgment

motion or permission to as soon as the deposidepositions the with affidavit supplement the tions are available.'' The lawyer for mother should support the motion for additional time with the notes from investigator’s interviews.

Hypothetical Three Assume the same facts. The lawyer is preparing an answer to the summary judgment motion. The lawyer discovers that the investigator is undercover in another case and will not be available until

72 ce

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after the answer to the summary judgment motion is due. In the lawyer’s file is the investigator’s report, which includes notes about each of the interviews with the six witnesses. Can the lawyer answer with her own affidavit explaining that she hired the investigator and that the investigator sent her this report? The proposed affidavit in this hypothetical is more shaky than the affidavit proposed in Hypothetical Two. Still some judges may accept the report to establish a genuine issue of material fact. Whether the judge accepts this report, however, will depend on the strength of the facts supporting truck driver’s motion and on the status of discovery. The point will be reexamined in Hypothetical

Six below. In Hypotheticals One through Three, the affiant has personal knowledge only that a statement was made. It was the statement itself that established the material fact, in this case that truck driver ran the red light. Often affidavits are merely a way to authenticate the statement that establishes a material fact. A common example is a transcript. Almost every transcript has an affidavit or declaration of the court reporter or typist asserting the accuracy of the transcript. Most lawyers and judges, however, accept a transcript at face value, without questioning or even reading the affidavit or declaration. Hypothetical Four

In certain cases, a judge may accept a document without an affidavit. Assume the same facts as in Hypothetical One. The lawyer has two

documents. The first is a police report and the second is the medical record of the truck driver. In both reports is a statement that the truck driver admits that he ran the red light. At trial, both are admissible if the lawyer lays a proper foundation. In response to the summary judgment motion, the lawyer may submit an affidavit based on personal knowledge that he received the report from the police department and the medical record from the hospital. But can the lawyer answer the motion with these records without an affidavit?

The Second Hurdle: Affidavits and Declarations 73 eee nMenenetehteptie neeeaesaen neen icias oo nnse oe cte

Yes. Although it would be better to support these records with an affidavit, many judges would accept them without. These judges routinely accept a document without foundation if the document appears on its face to be authentic. The police report and the medical records show that, if the case goes to trial, the lawyer could contest

the truck driver’s statements. Compare Hypothetical Four to Hypotheticals One through Three, in which the affidavits are required. These statements were prepared

for litigation under the direction of mother’s lawyer. Thus, the statements are suspect and the lawyer should include an affidavit. Hypothetical Five Assume

the facts in the preceding hypothetical. During a sum-

mary judgment motion, truck driver submits an affidavit claiming that the light was green. Mother submits the police report, the investigator’s report describing the six witness interviews, and the medical records, all without affidavits. The judge denies the sum-

mary judgment motion. At trial, which party is most likely to prevail?

Mother most likely will prevail, at least if her lawyer properly presents the evidence. Most people, comparing the affidavit of the

truck driver to the police report, the medical record, and the six witnesses’ statements, would conclude that the truck driver is lying. This illustrates an important point. An affidavit by an interested party on a material fact is inherently suspect. Almost any other document is more

reliable.

Hypothetical Six

Assume the same facts as in the prior hypothetical, only the truck driver never

admitted

to running the red light. Instead, the truck

driver and all six witnesses agree that the son ran the red light. Still mother, who was not a witness, insists that the truck driver must have run the red light. Can the lawyer put in mother’s affidavit that the truck driver ran the red light?

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pe ES Ue

No. Mother has no personal knowledge that the truck driver ran the red light. Hypothetical Seven

Assume that son’s best friend was in the car and survived the accident. At the accident site, best friend told the police that the son ran the red light. During a deposition, best friend again said that son ran the red light. But now best friend is willing to sign an affidavit claiming that son did not run the red light. Must the judge accept this affidavit as establishing a genuine issue of material fact? No. This is a sham affidavit.

A sham affidavit is an “affidavit that

contradicts clear testimony previously given by the same witness, used in an attempt to create an issue of fact in response to a motion for summary judgment.”'* 7912 Judges need not accept a sham affidavit. Hypothetical Eight Truck driver deposes all six witnesses and all testify that son ran the red light. Mother’s investigator interviews a seventh witness to the accident who says that the truck driver ran the red light. The lawyer is preparing an answer to truck driver’s summary judgment motion.

The investigator is unavailable but the lawyer has the investigator’s notes about the interview. Will the judge accept the lawyer’s own affidavit explaining that she hired the investigator, and the investigator sent her this report? Most judges would refuse to accept the report to establish a genuine issue of material fact. Some judges would refuse because

the affidavit failed to establish personal knowledge although the affidavit is almost identical to the affidavit some judges would ac-

cept in Hypothetical Three. But now the facts supporting the truck driver are much stronger and mother’s facts are much weaker. The real reason that many judges would reject the affidavit is that in face of the other evidence, this affidavit seems akin to the sham affidavit of Hypothetical Seven.

eae

The Second Hurdle: Affidavits and Declarations ripe deceit aandesioncnsacnosonsdnisScchceenioe ancLoneoaienie sine adbeast

75

This hypothetical illustrates an important axiom. The weaker the facts, the more likely the judge will dismiss the case for procedural reasons. Weak facts invite procedural nitpicking.

The best course of action is for mother to arrange to depose the seventh witness and ask for additional time to answer the summary judgment motion.'* Mother should support the motion for additional time with the notes from investigator’s interview. Hypothetical Nine Mother hires an expert who examines the accident site and the police report. Mother’s expert concludes, based on the skid marks, that truck driver ran the red light. This is the only evidence that truck driver ran the red light.

Truck driver hires an expert to review mother’s expert. The truck driver's expert writes a report critical of mother’s expert. After reviewing the report, the truck driver’s lawyer decides to challenge mother’s expert under Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)). In Daubert, the U.S. Supreme Court

gave trial judges a gatekeeping function to exclude unreliable expert testimony. The truck driver’s lawyer files a summary judgment motion. In support of the motion, must truck driver’s expert submit an affidavit based on personal knowledge? No, but who cares. An expert rarely has personal knowledge about the facts of a case. For expert testimony, personal knowledge

is irrelevant. This does not mean, however, that truck driver cannot use the expert’s opinion in a summary judgment motion. The truck

driver need only submit the expert’s report. Often, personal knowledge is irrelevant to the issues the judge must decide.

INFORMATION AND BELIEF Although affidavits or declarations supporting or opposing summary judgment motions require personal knowledge, this is not true for other motions. Affidavits and declarations supporting other motions are often based on information and belief, which is a state-

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ment “based on secondhand

information

that the declarant believes

is true.”’!4

Hypothetical Ten The court appoints lawyer to represent a criminal defendant. After

reviewing the charges and interviewing the defendant, the lawyer decides to move the court to appoint and pay an investigator for the defendant. The lawyer gained most of the information about the case from interviewing the defendant. Since the lawyer does not want to waive any attorney-client privilege, the lawyer does not wish to identify what information came from the defendant. An affidavit in support of this motion may read:

|, Earl Rogers, declare the following: 1. This Court appointed me to represent Charlie Mootry. The testimony in this declaration is based on my information and belief. |am competent to testify to the matters in this declaration.

2. On January 2, 2001, Charlie Mootry was... | declare under penalty of perjury that the foregoing is true and correct.

DATED THIS

day of April 2001. Earl Rogers

Some lawyers include the following statement with every affi-

davit or declaration. “The testimony in this affidavit is based upon my personal knowledge except for those items that are based on my information and belief.” This is improper in an affidavit supporting a summary judgment motion and may be challenged.

SHORTCOMINGS

OF AFFIDAVITS AND DECLARATIONS

A lawyer should use affidavits or declarations cautiously. Two problems plague affidavits and declarations. First, affidavits and decla-

The Second Hurdle: Affidavits and Declarations 77 ntac iot t a cna

rations give the opposing side material that the opposing lawyer may use in an attempt to impeach the affiant or declarant. Second, affidavits and declarations often are unpersuasive. Most judges rec-

ognize them for what they are—self-serving hearsay prepared by a lawyer for litigation. Affidavits and declarations are dangerous; impeachments waiting to happen. One of the worst experiences a lawyer can have is to watch the opposing side impeach a witness with the affidavit the lawyer wrote. At trial, the opposing lawyer will have many documents with a client’s or witness’s prior statements. These documents include answers to interrogatories, depositions, business records, letters, notes, recordings, and confessions. All are sources of impeaching material. But affidavits and declarations are an especially rich source of

impeaching material because they often harbor more factual errors

than other sources. Several factors cause these factual errors. Pressure to Fudge Facts A lawyer must not underestimate the pressure on even the most honest client to fudge the truth in support of a motion. Motions often offer a quick way to dispose of a messy and, often in the client’s mind, groundless lawsuit. Clients, after hearing the other side’s pleas and arguments, conclude that the other side is lying. Thus, they justify fighting fire with fire; lies with lies. Lawyers are also susceptible to such fudging. Lawyers desire to present a motion with the most persuasive facts. The lawyer fails to scrutinize the client’s own statements that are so helpful to the motion. Instead, the lawyers will strengthen the client’s statements. Thus, a lawyer’s fudge and a client’s fudge may add up to a total

falsehood.

Miscommunication Most lawyers draft affidavits or declarations for the client or witness to sign. As a result, errors creep in because of misunderstanding between the lawyer and the witness. Sometimes, this hap-

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pens because a witness is not fully honest with the lawyer. More often, though, the lawyer will make an honest mistake about some fact in writing the affidavit. Even if the witness reads the affidavit before signing it, the witness will either miss the mistake, think it is not important enough to mention, or assume that the lawyer knows something the witness does not. None of these reasons will sound

credible as the witness is being impeached. Recognize that some misunderstandings arise because of the difference between a lawyer’s training and lay people’s perception. For example, lawyers routinely advise clients to plead not guilty at an arraignment, regardless of the evidence. For a lawyer, a not guilty plea means only that the defendant is not releasing the prosecution

from its burden of proof. For a lay person, however, a not guilty plea means that the defendant is denying doing the crime. Thus, many lay people believe that a not guilty plea is a blatant lie. Because of these differences in language, some witnesses will sign an affidavit with a factual error, assuming that the error “legally” means something else. One way to avoid this problem is to have the witness write or

dictate the affidavit. Professor Steven D. Stark advises: So for good writing reasons as well as ethical ones, you want the affidavits you file to sound like the people who signed them. To achieve this, first tell the person submitting the statement what the affidavit will cover. Then turn on a tape recorder and let the person talk. Don’t put words in his or her mouth.

The next step is to transcribe the statement. Then edit it, not for substance but to make it read better. Conversation in stories is heavily edited to take out all the circumlocutions and run-on sentences of ordinary speech; you can do the

same here. What’s more, you want to organize the person’s thoughts so they have some kind of order you can number and put into sections. The resulting affidavit, which sounds like a witness actually spoke the words, will be more credible than one you obviously drafted yourself."

i

ar

The Second Hurdle: Affidavits and Declarations 79 sss st ec eto tsetse ict ssa gbishnadiieeia ee

Following Stark’s advice will help avoid this problem. Still, there

are times that the lawyer must write the affidavit and present it to the witness. In these cases, be careful. Use special care with the language of the affidavit. Affidavits, particularly notary statements, are notoriously legalistic and unreadable. Difficult language discourages the witness from reading the affidavit. The witness will sign the document without thinking, dismissing the affidavit as some meaningless legal mumble-jumble. If the document is clear, the witness may be more inclined to find and correct errors.

Use of Affidavits and Declarations Early in the Case Lawyers file many motions early in the case before the law and

the facts have been developed. Affidavits and declarations filed early in the case are especially prone to error. In the beginning of a case, a lawyer has only the client’s story of what happened. In telling the story, many clients feel a need to sell the case to the lawyer. The

lawyer, desiring to obtain a client, wants to buy the story. Thus, the potential divorce client will discuss her husband’s shortcomings in detail but fail to mention her new boyfriend. Only the more hardened divorce lawyer will ask, “Do you have a boyfriend?” In social and professional

situations,

many

people accept

another’s statement without question. People expect others to put forth their good side. In fact, many are uncomfortable with those too eager to present their shortcomings—their bankruptcies, adulteries, and addictions. Thus, many

seemingly honest people rou-

tinely tell and get away with little lies. They offer excuses. The dog ate my homework.

The check is in the mail. People accept these excuses to avoid social embarrassment. In preparing for trial, however, opposing lawyers will scrutinize the witness’s statement for

impeaching material.

Failure to Recognize Dangers Lawyers and witnesses readily see the dangers in depositions and answers to interrogatories. Lawyers and clients know that the other side conducts depositions and other discovery, at least in part,

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to generate impeaching statements. Thus, the lawyers and witnesses are suitably cautious at depositions and in writing answers to interrogatories. Lawyers and witnesses are often blind, however, to the dangers in affidavits and declarations. In writing affidavits and declarations, lawyers and witnesses focus on selling the motion. They too often fail to consider that they are as likely to be generating impeaching material with an affidavit or declaration as they are in answering discovery.

Differences Between a Motion and the Theory of the Case Often the grounds for a motion may be different than or even

contradict the theory of the case at trial. For example, during a suppression hearing on the voluntariness of a defendant’s confession,

the police testified that the defendant was totally cooperative. At the trial and sentencing, however, police testified that the defendant was evasive and hostile. In a product liability case, defendant filed a motion to dismiss because the forum state lacked jurisdiction over

defendant. Defendant filed an affidavit claiming that her company had never advertized nor done any business in the forum state. The motion was denied. At trial, plaintiff used defendant’s affidavit to impeach defendant’s statement that her company was readily available to assist the defendant in using its products. In presenting and opposing motions, lawyers should never lose sight of what the critical issues will be at trial. exploit the human

A shrewd lawyer may

tendency to color facts by filing a motion on

grounds that contradict the lawyer’s expected theory of the case at

trial. The opposing side may respond with affidavits and evidence that opposes the motion but favors that shrewd lawyer’s trial theory.

MAKING AFFIDAVITS AND DECLARATIONS MORE PERSUASIVE Affidavits or declarations are not a particularly persuasive way to present facts. Most judges recognize them for what they are—selfserving hearsay prepared by the lawyer for litigation. To prove that

The Second Hurdle: Affidavits and Declarations 81 se eset ebintette a ensses ae

they are unpersuasive, consider the following thought experiment. Hypothetical Eleven A judge is considering a motion. At issue is the date that a car was sold. If the car was sold in the summer of 1999, buyer wins. If the car was sold in 2000, seller wins. Seller submits an affidavit, properly notarized, stating, “I sold the car to the buyer in March 2000.” Buyer, however, submits a change of title from the state motor ve-

hicle department showing that seller transferred title to the car to the buyer on July 2, 1999. Who wins?

Almost every judge will credit the change of title over the seller’s statement. They will assume that seller was mistaken or lying. Of

course, an official change of title is particularly persuasive, but the result would probably be similar if the buyer submitted a cancelled check or receipt signed by seller and dated July 2, 1999. An affidavit by an interested party on a material fact is inher-

ently suspect. Almost any other document is more reliable. Judges understand this. At trial, many documents are admissible under hear-

say exceptions, including the police report and the medical records. Yet, with a few narrowly drawn exceptions, affidavits and declara-

tions are not admissible. The exceptions rely on factors of reliability other than the oath or the assumption of the penalty of perjury. The lawyer can minimize the dangers of affidavits and declarations and make them more persuasive by taking the following steps. *

Review every affidavit and declaration with the witness sen-

¢

tence by sentence. Warn of the danger of impeachment. Use care with form affidavits. Form affidavits have stock

phrases such as “petitioner is not presently involved in any other legal action or proceeding.” This may not be true. The

witness and the lawyer may miss such a phrase. Unfortu-

¢

nately, the judge and the opposing lawyer may not. Do not assume. A respectable doctor or accountant may have

a criminal conviction, perhaps even a serious felony conviction. Such clients may be too embarrassed to correct a

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CHAPTERSIX

eer

¢

¢

statement buried in the affidavit that client has never been convicted of a crime. Seek corroborating evidence. Although the lawyer must thoroughly interview the client and friendly witnesses, the interview is just a beginning. If a witness tells the lawyer, “I went to the store and bought a new suit,” the lawyer should consider looking for receipts, credit card statements, cancelled checks, and the suit. Not only will such items help persuade a judge, such items will often jar a witness’s

memory. Use affidavits and declarations sparingly. If possible, use other documents to establish facts. Use affidavits or declarations mainly to authenticate and flesh out these other documents. Consider only using an affidavit or declaration to present a material fact when the fact cannot be established any other way.

A lawyer should support facts with documents in the following order of preference.

1. Court documents such as complaints and motions, especially those containing admissions from the opposing party. 2. Discovery documents such as depositions, admissions, and answers to interrogatories. Also, transcripts of earlier hearings and related cases. 3. Reasonably

reliable third-party documents

such as maps,

photographs, expert reports, police reports, calendars, and business records. 4. Documents prepared by the other side, such as letters, reports, and receipts. 5. Reasonably reliable documents produced by the affiant or declarant such as letters, receipts, journals, day planners,

and logbooks. Because of discovery, the other side often has these documents anyway. 6. Affidavits or declarations by the lawyer or a neutral third party authenticating the above documents.

{eee

The Second Hurdle: Affidavits and Declarations 83 eS a len a tia i al

7. Affidavits or declarations by the client and friendly witnesses authenticating the above documents. 8. Affidavits and declarations fleshing out facts already proven by other documents. 9. Affidavits and declarations supported by reasonably reliable third-party documents such as receipts and cancelled checks. 10. Affidavits and declarations supported by reasonably reli-

able documents prepared by the affiant or declarant. 11. Affidavits or declarations by the client and friendly witnesses

alleging facts unsupported by any other documents.

The

lawyer should use these affidavits or declarations only as a last resort. For example, a buyer’s motion includes, as grounds, the statement, “Seller sold the car to buyer on July 1, 1999. See Exhibits A, B, C, D, & E.” The exhibits are attached to the motion. Exhibit A is

a certified copy of the change of title from the state motor vehicle

department showing that seller transferred title to the car to the buyer on July 2, 1999. Exhibit B is a photocopy of the cancelled check from buyer to seller dated July 1, 1999. Exhibit C is an affidavit of buyer’s lawyer stating that the lawyer received the cancelled check

from seller during discovery. Exhibit D is an affidavit of the buyer

stating that he wrote the check in Exhibit B and recognizes the signature. The affidavit also includes a few sentences

describing

buyer’s day planner. Exhibit E is a photocopy of buyer’s July 1, 1999, entry in his day planner noting, “pick up car from seller.”

Compare this to seller’s affidavit stating, “I sold the car to buyer in March 2000.” Not only is seller likely to lose the motion, seller has lost credibility with the judge and risks impeachment at trial. Note that buyer need never actually state in his affidavit that he bought the car from seller on July 1, 1999. That may be added— but it would be merely fleshing out facts already proven by other documents.

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Of course, not all facts need to be so rigorously proven. If the buyer were resisting a motion to dismiss under the statute of limitations, the buyer would include all of the above documents. If the date of the sale was incidental to the motion or the case, buyer may only have to support the statement with a non-notarized copy of the change of title.

Notes 1.

Informal Conversation with Author, Oct. 6, 1999.

2.

Suzy Piatt, LIBRARY OF CONGRESS, RESPECTFULLY QuOTED 174 (1989).

3. 4.

BryanA. Garner ed., BLAack’s Law Dictionary 58 (7th ed. 1999). ABA CENTER FOR PROFESSIONAL RESPONSIBILITY, ANNOTATED MODEL RULES OF PROFESSIONAL Conbuct 355 (3d ed. 1996). Bryan A. Garner ed., BLAck’s Law Dictionary 415 (7th ed. 1999). 28 U.S.C. § 1746 (1976). Whenever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

ON Ie 7.

¢

Ifexecuted without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”

*

If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature).”

28 U.S.C. § 1746 (1976).

The Second Hurdle: Affidavits and Declarations

©9

85

Bryan A. Garner ed., BLAcK’s Law Dictionary 877 (7th ed. 1999). Fep. R. Civ. P. 56(e). . Compare, e.g., Walker v. Wayne County, Iowa, 850 F.2d 433 (8th Cir. 1988), cert. denied, 488 U.S. 1008 (“The district court’s reliance on inad-

missible double hearsay was not misplaced here.” Jd. at 435) with Morissey v. Procter & Gamble Co., 379 F.2d 675 (1967) (“The letters so introduced were rank hearsay as to the truth of their content, in contravention to Rule

56’s fundamental requirement be sustained by competent and admissible evidence.”

Id. at 677 n.2).

id See, e.g., Hudson River v. Dept. of Navy, 891 F.2d 414 (2d Cir. 1989). Thus, a party seeking such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how

those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.

Id. at 422. . Bryan A. Garner ed., BLAck’s Law Dictionary 58 (7th ed. 1999). See, e.g., Mays v. Hunter, 717 F. Supp. 1247 (S.D. Ohio 1989). . Feb. R. Civ. P. 56(f).

Bryan A. Garner ed., BLAcK’s Law Dictionary 783 (7th ed. 1999). . STEVEN D. Stark, WRITING TO WIN 167 (1999).

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The Second Hurdle: Evidentiary Hearings

I had two great lawyers in a recent case, but I lost. The other guy had one good witness.

Milton Berle! bigs. respond to a contradictory written motion by: *

granting or denying the motion after a hearing in which both parties may orally argue about the issues raised by the motion; or

*

granting or denying the motion after an eviden-

tiary hearing and further briefing by the parties. These two types of hearings are quite different. For

the first, only the lawyer participates by making arguments and answering the judge’s questions. For the second, the

evidentiary hearing, the lawyer must be prepared to present and question witnesses.

Obviously, the lawyer should

know beforehand what type of hearing the judge intends.

Few experiences are more embarrassing to a lawyer than to show up alone or with only a client to a hearing expect-

ing to make a few arguments, only to discover that the judge planned on an full-blown evidentiary hearing with

87

88

CHAPTERSEVEN

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witnesses and exhibits. This does happen. Often courts will send a notice of a hearing to the parties without specifying whether the hearing is evidentiary or not. If the lawyer is uncertain what type of hearing the judge expects, that lawyer better find out. Since a judge almost always conducts a hearing for a contradictory motion, both the lawyer filing the motion and the lawyer opposing must consider the following issues. ¢

Will the judge hold an evidentiary hearing?

¢

Which party has the burden of persuasion?

¢

If an evidentiary hearing is required, do the rules of evi-

dence apply? The first issue is the most critical. Both lawyers must know

whether a judge will hold an evidentiary hearing. If the judge will decide the motion without an evidentiary hearing, each lawyer should ensure that those documents

favoring his or her side are

complete. If the judge will decide the motion only after an evidentiary hearing, the lawyer filing the motion may want to include with the motion only enough information to receive a hearing. The lawyer opposing the motion may want to file only a short opposition to the motion before the hearing.

Whether a judge holds an evidentiary hearing will depend on the type of motion. For example, most judges will hold an eviden-

tiary hearing for a motion to suppress if a criminal defendant alleges any possible grounds for suppression. Almost no judge will hold an evidentiary hearing for a summary judgment motion. Since a summary judgment is granted only when there are no genuine issues of material fact to be decided by the fact-finder, by definition

a summary judgment requires no evidentiary hearing. For certain motions, however, one judge will hold an evidentiary hearing while another judge, even in the same courthouse, will decide the motion without an evidentiary hearing. The second issue—which

party has the burden of persuasion—

is critical in some motions. This is particularly true when the mo-

The Second Hurdle: Evidentiary Hearings ac ee c em oak pees

89

tion shifts the burden to the opposing party. For example, in a criminal case, the prosecution has the burden of proof if a defendant’s suppression motion makes a minimal showing that evidence was illegally obtained. In a civil case, some court cases suggest that a plaintiff opposing a summary judgment motion must do more than merely counter the allegations. The plaintiff must assert sufficient facts to make a prima facie case for each challenged cause of action.? Thus, the practical effect of a summary judgment motion is to shift the burden to the plaintiff to prove a viable cause of action. The third issue—do the rules of evidence apply—arises if the judge holds an evidentiary hearing. For most motions, the rules of

evidence do not apply. The inapplicability of the rules of evidence impact an evidentiary hearing in the following ways. e¢

¢

¢

Relaxation of the restrictions on the form of questions, specifically, leading versus nonleading in the direct examina-

tion. Hearsay is admissible. Although a lawyer should object to some hearsay as inherently unreliable, many judges admit, and sometimes rely on, such hearsay. Foundation requirements are relaxed. Judges, like most reasonable people, will accept documents at face value. For example, a judge may accept business records without testimony from the custodian of records.

The following example illustrates the application of the issues a lawyer should consider. Example One Plaintiff is in a court that follows the Federal

Rules of Evidence.

Certain scientific evidence is critical to plaintiff’s case. Defendant makes a pretrial motion challenging plaintiff’s key expert witness under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial judge mails out a standard order setting a date for a hearing. The order does not specify whether the hearing is evi-

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a

dentiary or merely for oral argument. In replying to defendant's motion, plaintiff must consider: Will the judge hold an evidentiary hearing? The Advisory Committee Notes to the December

1, 2000, amend-

ment to Federal Rule of Evidence 702 states: This amendment makes no attempt to set forth procedural requirements for exercising the trial court’s gatekeeping function over expert testimony. See Daniel J. Capra, The Daubert Puzzle, 38 Ga.L.Rev.

699, 666 (1998) (“trial courts

should be allowed substantial discretion in dealing with

Daubert questions; any attempt to codify procedures will likely give rise to unnecessary changes in practice and cre-

ate difficult questions for appellate review”). Courts have shown considerable

ingenuity and flexibility in consider-

ing challenges to expert testimony under Daubert, and it 1s contemplated

that this will continue

under the amended

Rule.

Thus, for a pretrial Daubert motion, some judges will hold an evidentiary hearing, some will not—ruling only on written affidavits and exhibits. This may be determined by how the defendant or

the judge characterizes the motion. Defendant

may have filed a

summary judgment motion challenging plaintiff’s expert. If the judge treats the motion as a typical summary judgment motion, the judge will not hold an evidentiary hearing. If defendant, however, chal-

lenged plaintiff’s expert in a motion in limine, the judge may or may not hold an evidentiary hearing. But certain judges may hold an evidentiary hearing for all Daubert motions regardless of the form of the motion.

Plaintiff needs to find out what the judge will do. Pity plaintiff’s lawyer if he or she makes or responds to the motion with a cursory statement of facts—expecting to supplement the statement with tes-

timony at an evidentiary hearing—and

the judge decides to rule

The Second Hurdle: Evidentiary Hearings oe

91

without an evidentiary hearing. Likewise, pity plaintiff’s lawyer if he or she comes to the hearing without witnesses only to discover that the judge plans to hold an evidentiary hearing. Which party has the burden of persuasion? Even though defendant made the motion, plaintiff likely has the burden of persuasion. At trial, plaintiff would have the burden of

qualifying this expert. Thus, it can be argued that the burden should

still be on plaintiff before trial. Even if plaintiff lawyer found cases or arguments

suggesting that the burden is on defendant, lawyer

would be wise to prepare for the hearing as if he or she had the burden of qualifying the expert. The plaintiff must defeat this mo-

tion. If defendant wins, plaintiff’s case is gutted. Thus, plaintiff lawyer cannot hold back in defending against the motion, even if defendant’s motion is poorly drafted and the case law puts the burden on defendant. If an evidentiary hearing is required, do the rules of evidence apply?

The answer to this question is straightforward. The Federal Rules of Evidence specifically exclude preliminary questions concerning the

qualifications of witnesses and the admissibility of evidence.’ Thus, plaintiff’s lawyer may present any textbooks, articles, studies, testimonials, or other information that supports the expert, regardless of the Federal Rules of Evidence.

THE EVIDENTIARY HEARING At an evidentiary hearing, a lawyer will use one or more of the following examination techniques. These are: ¢

with Open Questions. An open question invites more than a yes-no answer from a witness. Although associated with direct examination, a mastery of open questions is useful in all phases of litigation, including eviden-

Examination

tiary hearings, discovery, jury selection, preliminary examinations,

and even

cross-examination.

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CHAPTERSEVEN

rere

¢

Examination with Leading Questions. A leading question is “a] question that suggests the answer to the person being interrogated; esp., a question that may be answered by a mere ‘yes’ or ‘no.’’”* A lawyer uses leading questions to

control a witness. ¢

Examination

with Open to Leading Questions. The lawyer

uses open questions to gain information from a witness and

then asks leading questions to pin the witness’s testimony. This technique is excellent both for depositions and questioning of hostile or neutral witnesses during an evidentiary hearing. Lawyers divide all questions into leading questions and open questions. A leading question suggests the answer. An open ques-

tion is nonleading, that is, it does not suggest the answer. A courtroom lawyer must be able to switch from leading to open—or from open to leading—as directed by the judge or as the courtroom situ-

ation requires. Different judges will find different questions as leading. For example, some judges hold that only questions with a statement are leading. Thus, *

*

You went to the store, correct? [leading]

Isn’t it a fact that you went to the store? [leading]

¢

You went to the store? [leading]

¢

Did you go to the store? [nonleading]

The first three include the statement “you went to the store.”

The last does not. Other judges hold that all yes-no questions are leading. These

judges would find “did you go to the store?” leading. These judges have a point. In the fast-paced courtroom, few judges, lawyers, or witnesses hear the subtle difference between “‘you went to the store?” and “did you go to the store?” The effect of the series of yes-no questions is the same no matter how each question is phrased.

The Second Hurdle: Evidentiary Hearings sn

93

In my view, the best approach is to allow one or two yes-no questions—even in the form “you went to the store.” to help develop the testimony in direct—but to classify as leading a series of yes-no questions, regardless of how the questions are framed. The trial lawyer, however, is stuck with whatever view the judge takes. The Advisory Committee Notes to the 1972 Federal Rule of

Evidence 611(c) explains the judge’s discretion over leading questions. “An almost total unwillingness to reverse for infractions has

been manifested by appellate courts.

. . . The matter clearly falls

within the area of control by the judge over the mode and order of interrogation.”

Examination by Open Questions Several years ago, a young prosecutor questioned a police officer during a suppression hearing. The prosecutor asked, “Officer Jones, directing your attention to the night of August 14, 2000, on or about 11:30 p.m., at the corner of Sixth South and Main Street in

downtown

Salt Lake City, what, if anything, unusual happened?”

The officer answered, “Nothing unusual happened.” The prosecutor, caught off guard, stared in stunned silence at the officer. The officer stared back. After a few minutes of painful silence, the judge leaned over to the officer and said, “Okay, noth-

ing happened at the corner of Sixth and Main, but . . .?” Finally, the officer told his story. One of the most important skills a courtroom lawyer must master is how to conduct an examination with open questions. In response to a lawyer’s well-phrased open questions, a witness will share facts that will clinch the case. Unfortunately, many lawyers

stumble through open examination with awkward and poorly phrased questions. These lawyers lack the basic skills to ask open questions. Many are unaware that these basic skills exist—perhaps because the use of such skills appears artless. Yet, with the mastery of a few basic skills, a lawyer should be able to conduct any open examination.

These

skills include:

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2 SS

1. transitions to announce the topics of the examination, 2. proper open questions, and 3.

active listening techniques.

A lawyer uses transitions to orient the judge and the witness to the topics that will be discussed. Perhaps as important, a transition also helps the lawyer keep track of the relevant topics during the

examination. The classic example of a transition was the phrase used by the prosecutor in the above story—‘Directing your attention to... .” But this classic transition has three problems. * ¢

¢

The language is awkward

and stiff. It sounds too lawyer-

like: It includes too many details. If details, such as the date and location are important, then such details should not be thrown away in a transition. If the details are unimportant, they clutter the transition. It fails to give the witness proper guidance. A police officer with experience in the courtroom may know what the prosecutor expects as an answer. But the lay witness often has no idea how to answer this question.

A better transition may

be a simple statement

such as, “Let’s

talk about why you stopped the defendant” or “I want to ask you about what happened at the hospital”—followed tion.

by a short ques-

A more subtle transition may be a yes-no question such as,

“Did you go to the hospital?” Because it is more subtle, it may be less effective in announcing a change of topic to the witness or to the judge. Also, some judges may find such questions objectionable as leading.

With proper transitions, however, the lawyer will easily start an examination and move from topic to topic during an examination without losing either the witness or the judge. A lawyer may move a witness to a time:

“Let’s talk about what happened after you left the school.”

The Second Hurdle: Evidentiary Hearings 95 ee eens

To a place: “I want to ask you what happened at the playground.”

To a document: “IT have a few questions about the contract.” To a legal theory: “Now, let’s discuss your damages.” And to a witness’s background: “Before you tell us what you found, Doctor, I need to ask you a few questions about your qualifications.” With simple transitions, a lawyer will easily lead the witnesses from topic to topic during the examination.

Effective open questions are built around the following six interrogatory words. e

Who?

e

What?

¢

Where?

¢

When?

e

Why?

¢

How?

Thus:

¢ ¢

Who was at the meeting? Who did you talk to about the problem?

¢

What did you do?

¢

And what happened next?

¢ ¢ ¢

Where was he standing? Where is the store located? When did you receive the letter?

¢

When did you arrive?

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ee ee

¢

Why was Dr. Brown at the meeting?

¢ ¢

Why did you do that? How long did the meeting last?

¢

How does that gauge work?

Although these questions are simple in form, they are powerful tools for questioning witnesses. Ninety percent of the questions in an open examination should be built around one of these six interrogatory words. Whenever a lawyer has trouble with the form of a question, the lawyer need only rephrase that question with one of these six interrogatory words. Thus, some experienced lawyers write

these six words on the top of their examination notes. When combined with a transition, questions built from these six interrogatory words unobtrusively and naturally guide the wit-

ness. Consider the following questions to start an examination. Q. I want to ask you about the search of Mr. Reese. Why did you stop his car? When did this happen? Where were you when you first saw his car?

Who else was in the car? What were they doing? How did you stop them? PELL Keep the questions short. Short questions are clear. With short

questions, the lawyer has better control over the witness because the witness readily understands the question and knows what is wanted. Also, witnesses tend to answer short questions with short answers, rather than long narratives. Finally, opposing lawyers make

fewer objections to short questions because the form of the question is less objectionable and because the opposing lawyer has less time to think of an objection.

Although 90 percent of all open questions should be built around the six interrogatory words, the remaining 10 percent may be built around commands

such as:

The Second Hurdle: Evidentiary Hearings er eli a a a al ae a e

“Demonstrate

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97

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Or detailed commands

such as:

“Would you please take this marker and put an X on Exhibit B showing where you were standing.” Used properly, commands witness’s testimony. Commands

are an effective way to highlight a encourage the witness to gesture

or demonstrate, not merely talk. People learn best when they both see and hear testimony. Commands

break up the pace of the testi-

mony. When the lawyer gives the witness

a command, the judge

wakes up and listens—something interesting is happening. Commands gives the lawyer an excuse to have testimony repeated. People, including judges, learn by repetition.

Consider the following example. Q. How big was the opening? A. About two feet. Q. With your hands, would you show us how big the opening

was. [The lawyer holds his hands about two feet apart to show the witness what to do.]

A.

About this far. [The witness holds his hands about two feet

apart. | Q. May the record reflect that the witness is holding his hands about two feet apart. Notice that the witness and the lawyer both announce the dis-

tance as two feet. Both the witness and the lawyer also show the distance with their hands. With only the question, the judge would have heard once that the opening was two feet. With the added command, the judge heard twice that the opening was two feet and saw

the distance

demonstrated

twice.

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If distance is important, always have the witness show the distance. Most people are poor at estimating distance. A witness will say that he was two feet away from the defendant. When asked to demonstrate, the witness will show an actual distance of ten, twenty,

or thirty feet. Even if the witness is that rare individual who can correctly estimate distance, the judge may have trouble visualizing

the distance. Some lawyers use parallel questions. Parallel questions are a creature of the law of evidence. In direct examination, some—but not all—judges will sustain as leading any questions asking for a yes or no answer. Thus, some judges will not allow a lawyer to ask on direct, “Did you go to the store next?” To get around this objection, lawyers developed the parallel question. If a lawyer wants to ask a narrow question on direct, the lawyer will ask, “Did you go to

the store or to the library next?” The final technique that a lawyer should use in open examination is active listening. A lawyer uses active listening: 1.

To set the example for the judge. If the lawyer seems unin-

terested in the witness, the judge will be uninterested in the witness. 2.

To make sure that the answer is right or complete. If the lawyer hears an incomplete or misleading answer, the law-

yer can immediately correct with additional questions. 3.

To highlight jewels. Sometimes the witness uses an especially compelling word or phrase, or the witness gives an important

answer. The lawyer should highlight these jewels. Lawyers listen to make sure the witness gives the right or complete answer. For example, a lawyer wants the witness to tell the judge that the accident happened at 11:00 p.m. So the lawyer asks:

Q. When did the accident happen? A. In August.

The Second Hurdle: Evidentiary Hearings 99 Ca rte

If the lawyer is listening and realizes that the witness did not give the desired answer, the lawyer can quickly follow up. Q. And what time did the accident happen? At 11:00 o’clock at night.

A.

The lawyer got the witness to give the right answer by rephras-

ing the question. The rephrased question went in quite naturally, with no suggestion that the first answer was not the one the lawyer

was seeking. Rarely will the lawyer need to tell the witness that an answer is wrong or that the lawyer is rephrasing the question. Usually the lawyer will get the right answer by just asking a rephrased

question. Sometimes a witness will give a totally wrong answer. Then the lawyer must use more aggressive measures. Such measures include asking leading questions, refreshing memory other means,

impeachment

with documents

or

if necessary, or even asking for a re-

CESS.

Jewels are words or phrases the lawyer wants the judge to remember. People learn by repetition. Thus, if the witness uses a jewel, the lawyer wants the jewel repeated or highlighted. The easiest and

most natural way is simply to repeat the jewel as a question.

And then what happened? I started falling. You started falling?

Ch ei Yeah,

I started falling. It was like there was nothing be-

hind me.

As this example shows, sometimes, in response to this technique, the witness will repeat the jewel. Thus, the phrase is repeated three times. Almost always, the witness elaborates. Sometimes the witness will both repeat and define the word or phrase.

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EE

What did she do? She started sniveling.

Sniveling? Be oe Yeah, sniveling. She started complaining, whining—you know—sniveling. Another similar technique is to ask the witness to define the word or phrase. Q. What do you mean by sniveling? A. You know, whining, complaining.

A final technique is looping—repeating the word or phrases in the follow-up questions. Q. What did she say while she was sniveling? Q. And where were you standing while she was sniveling? Q. Why was she sniveling?

Important answers must be highlighted to ensure that the judge hears the answer. Many lawyers, however, are reluctant to highlight

favorable answers, fearful that the witness will back away from the favorable answer.

These lawyers have some

cause for concern.

Hostile, neutral, and even friendly witnesses who give a favorable statement in one answer may take it back with their next answer.

For example, consider a lawyer questioning a witness about an ac-

cident. The lawyer wants to show the judge that the light was green. What color was the light? It was green. . The light was green? Well, I really wasn’t paying attention. I think it was green. . You think it was green?

enGe ape re . Pm

not sure. It could have been red.

The Second Hurdle: Evidentiary Hearings Se ee a ee ee

101

As a result, some lecturers on trial advocacy advise lawyers to leave good answers alone. For example, Professor Irving Younger States that if a witness gives a great answer during cross, the lawyer should immediately stop the examination to avoid giving the witness an opportunity to explain or clarify the answer.’ Still, even at the risk of losing a great answer, the lawyer needs to highlight the answer. If the answer cannot be highlighted, the lawyer will not be able to keep the answer anyway. Usually on cross, redirect, or in response to the judge’s questions, the witness will explain or change the answer.

Without highlighting or follow-up questions, it is likely that the judge missed the great answer in the first place. Lawyers who read transcripts after a hearing often discover that the great answer the

lawyer thought he heard in court is either unimpressive or garbled. One common

error is for a transcript to miss negative words such

not.” Thus, the testimony will be, “I did not go to as “no,” “never, the store.” The transcript will read, “I did go to the store.” If court reporters miss words, one can assume that judges also miss words. A lawyer should have the ability to examine a witness using only leading questions—that is questions that the witness need answer only yes or no. When done correctly, the witness will answer 99

66

with a series of yeses or noes. For example: You went to the store? Yes: A grocery store? est You bought a toothbrush? yes: And some toothpaste?

ee ae Yes: This technique, often called control cross, is difficult to master. The National Institute of Trial Advocacy and other trial courses teach this technique. Terry MacCarthy, the federal defender in Chicago, has lectured extensively on this subject, and the American Bar Asso-

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ciation distributes a tape of one of his lectures.° This book will not rehash his theories. Anyone desiring to become a trial lawyer should consider his tape or attend a trial course that teaches control cross. Although leading is associated with cross examination of hostile witnesses, a lawyer will sometimes use leading questions even with a friendly witness. For example, a lawyer may use leading questions to quickly establish required but technical background

facts. For example, “You were a resident of this county for over one year before filing this action?” Leading questions are especially useful in dealing with a crying or highly emotional witness. Thus, a lawyer must be prepared to

switch from open to leading questions at any time during an examination. Witnesses, especially client witnesses, are as likely (or even more likely) to start crying unexpectedly or become hysterical in an evidentiary hearing on a motion about a dry matter of procedure as during a highly contested jury trial. Control cross, however, has several shortcomings.

¢

Control cross looks unfair. The crossing lawyer appears arrogant—tossing out a series of trick questions to confuse

the witness. In contrast, the lawyer asking open questions seems to be allowing the witness to tell what happened.

¢

Control cross hides the witness. Advocates of control cross cite as an advantage that the witness is unable to blurt out harmful answers. But control cross also hides the flaws of the witness. Lost are the opportunities for the defendant doctor to laugh off plaintiff’s pain, the child molester to

explain why the five-year-old victim seduced him, the bully to lose his temper. Many lawyers with troublesome witnesses

¢

are quite relieved when the other side crosses with a series of yes-no questions. Control cross can be boring. The lawyer does all the talking, the witness just answers yes, yes, yes. The judge sits

bored—waiting for redirect so the witness can explain or clarify the answers.

The Second Hurdle: Evidentiary Hearings on

INNER

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ree

Control cross puts a heavy burden on the lawyer. The lawyer must essentially give a speech at a fast pace—keeping the judge’s interest while maintaining control over the witness. This can lead to short, ineffective crosses. Control cross cuts off discovery. Often, even an adverse wit-

ness will blurt out information that may be helpful to the motion or even more helpful at the upcoming trial. Stull, leading questions are useful to a lawyer. Judge Herbert Stern summed it up best. The leading question is a tool that enables the advocate to argue his case during cross-examination in ways that are forbidden during opening and direct examination. It is the leading question—not a question, really, but a declaration by the examiner that the court reporter arbitrarily puts a question

mark at the end of—that permits the advocate to address the jury directly, right through the witness. While admonitions or “commandments” to make all questions leading and to routinely confine witnesses to one-word

answers are just plain wrong and simply not achievable, as are many of the other so-called commandments of cross-ex-

amination, it is nevertheless useful for the cross-examiner to learn how to employ this effective weapon of argument dur-

ing cross-examination.’ Changing from open to leading questions is an excellent technique for depositions. The lawyer asks open questions to gain infor-

mation from a witness and then asks leading questions to pin the witness’s testimony. This generates transcripts that the lawyer can

use for impeachment at trial. For example: Who was at the meeting? [Open] Sam Jones, Mark Medley, and Will Smith. Who else was there? [Open]

Nobody.

So just you, BORO

Sam Jones, Mark Medley, and Will Smith were at

the meeting? [Leading]

104 Neen

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ee ee

ee

ee

EEE

A. That’s what I said. Q. So Joe Snead was not at the meeting? [Leading] A. No.

The first two questions are open—to gain information. The last are leading—to lock in the witness’s testimony. Evidentiary hearings share many characteristics with depositions. Evidentiary hearings are often conducted before the lawyers have fully investigated the case. Evidentiary hearings generate transcripts that may be useful as impeachment at trial. In fact, many lawyer use evidentiary hearings as a discovery tool.

VISUAL AIDS Although much has been written about the value of visual aids in trial, lawyers still underutilize these tools both at trial and at eviden-

tiary hearings. Visual aids clarify and explain critical evidence and lend importance to the case. A large or well-done visual aid demonstrates to the judge that the party considers this case or motion im-

portant. Visual aids help to establish intimacy between a witness and a judge. When a witness is showing a visual aid to the judge,

the witness naturally speaks directly to the judge. The judge just as naturally leans to the witness to examine the visual aide. Visual aids also help to relax a witness and establish a witness’s expertise. An inarticulate mechanic will seem knowledgeable as he shows the judge how the engine parts fit together. Since the lawyer and witness are speaking to an audience of one, the judge, visual aids are often easier to use at an evidentiary hearing than at trial. In addition, it is easier to use a visual aid because the evidentiary rules are usually relaxed. Consider the following visual aids.

*

Models and Mock-ups. Models delight many people, including judges. The witness often will establish intimacy with

the judge as the witness uses the model to show the judge what really happened.

ee

*

*

The Second Hurdle: Evidentiary Hearings On

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ee

The Real Thing. Irvin Younger states that the real thing can electrify a courtroom.’ Prosecutors always introduce the weapon used in the crime, even if arguably irrelevant to the issues in the case. Other real things include mounted aircraft engines, machinery, and containers. Use a duplicate if the original is unavailable. Documents. This is one visual aid that lawyers tend to over-

use. Since the audience is a judge of one, there is little need to enlarge documents. Simply hand them to the judge. *

Maps and Diagrams.

Like models,

maps delight many

people. In most metropolitan area, there are specialized map

stores. A lawyer should check out such stores to find out what is available. For example, sets of air photos exist for many areas of the United States and perhaps the world. A lawyer can buy an air photo map of an accident site or scene of a crime to enhance his presentation of evidence. In addition to visual aids, a lawyer should also consider demonstrations that appeal to taste, touch, smell, and sound. Although rarely used, these demonstrations are unforgettable. For example, a

witness claimed not to have noticed spilled hydrochloric puddled at his feet.

acid

A whiff of hydrochloric acid quickly convinced

the judge that the witness was lying. No one overlooks the pungent

stinging smell of hydrochloric acid. A tape recording of a factory floor helped another judge understand why a witness could not hear certain instructions. Notes

1.

MuiLTon Berve, More oF THE Best OF MILTON BERLE’S PRIVATE JOKE FILE 324

(1996). See, e.g., First Nat’] Bank ofArizona v. Cities Serv. Co., 391 U.S. 253. Fep. R. Evin. 104(a) and 1101(d)(1).

Bryan A. Garner ed., BLAck’s Law Dictionary 897 (7th ed. 1999). Ce at Irving Younger, Basic Concepts in the Law ofEvidence: Tape 14: The Ten Commandments of Cross-Examination, National Institute of Trial Advocacy. Any student of trial advocacy should be familiar with Irving Younger’s Ten Commandments of Cross-Examination. The student should

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be aware, however, that many lawyers reject some of these commandments as misleading and unworkable. Overall, though, Younger’s Basic Concepts in the Law of Evidence is excellent. Any serious trial lawyer should listen to Younger’s lecture every few months. Both the American Bar Association and the National Institute of Trial Advocacy distribute tapes of these lectures. Each set of lectures is slightly different from the other, but both cover essentially the same material. 6.

Terrence F. MacCarthy, Tape: The Science of Cross-Examination, American Bar Association, 1992.

7.

HERBERT J. STERN, TRYING CASES TO WIN: Cross-EXAMINATION 5 (1993).

8.

Irving Younger, Basic Concepts in the Law of Evidence, National Institute of Trial Advocacy.

The Third Hurdle: Argue the Law

All of you have been lawyers long enough to know how lawyers and judges go about solving novel problems. How? By the application of reasoning. What kind of reasoning? Legal reasoning. And what is legal reasoning? It is reasoning by false analogy.

That’s how lawyers solve problems.

Irving Younger! Law is whatever is boldly asserted and plausibly maintained.

Aaron

PART ONE: WRITTEN

Burr?

PERSUASION

Several years ago, a lawyer and a senior federal judge

were comparing the then new computer research systems to the traditional law library. The lawyer asked the judge what he thought was the best legal research tool. The

judge pondered the question for a few moments. Then pointing to his head, the judge said, “This is the best legal research tool a lawyer has, his brain.” The third hurdle is that the judge must be convinced

that the law supports the motion. The tool that the lawyer uses to convince the judge is a brief supporting the mo-

tion. These briefs have different names such as memo-

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randum, points of authority, and memorandum of points and authority. Lawyers use these names interchangeably. Brief writing is an opportunity for a lawyer to demonstrate his or her legal skills. Most lawyers know how to write a brief. It is one of the few legal documents a law student writes in law school. Compared to other parts of the motions minefield, such as affidavits and

declarations, few booby traps exist. The only real danger is that the lawyer must not misunderstand or misstate the relevant cases, rules,

and statutes. Such mistakes may not have the same damaging effect as misstatements of facts in a affidavit or declaration, but will hurt the lawyer’s credibility with the judge. Most of all, however, the brief must be persuasive. The lawyer must remember that the brief is for a specific judge with specific concerns about a specific case. The goal of the brief writer is to identify the concerns of the

judge and to address them. Whether one wins or loses a motion depends on the gray matter in the judge’s head.

Not all motions require a brief. A brief is needed if: ¢

the motion is based on statutory or case law rather than upon the judge’s discretion (but see Appendix B: Motion to Set Aside Default Judgment);

*

another party will legitimately oppose the motion; or

*

any applicable rule of procedure requires a legal brief or memorandum.

Thus, a contradictory motion needs a brief.

A housekeeping

motion usually does not.

A typical brief has the following parts: *

statement of facts;

¢ *

legal authority supporting the motion; application of legal authority to the facts of the case; and conclusion.

*

The Third Hurdle: Argue the Law nc i

109

Not all briefs will contain all these parts. If the lawyer has limited time to write a brief, some may skip the application of the legal authority to the facts. In some motions, the lawyer may cover all four parts in one short paragraph. In others, the brief will be fifty or

more pages. If needed, the brief will start with a statement of the case and of the facts. For summary judgment and other motions where the relevant facts are found in more than one document—for example, in

multiple affidavits or declarations, answers to interrogatories, depositions, admissions, and transcripts—a detailed and sometimes lengthy statement of facts is needed. See, e.g., Appendix A. The

brief, however, need not include a statement of facts if the relevant facts are already included in the motion itself or in a single affidavit or declaration attached to a motion. See, e.g., memorandums in Appendixes B and C. A lawyer should remember that a brief may be admissible against the defendant as a party-opponent admission.’ After carefully drafting affidavits and declarations to avoid unfavorable admissions, the lawyer should not lose it in the brief.

A properly written brief applies the facts of the case to relevant statutes and the case law found in published court decisions. The most important court decisions are from the appellant courts in the jurisdiction where the trial court is located. In a Nebraska state court,

the lawyer should cite Nebraska Supreme Court and Court of Ap-

peals decisions. In a Maryland state court, the lawyer should cite the Maryland Court of Appeals and Court of Special Appeals. In a federal court, the lawyer should cite the U.S. Supreme Court or the court of appeals, preferably from the local circuit. Often, the local circuit decisions are clearer and more trial court friendly than Supreme Court decisions. Also, citing the local circuit decisions marks the lawyer as a knowledgeable insider. Since the trial court applies law rather than makes it, the lawyer usually saves policy arguments for the appeal brief. Exceptions may be when the law in a jurisdiction is unclear or when the law is clearly

in the lawyer’s favor but the judge may find the result distasteful.

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Then the lawyer may make a short policy argument after presenting the relevant case law. Unless the application to the facts of the case is clear, the law-

yer needs to explain how the legal authority applies to the case. In some cases, the facts follow a discussion of the relevant legal standard. See the memorandum in Appendix B. In other cases, the legal authority and the facts are blended, so that the relevant facts and law are each discussed intermittently throughout the brief. See memorandum in Appendix C. A lawyer may consider time-lines, charts, and pictures to help communicate

arguments to the judge. Time-lines are effective for

showing when events happened in relation to other events. A timeline may quickly kill a false cause-and-effect argument. Charts are

effective for showing large quantities of data. Pictures show details

that are difficult to describe in words. Many lawyers end the brief with a conclusion. Typically the conclusion is short—one or two sentences reasserting that the court should grant the motion. The conclusion should make clear what the court should do. Three Types of Legal Authority Legal authority supporting a motion tends to fall in one or more of three nonexclusive categories. Each is handled differently. *

Background Authority. These are cases and statutes that outline the elements that a party must prove to win a case or a

motion. Examples include a case that lists the four elements

that a plaintiff must prove for a tort, a statute that lists the three elements that the government must prove to convict a defendant of a crime, or a Supreme Court case that lists two

*

factors the trial judge must balance before issuing a certain order. Persuasive Authority. These are similar cases from jurisdictions other than the court’s own jurisdiction, relevant but

distinguishable cases from the court’s own jurisdiction, leg-

The Third Hurdle: Argue the Law 111 a ee ee

islative history, books and treatises, law review articles, and any other material used to persuade a judge to grant or deny a motion. *

Controlling Authority. This is a case or statute from the lawyer’s jurisdiction that—based upon the undisputed facts in the case—compels

the outcome of the case. An example

is a statute of limitations. If a statute of limitations for a battery is one year and if plaintiff files an action on November 2, 2001, for a battery that took place on October

12,

2000, the court must grant defendant’s motion to dismiss. A lawyer will handle each type of authority differently in the

brief. A lawyer should find background authority and persuasive authority in almost every case. But controlling authority is relatively rare and will not be found for most motions. The most common

and usually the most important type of au-

thority is background authority, which establishes the issues in the case. Although background

authority is the most important, it is

usually the least contested. Generally, both parties and the judge, after reviewing the relevant cases, will come to similar conclusions about the issues of the case. Thus, background cases often can be

presented as black letter law. Consider the following example from a brief in support of a summary judgment motion. Example One To prove fraud, plaintiff most show: ¢

¢

¢

*

Defendant made a false or misleading statement. Defendant either knew the statement was false or misleading, or the defendant made it with reckless disregard for its

truth or falsity. The statement was of material fact. Defendant made the statement with the intent that the plaintiff would rely on the false or misleading representation.

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ee EEEEEEEEEEEEEEEEEEEEEEERE

nn

¢

Plaintiff reasonably relied on the false and misleading rep-

¢

resentation. Plaintiff suffered damages as a result of relying on the false representation.

Taylor v. Gasor, Inc., 607 P.2d 293 (Utah 1990).

Bullets make an easy to read list. Many times such a list is sufficient. With background cases, it is unnecessary to include long quotes, string cites, or detailed analysis of the case law. Instead, the

bulk of the brief will marshal the facts to the factors outlined in the law. The lawyer, however, should use care in citing multiple cases that repeat the same list of factors. On occasion, an appeals court will mindlessly list factors from its earlier cases without paying attention to changes in the underlying law. For example, a federal court of appeals may repeat a three- or four-part analysis of a recurring legal problem, failing to realize that a new Supreme Court ruling has changed the standards for one part of the analysis. A lawyer cites persuasive authority to show the judge how other judges handled motions with facts similar to the case now before the judge. The goal in citing these cases is to encourage the judge to make a favorable ruling. Persuasive authority includes relevant but distinguishable cases from the lawyer’s own jurisdiction, cases from other jurisdictions, legislative history, books and treatises, law review articles, and any other material used to persuade a judge to grant or deny a motion. Unlike background authority, persuasive authority should be analyzed and quoted at length. The persuasiveness of the case or article depends on the reasoning, not merely the holding. One important subclass of persuasive authority includes cases

and rules that establish those matters that are within the judge’s discretion. An example is found in Appendix

B. In this case, the

judge entered a default judgment against a pro se client for failure to answer discovery in a timely manner. After the default judgment, the client hired a lawyer who filed a motion for the court to with-

The Third Hurdle: Argue the Law

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113

draw the default judgment. The case law in this jurisdiction was clear. The decision to withdraw the default judgment was in the trial judge’s discretion, and the appellate court would not reverse unless the judge abused such discretion. In the memorandum, the lawyer readily admitted that the decision was in the judge’s discretion but

quoted liberally from the cases to persuade the judge to withdraw the default judgment. The judge in the actual case did so. Too often, however, lawyers are tempted to overstate the holding of a case. For example, the memorandum in Appendix B, states: The Utah Court of Appeals upheld a trial judge’s decision under Rule 60(b) to relieve a defendant from a default judg-

ment imposed under Rule 37 after repeated discovery violations. Darrington v. Wade, 812 P.2d 452 (Utah App. 1991). Some

lawyers, however, desiring to make the holding sound

stronger will write:

Under Rule 60(b), the Court must relieve the defendant from a default judgment imposed under Rule 37 after discovery violations. Darrington v. Wade, 812 P.2d 452 (Utah App.

1991) Of course, the latter is wishful thinking rather than a statement

of the holding of the case. The lawyer who writes this in a brief will lose credibility with the judge. That lawyer may find, at a hearing on the motion, that the judge will want to argue about what

Darrington really held. By acknowledging up front the judge’s discretion, the lawyer can instead spend the hearing arguing those facts needed to persuade the judge to exercise discretion to withdraw the

default judgment. Another common important type of persuasive authority is a similar case from another jurisdiction. This type of authority is especially valuable when the court’s own jurisdiction has no similar cases. Obviously, well-reasoned cases from a highly prestigious

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ee ————————eeE—E——EEEe—e—E————eE EE —

neighboring court are more persuasive than those from a less prestigious or more distant court. Still, as a rule of thumb, the brief writer uses whatever authority he or she has to support or oppose the motion. If the best reasoned or only case on point is from a remote or less prestigious court, the brief writer should cite it— usually after either citing the closest authority in the writer’s own jurisdiction or acknowledging the dearth of such authority. But what about cases from a lower court in another jurisdiction? For example, should a brief writer, in front of a federal district court judge, cite another federal district court judge from a different district, a state court judge, or even a federal magistrate? The answer of course is

yes—but the writer must make clear that the case is being offered to show how another judge handled a similar situation, rather than as controlling authority. Controlling authority are cases or statutes from the lawyer’s jurisdiction that, based upon the undisputed facts in the case, compel the outcome

of the case. True controlling authority is rare, but a

lawyer needs to know how to handle it in those cases where it arises.

Controlling authority is vexing, not just to the lawyer hurt by the controlling authority, but even to the lawyer helped by it. A

lawyer first finding favorable controlling authority will feel euphoria, especially if that lawyer is inexperienced. The inexperienced lawyer will imagine strutting into court, slamming the case on the opponent’s table, and marching up to the bar to hand the case to the judge. The inexperienced lawyer imagines that the opposing law-

yer will tremble and the judge will nod approvingly as each reads the case. The inexperienced lawyer imagines the tears of joy as the client hears the judge’s immediate favorable ruling. The experienced lawyer will be more subdued. The experienced lawyer will feel like a person carrying an expensive jewel in a dangerous neighborhood. That person is pleased with the jewel but nervous about theft. Likewise, the experienced lawyer will be pleased with the case, but is afraid that a favorable ruling will slip away.

The experienced lawyer knows that the law abhors absolutes. A clear and decisive legal victory may carry its own seeds of destruc-

The Third Hurdle: Argue the Law 115 aaa a a ee

tion. Prosecutors and victim’s right groups, the insurance industry, or trial attorney associations will lobby the legislature if the courts announce a decision that seems too one sided. What the appellant court gives, a legislature may take away. Thus, an experienced lawyer will do the following upon finding either a favorable or unfavorable controlling case. ¢

The lawyer will study the case to make certain that the facts,

issues, and conclusions in the case truly are controlling. Some cases that appear controlling are merely highly persuasive. For example, an appellant case upholding a trial judge’s exercise of discretion does not necessarily require that an-

¢

other trial judge follow the first judge’s example. The lawyer will use Westlaw’s Keysite® and/or Shepherds® to make certain that the case is still valid law.

¢

The lawyer will review any underlying statutes, cases, or

rules that form the basis for the decision. The lawyer considers if any new developments in the law effectively overturns the case.

¢

The lawyer with a favorable case will present the case to the judge as soon as possible. Most judges need time to digest such a case. The lawyer will try to discern any doubts that

the judge has about the case and will prepare additional

memorandum

to address these doubts. See Supplemental

Brief: Appendix C.

The following case illustrates how to handle controlling authority.

Case One In a certain federal district court, an old magistrate handled almost all misdemeanors, including offenses committed at a nearby military base. Under the Assimilated Crimes Act, state crimes committed on federal land in that state are prosecuted in federal court but punished in the same manner as the state would have punished the

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crime. The old magistrate had found a defendant guilty of drunk driving, a state crime, and placed him on three years’ probation. Over a year later, the defendant violated his probation. Meanwhile, the court hired a new magistrate to take some of

the load off the old magistrate. The probation violation case was assigned to the new magistrate. The new magistrate appointed a new lawyer for the defendant. The lawyer researched the cases about the Assimilated Crimes Act? and unexpectedly found a case directly on point written by one of the federal judges in the district. The federal judge held that under the Assimilated Crimes Act, the length of probation was

based

on state, rather than federal

law.° In the

state, the length of probation for the man’s original crime was only

one year. Since the one year was past, the client’s probation had expired and could not be revoked. The lawyer puzzled over the

case. If the case was still good law, this was the law of the federal district court and the client would go free. Was the earlier case still good law? In that case, a federal judge

had overruled the old magistrate’s decision holding that the federal probation length applied. The old magistrate had to know about the case. Yet he ignored it when he gave the client three years’ probation. At the revocation hearing, the lawyer presented the case to the new magistrate. The new magistrate read the case and understood it. The new magistrate also realized that the old magistrate had not followed it. He ordered a recess. The new magistrate went to the

old magistrate with the case. The old magistrate told the new magistrate that the Sentencing Reform Act’ had overruled it. The new magistrate returned to the courtroom and announced his decision. The lawyer listened but glanced at his code book. Congress passed the Sentencing Reform Act before the decision in

the case, not after. The old magistrate was wrong. Instead of arguing, however, the lawyer asked to brief the issue. He believed that the new magistrate needed more time to consider the issue. In the brief, the lawyer wrote but few words explaining the case. Instead, he included a time-line showing the dates of the case and

eens

The Third Hurdle: Argue the Law insaiamnensneananeoeenoeoomaaae en

117

of the Sentencing Reform Act. At the next hearing, the new magistrate, now

confident that the case was still valid, reversed himself

and ended the probation. The lawyer won because he understood the new magistrate’s need for time to assure himself that the case was valid in spite of the old magistrate’s opposition. That lawyer correctly handled the controlling authority.

PART TWO: MATTERS OF FORM With both hands, I carry the bundle to my office and close the door. I read the motion to dismiss with its handsomely

presented and perfectly typed brief, a brief I quickly find to be filled with persuasive arguments against almost everything I said in the lawsuit. The language is rich and clear, as devoid of dense legalese as any brief can be, remarkably well written. The positions set forth are fortified with a multitude of authorities which appear to be squarely on point.

There are fancy footnotes at the bottom

of most pages.

There’s even a table of contents, an index and a bibliography. The only thing lacking is a prepared order for the judge to sign granting everything Great Benefit wants.

John Grisham® The four corners region of Utah, Colorado, New Mexico, and Arizona may be the among the most isolated areas of the lower fortyeight states. This desert canyon land is inhabited by Navajos, Utes, cowboys, prospectors, and survivalists. About ten years ago, a dis-

illusioned ex-public defender from Los Angeles wandered into the region. Seeking simplicity and tranquility but needing to support herself and her family, she set up a small town solo practice. Although this lawyer lives in one of the most isolated regions

of the country, she, with her personal computer and printer, is able to produce more professional looking legal documents than many large city law firms were able to produce only fifteen years ago.

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Pa

a

a

ea

ES

With a computer, the Internet, and a laser printer, all lawyers are able to produce well-researched and attractive documents. In this age, no lawyer should produce a shoddy looking document. All court documents, including the motion and its supporting documents,

require certain formalities. Most courts have rules that

describe these formalities in detail. These rules describe the document’s heading, the attorney signature block, the certificate of service, the paper size, the required margins, and the font size of the print. In addition, many courts have certain idiosyncracies unique to the court or its jurisdiction. For example, courts in some western states require that the lawyer’s name, phone, and address appear on the top left of the first page of any document. See, e.g., Appendixes B to D. New York courts require a notice of hearing on the motion. See Form 19 following the Federal Rules of Civil Procedure. Often a federal court in a certain state will adopt practices from the state including its idiosyncracies. Compare Appendix B with Appendix C. A lawyer must make sure that the motion, its supporting documents, or the documents opposing the motion strictly conform to the rules. Generally these rules are readily available, so a lawyer has little excuse for failing to conform. A clerk or judge may refuse to accept a document that does not comply with the rules.

Almost all courts specify the size of the paper and the margins

for documents filed in that court. Some specify page or word limits. The lawyer should follow these rules exactly. Almost all courts specify the minimum

size font. Few courts

specify the type of font. Font is classified as serif or sans serif. Serif letters have short lines on the upper and lower ends. San serif does

not. Serif type is more formal and thus more authoritarian than sans serif. Serif is also easier to read. Lawyers should use a traditional serif font such as Times New Roman. Some law firms still use oped for typewriters. All the same width. Courier is more than other types. Since most

courier type. Courier type was devel-

letters, including “i” and “m,” have the difficult to read and less authoritarian law firms have laser printers, courier type is obsolete. Of course, laser printers can print all types of ex-

The Third Hurdle: Argue the Law 119 a nreremmnmaeenn_—sanitinsioorias Se tienen easier i

otic fonts, all of which the lawyer should avoid. Italic and bold should be used sparingly for emphasis. Some courts describe the desired heading. Almost all courts, however, accept headings similar to those found in Appendixes A through D. A lawyer or the lawyer’s secretary should develop an attractive heading using the tables function or similar type functions in Word®, WordPerfect®, or other word processing programs. See Appendixes B to E. With typewriters, a vertical line is made by

typing a column of right parentheses. See Appendix A. Every document has a title. The title is a descriptive summary of the document. The court clerk will use the title to describe the document

title in the docket. The title should be long enough to

describe the document and to distinguish it from other similar docu-

ments, yet not be unwieldy. Typical names for motions include Summary Judgment Motion, Motion to Suppress, Motion to Intervene

as a Defendant, or Rule 24 Motion. Documents

in support of the

motion may be titled Points and Authority in Support of Defendant’s Summary Judgment Motion, Affidavit (or Declaration) in Support of Defendant’s Summary Judgment Motion. Sometimes supporting affidavits are labeled simply Affidavit of Charlie Mootry without reference to the motion supported. Later motions

are often labeled as second, third, and so forth,

such as Second Summary

Judgment Motion or Second Motion to

Suppress. Thus, a defendant may file a Summary Judgment Motion, a Second Summary Judgment Motion, and a Third Summary Judgment Motion. Usually, the first motion is not labeled as the first just as one would not label a current and only spouse as a first husband or first wife. The supporting documents for later motions have titles such as Points and Authority in Support of the Second

Summary Judgment Motion. A group of unrelated motions filed in the same document may be labeled as an Omnibus Motion. Omnibus means “pertaining to, including, or dealing with numerous objects or items at once.’ In complex cases involving numerous parties, titles may include the party’s name such as Charlie Mootry’s Motion to Suppress.

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ES

Orders are often simply titled Order, regardless of how many orders are filed. See Appendixes B and E. But see Appendixes A and D for more descriptive titles for the order. Almost all jurisdictions require the lawyer to sign court documents. The signature block should include the date, the name of the lawyer, the law firm, the address, and the telephone number. E-mail

addresses, fax numbers, cell phone numbers, and such are optional, although courts are increasingly delivering court documents via email or fax. Of course, the signature block should have a place for

a signature. See examples of signature blocks in Appendixes A through E.

Almost all court documents require a certificate certifying that the other side has been served. See Appendixes A through C and E for sample certificates of process. Appendix D is a rare example of a document without a certificate of service for the other side. Typically the motion and each of the documents

supporting or oppos-

ing the motion has its own certificate of service. When

a document

is filed, court clerks routinely check the

lawyer’s signature and the certificate of service and will refuse the document if either is incomplete or missing. In the motions minefield,

booby traps exist in the formalities required of every court document. Local rules or other rules of procedure, however, clearly mark out this area. Lawyers have little excuse for mistakes.

A Final Style Note If you, the lawyer, write a phrase that you think is especially clever, funny, or cute, edit it out. If you keep it in, it may come back to haunt you. Such phrases are too easily misunderstood, especially by an opponent who seeks to misconstrue such statements. What seemed funny, clever, or cute to you will seem sarcastic, meanspirited, or confusing to your opponent and to the judge. It is easy to recognize such phrases. You will be unduly proud of it. You will want to read it to your friends and associates. Enjoy your clever work. Read it to your friends and associates. Then edit it out before submitting it to the court.

The Third Hurdle: Argue the Law 121 cae tepstessseoneeeceoresarpeeriptenrectoneoaerassacodawmenteres tereesesc ng,

PART THREE: ORAL PERSUASION Indifference to the inner life of other human beings, ignorance of their feelings, display an entirely warped attitude towards real life, they give rise to a certain blindness. Since the days of Adam and Eve, since the time when one became two, nobody has been able to live without wanting to put himself in his neighbor’s place and explore his situation, even while trying to see it objectively. Imagination,

the art

of divining the emotional life of others—in other words, sympathy—is not only commendable inasmuch as it breaks down the limitations of the ego; it is always an indispensable means of self-preservation.

Thomas Mann!? A lawyer was sitting at counsel table next to his client. The

lawyer sat quietly, with his eyes half shut, listening to the other side

vigorously arguing with the judge. Finally, the client leaned over the lawyer to whisper a few suggestions. Without moving, the lawyer whispered back, “Shut up. We’re winning.” The brief is only one of the two tools that the trial lawyer has. The second tool is the opportunity to talk with the judge about the motion. Lawyers call this opportunity oral argument. Too often, however, lawyers squander the opportunity.

The term oral argument is unfortunate. Too often lawyers, who tend to be argumentative as a breed, perceive oral argument as argument and loudly repeat the points already made in the brief. Instead, lawyers should view oral argument as oral persuasion—an opportunity to engage the judge in a dialogue about the pending motion. In this dialogue, the lawyer should listen to the concerns that the judge has about the motion and respond to those concerns. The lawyer in the magistrate example engaged in such dialogue. He listened to the new magistrate and realized that the new magistrate understood perfectly the controlling case law. The lawyer also understood that the old magistrate had not followed the controlling

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case law. When the new magistrate returned from a recess and stated that the controlling case law had been superseded by the Sentencing Reform Act, the lawyer realized that the new magistrate had consulted with the old magistrate. The lawyer knew that the old magistrate, an experienced jurist and former law professor, had more credibility with the new magistrate than did the lawyer. The lawyer stopped arguing. Instead the lawyer listened carefully to the new magistrate’s hold-

ing and asked to brief the issue. In doing so, the lawyer gained time to marshal the law into a brief that completely demolished the old magistrate’s position. Moreover, the delay gave the new magistrate time to research, ponder, and become comfortable with applying the controlling case law in spite of the old magistrate’s opposition. Too many lawyer toss out blind arguments regardless of the concerns or needs of the judge. But the lawyer in the above two case listened first and understood the judge. Then this lawyer made

his winning argument with surgical precision. Stephen Covey, a leadership guru and author of The Seven Habits of Highly Effective People, wrote: If I were to summarize in one sentence the single most im-

portant principle I have learned in the field of interpersonal relations, it would be this: Seek first to understand,

then to

be understood. This principle is the key to effective inter-

personal communication.!! A wise lawyer seeks first to understand the judge, then to be

understood by the judge. The lawyer should take every opportunity to talk about the issues in a case with the judge, both during formal oral arguments and in informal hearings such as during a scheduling conference.

For example, a federal prosecutor indicted a defendant as a felon in possession of a firearm. The felony was a 25-year-old Oregon conviction. The defendant’s lawyer filed a motion to dismiss the

indictment. See Appendix C. The lawyer, in a brief in support of the motion, argued that “any conviction which has been expunged, or

The Third Hurdle: Argue the Law 123 a rcs Sse ee SNCUS reesei

set aside or for which a person has been pardoned or has had civil rights restored” may not be used against the defendant in a felony possession charge.'’ Under Oregon law, the defendant’s civil rights had been fully restored. During a scheduling conference on the matter, the judge asked the lawyer if he had any motions pending. The lawyer told the judge about the motion. The judge scoffed, stating that even if Oregon had restored his civil right, the defendant had to apply for and re-

ceive relief from the federal government. The lawyer listened and did further research after the hearing. The lawyer discovered that the judge’s information was outdated. Congress had changed the law in 1986 doing away with the necessity of applying for relief from the federal government. The lawyer filed a supplemental brief. After receiving a copy of the supplemental brief, the federal prosecutor dismissed the case. See Appendix C. Oral argument in a trial court is different from oral argument in

an appellate court. An appellate court schedules oral argument after the appeal has been fully briefed. In the appellate court, oral argument is a formal, often stuffy, affair with well-defined rules and protocol. Rarely does the appellate court accept a supplemental brief or further argument after the oral argument ends. In a trial court, however, oral argument is more fluid. A lawyer

may discuss the motion, not in a formal oral argument about the motion, but in a scheduling conference. Trial judges routinely con-

sider supplemental briefs. In the course of the litigation, the same issue may arise several times—in a motion to dismiss or a motion for judgment on the pleadings, a first motion for summary judgment filed before discovery, a second motion for summary judgment after discovery, a motion for a directed verdict or judgment as a matter of law during the trial, and a motion for a new trial after the trial. As the facts develop (and as the judge become educated about the law), a lawyer may prevail on the last motion after losing all

prior motions, even on the same issues. The question arises, when should the lawyer raise an issue? Because ex parte contacts with a judge are severely limited, the

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other side will become aware of it when an issue is raised with the judge. Thus, some lawyers, finding a controlling case, wait to spring it on the court at the last minute to give the other side little time to react. In my experience, this is always a mistake. When the other side is ambushed, the judge is also ambushed, and instinctively upholds the status quo. The judge will distrust the critical case and will find a way to dismiss it. The lawyer should present the issue to the judge as early as possible to give the judge the time to absorb

the supporting case. The lawyer should not spend time worrying about the other side. Motions practice is not a contest between opposing lawyers. Instead, the lawyer has only one opponent, the prejudices and misconceptions of the judge. One fault among lawyers, particularly civil lawyers, is a ten-

dency to make digs or complaints about the opposing lawyer during a hearing in front of the judge. Doing so is usually ineffective and often undermines the lawyer making the complaint. Such digs often irritate the judge and undermine the credibility of the complaining lawyer. A lawyer should avoid criticizing the opposing lawyer unless

the motion is specifically directed to the opposing lawyer’s conduct, such as a motion to compel discovery or a motion for sanc-

tions under Federal Rule 11(C). Even here, a lawyer should restrict himself or herself to laying out the law and the facts about the

opponent’s conduct. A judge who has just sentenced a 19-year-old boy to life in prison for the murder of his pregnant girlfriend may not share a lawyer’s outrage over the opponent’s quirks. Moreover,

if the judge knows and respects the opponent, the first lawyer’s digs may unknowingly

undermine his or her own credibility with

the judge. If the opponent is a jerk, this will become apparent to the judge without comment.

Notes 1. 2.

Basic Concepts in the Law of Evidence, Tape 9: Hearsay. Aaron Burr, quoted in JAMes Partor, Lire & Times OF AARON Burr 149 (7th ed. 1858), cited in FRED R. SHAPIRO, AMERICAN LEGAL Quotations 10 (1993).

The Third Hurdle: Argue the Law

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Conversation between Paul Victor Jorgensen, a Maryland lawyer, and the Honorable Bruce S. Jenkins, Senior District Judge for the United States District Court for Utah during a family gathering. Paul Jorgensen repeated this conversation to me several months later. United States v. Kattar, 840 F.2d 118 (1st Cir. 1988). Government’s briefs from other cases were admissible as party opponent admissions. 18 U5.C..8: 13 United States v. Peck, 762 F. Supp. 315 (D. Utah 1991). 18 U.S.C. § 3551 et seq. JOHN GRISHAM, THE RAINMAKER 241 (1995). RANDOM House WEBSTER’S COLLEGE DicTIONARY 944 (1995). . THOMAS MANN, JOSEPH AND His BROTHERS 324 (1994). _ STEPHEN R. Covey, THE SEVEN Hasit oF HIGHLY EFFECTIVE PEOPLE 237 (1990).

18 U.S.C. § 921(a)(20).

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The Fourth Hurdle: Prepare the Order John Marshall has made his decision: now let him

enforce it! President Andrew

Jackson!

I the court is a business, then the product of the court is the order—specifically the written order. A court does not

hold prisoners. A court issues an order to others to hold a prisoner. A court does not garnish wages. A court issues an order to others to garnish wages. A court does not drive

bulldozers. But a court may issue an order to stop another from bulldozing a road through a wilderness area. In a

motion, it is the order that the lawyer seeks. If a party is entitled to an order, the lawyer must ensure that the order

issued is in fact the order sought. The fourth hurdle is that someone

must write the or-

der. Although a judge may make an oral order, most or-

ders are reduced to writing. Someone der. Sometimes sometimes

must write that or-

it is the judge, sometimes

a clerk, and

one of the lawyers, usually the lawyer who

won the motion. Regardless of who writes the order, however, the winning lawyer should ensure that the order is proper and complete. The lawyer’s win may be negated if the order is ambiguous or incomplete. An order may have the following four parts.

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Address Block. Certain orders must be directed to a specific party. If so, the specific party should be so named in the order. See, e.g., Appendix D: Order directing U.S. Marshall to serve subpoenas. Most orders, however, are not directed to a specific party and need not contain an address block.

¢

See, e.g., Appendixes A, B, and C. Findings of Law and Facts. For many orders, particularly

for a routine housekeeping motions, the finding may be reduced to a simple phrase such as, “For good cause shown.” See, e.g., Appendix D. Other orders—for example, a summary judgment

motion—may

require detailed or often

lengthy findings of law and facts. Some jurisdictions require a separate document for the findings of facts, especially in certain areas of the law such as domestic relations.

¢

The Order Itself. One of the ironies of motions practice is that contradictory orders are often easier to draft than housekeeping orders. For example, an order granting summary

judgment motion can be one sentence long, although the findings of law and facts may be several pages long. An order to the U.S. Marshall directing service on a witness,

however, will usually be several paragraphs long. See, e.g., Appendix D. ¢

Signature Block for the Judge. The lawyer preparing the

order needs to make sure that the judge’s title is correct and the name is correctly spelled. The order should follow the language of any relevant case or statute. For example, a court must certify “that the amount of ex-

cess payment is necessary to provide fair compensation” to pay an

appointed lawyer more than the maximum amounts in the Criminal Justice Act.* Therefore, an order for such compensation should state “CERTIFIED (or ORDERED) that the amount of the excess payment is necessary to provide fair compensation.” Local rules or statutes may have samples of routine orders. A lawyer should follow the sample, making any changes needed to adapt it to the case and

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The Fourth Hurdle: Prepare the Order 129 ee ee a ee oe

to clear up any ambiguity. Some courts also have a standard preprinted form for certain reoccurring orders such as an order for a continuance. When the moving lawyer expects the judge to sign an order upon receiving the motion, the lawyer should submit the motion with a proposed order. Thus, the moving lawyer should include a proposed order with housekeeping motions and with ex parte mo-

tions. If the moving lawyer expects the other side to oppose the motion or for the court to schedule a hearing on the motion, the lawyer need not include an order. Some experienced lawyers, however, always include an order, even with contradictory motions. These lawyers reason that having an order available for the judge to sign is always wise since the judge just might sign the order. If

the judge signs the order, that lawyer wins. Moreover, if the wording of the order is complicated or precise, the lawyer may also wish

to draft the order concurrently with the motion itself. Compare Appendix A: Plaintiff's Motion for Partial Summary Judgment with Order Granting Motion for Partial Summary Judgment. Often, after a hearing, a judge will request the winning party to prepare a written order detailing the ruling that the judge made from the bench. This should be done as soon as possible after the hear-

ing, preferably the same day. The usual practice is for the winning lawyer to send a draft copy of the order for the opposing lawyer to review and sign. Typically the opposing lawyer has only a few days to review the order before the judge signs it. Some judges will sign

the order without waiting for the opposing lawyer to sign it, especially if the opposing lawyer at all delays forwarding the first copy to court. Thus, if the opposing lawyer disagrees with the proposed order, that lawyer should immediately contact the other side and, if

no resolution is made, the court itself. In rare cases, a party will request transcripts of the judge’s ruling to make sure the order properly conforms. In spite of a lawyer’s best intentions, errors may still creep into an order. This need not be a cause for panic if taken care of immediately. Courts long ago set up procedures to correct minor or clerical

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errors. See Federal Rule of Civil Procedure 60(a) and Federal Rule

of Criminal Procedure 36. Similar rules exist in almost every jurisdiction. More serious errors in a written order may require additional hearings. The lawyer seeking to change the order may want to prepare transcripts of the judge’s ruling and be prepared to further litigate the actual terms of the order. Notes 1.

Suzy Pratt, Liprary oF CONGRESS, RESPECTFULLY QuOTED 180 (1989).

Chief Justice Marshall had read the Supreme Court’s opinion in a dispute between the state of Georgia and two missionaries, who had been convicted of and imprisoned for living among the Cherokee Indians. The Supreme Court’s decision was in favor of the missionaries. “The attorneys for the missionaries sought to have this judgment enforced, but could not. General Jackson was President, and would do nothing of the sort . . . so the missionaries languished years in prison.”

Id. 2.

18U.S.C. § 3006A(d)(3) (1996).

The Fifth Hurdle: Deliver the Motion

A

certain lawyer practiced exclusively in a federal dis-

trict court. The federal court required an original and a copy of each document filed. The original was for the court records, the copy was for the judge. After the lawyer filed a motion, the clerk sent the copy to the judge. When the judge’s secretary received the copy of the motion, he or she routinely scheduled a motion hearing and mailed no-

tice of the hearing to the parties. The lawyer gave the matter little thought. A client, who was being sued in state court, came to the

lawyer. The state court had garnished the client’s bank account. Although the lawyer was reluctant to take the case,

the client persisted until the lawyer relented. The lawyer researched the state law on garnishment and determined that the garnishment, as imposed, violated state law. The lawyer

filed a motion to remove the garnishment and release the client’s funds. The lawyer planned to require that the client

use a portion of the released funds to reimburse the lawyer’s fees as the client had no other source of income. The court mailed the lawyer a notice of a scheduling conference. At the conference, the lawyer asked about how

the court planned to handle the motion. The judge asked if the lawyer had filed a notice to submit. The lawyer, who never had to use such notice in federal court, was caught

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off-guard. Since no notice to submit was filed, the judge scheduled the trial to proceed a month later and held that the motion would be considered after the trial. Of course, by then it was too late.

A lawyer can practice for years unaware of hidden booby traps in the motions minefield. As long as the lawyer is in familiar courts and files familiar motions, the dangers are remote.

Should the law-

yer, however, litigate in an unfamiliar court or in a different area of the law, the lawyer may inadvertently encounter a hidden booby trap.

The fifth hurdle is that someone must put the motion and its supporting documents before the judge. This area of the motions minefield seems benign, but it poses real danger to the lawyer and the lawyer’s client. In the first four hurdles, the lawyer is concerned with the prepa-

ration of the motion and its supporting documents. With this hurdle, the lawyer is concerned that the judge actually receives and reads the motion, and schedules an appropriate hearing. How a court processes a motion after it is filed varies from jurisdiction to jurisdiction. Even within the same jurisdiction, a court

may process different motions differently depending on the type of case or the type of motion. For example, the same court may pro-

cess motions for criminal cases differently than motions for civil cases. The court may process a motion about domestic relations or

matter of testate differently than other civil matters. The court may process ex parte motions differently than most other motions. The lawyer must be prepared to shepherd a motion through the court system to make certain that the judge sees and acts on it. The following is a partial list of procedures used in different courts. ¢

Automatic.

In many courts, the filing clerk automatically

forwards a copy of any newly filed document to the judge. In some jurisdictions, each party must submit two copies of each document, the original for the court file and a copy for the judge. Lawyers like this system because the lawyer need only file the documents. This system, however, requires the judge, the judge’s secretary, or a clerk to maintain all the documents about a motion until all parties have had an op-

The Fifth Hurdle: Deliver the Motion 133 Sear eresiasiattenatShesitieieeeneceeeaneicherrare coonotanetae TR a ate VERRAN) mamenenae racsncint SH

*

portunity to respond. This system puts the burden on the court to schedule a hearing. Roll Call. In many criminal cases, and in a few fast-track civil cases, each case has regularly scheduled hearings, sometimes only a few weeks apart. For example, in a typical criminal case, the prosecutor files an indictment and schedules an arraignment. At the arraignment, the court schedules a pretrial hearing. At the pretrial hearing, the court schedules another pretrial hearing or trial. At each of these hearings or just before, the judge reviews the file. If there is a new motion, the judge sees and acts on it. If the judge needs additional time to consider the motion, the court will schedule a motions hearing. This system works for criminal or fast track civil litigation. It does not work for typical civil cases where hearings are scheduled months or years apart.

e

Ex Parte. A lawyer filing an ex parte motion takes the mo-

tion directly to the judge’s chambers. Either the judge or the judge’s secretary receives the motion. The judge reads the motion and either signs the order or rejects the motion. The

lawyer or the judge then files the motion and signed order ¢

with the court clerk. Notice of Hearing. When the lawyer files a motion, the clerk schedules a hearing. A notice of hearing is attached to and is part of the motion itself. Form

19 following the Federal

Rules of Civil Procedure includes such notice.

Please take notice, that the undersigned will bring the above motion on for hearing before this Court at Room___, United States Court House, Foley Square, City of New York, on the

Ay Ol aan

aLee,

at 10 o’clock in the forenoon of the day or as soon

thereafter as counsel can be heard. Federal

Rule of Civil Procedure

7(b)(1) states that the

motion itself may be combined with the notice of hearing on motion. Motions from New York have, or are, a notice of

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a hearing. Outside of New York, many courts, including many

federal courts, do not follow

this procedure.

Some

courts that do not normally require a notice of hearing on most motions,

¢

however,

may require such notice on show

cause orders and injunctions. Motion to Submit or Motion for a Hearing. Some courts require that the party making the motion has the responsibility to file a motion to submit or a motion for a hearing

after both sides have had a chance to respond to the motion. See Appendix B. The notice to submit requests that the court clerk send the motion, with all supporting and opposing affidavits, briefs, and other documents,

to the

judge for a ruling with no hearing on the matter. The request for a hearing on the motion requests that the clerk send the motion, with all supporting and opposing affidavits, briefs, and other documents, to the judge and to schedule a hearing before the judge on the motion. This procedure is used in civil cases where the time between hearings is measured in months or years. This fifth hurdle is tricky because it varies from jurisdiction to jurisdiction and with the type of case. This hurdle traps new lawyers

first going to court, experienced lawyers going to a court they have never practiced in before, and lawyers experienced in one area of the

law expanding into another area, such as criminal into civil. To compound the problem further, in many jurisdictions, the rules of criminal or civil procedures may not spell out how this matter is handled.

If this subject is addressed, it may be in local court rules, addendum to the rules, or in a state code under judicial procedures. The lawyer in an unfamiliar forum or area of the law must study the rules of criminal or civil procedures, local rules, and codes or statutes governing judicial procedures. The lawyer should never be afraid to consult with the court clerks. It is better to be mildly embarrassed by asking the court clerks for guidance than to be humiliated in front of a judge or a client.

The Fifth Hurdle: Deliver the Motion 135 emer neeenye ererenee so eee ne neared n een eee

USING THE MOTION Three times a wife’s lawyer filed a motion for sanctions against the husband for discovery violations during their divorce. In a hearing on the first motion, the judge raked the husband and his lawyer for the violations. The husband filed the missing documents. In a hearing on the second motion, the judge was less hostile but ordered

additional discovery. The husband provided the additional documents. After the third motion was filed, however, the wife fired her

lawyer. A week later, the wife’s new lawyer and the husband’s lawyer entered into a settlement agreement with terms nearly identical to the terms the husband had proposed a year earlier. The wife was not interested in discovery. She wanted a divorce.

A hammer is more than a tool to drive nails, a saw more than a tool to cut. In the hands of the skilled craftsman, these tools build furniture or art or buildings. Likewise a motion is more than a request for an order. In the hands of a skilled lawyer, a motion is a tool to serve the client—whether that client is a city, a corporation, a presidential candidate, or an accused gang leader. Robert Traver, a trial lawyer and novelist, wrote:

For in sober truth every legal case that ever happened is essentially a story, the story of aroused, pulsing, actual people fighting each other or the stage for something: for money, for property, for power, pride, honor, love, freedom, even for life—and quite often, one suspects, for the show or un-

holy joy of fighting.’ Lawyers use motions to accomplish many purposes, including the following:

Obtain an Order. Of course, the most important reason to file a motion is to obtain an order. With routine housekeeping motions, the lawyer will obtain orders to move prisoners, procure witnesses, and receive pay for court-appointed cases. With contradictory motions, the lawyer will obtain orders to sever trials, do discovery, suppress harmful evidence, preserve helpful evidence, and destroy or curtail the opposing party’s causes of action.

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Aid in Discovery. Lawyers use motions for discovery. In criminal cases, a motion to suppress forces the prosecutor to call the arresting officer and other witnesses in a pretrial hearing. In federal courts, suppression hearings allow the criminal defense lawyer to obtain

Jencks Act material that normally is unavailable until trial. See Federal Rule of Criminal Procedure

12(i).

Civil lawyers may also use motions for discovery. For example, a writer filed a motion for a temporary injunction to enjoin a corporation from using the copyrighted material. The corporation responded by alleging that it was entitled to the material since the

writer had produced the material as a constructive employee of the corporation. Before either party had done any formal discovery, the lawyer for the writer uncovered the corporation’s theory

of the case. Lock in Testimony. Lawyers know that some witnesses will puff or

change their story at trial in an attempt to strengthen the case for their side. Thus, lawyers, in discovery, attempt to produce depositions, interrogatories, and other documents with which they will be able to impeach a witness who changes his or her story. Motions also produce affidavits, declarations, and transcripts that lock in a witness’s testimony. For example, at a suppression hearing, a police officer will testify how cooperative the defendant was—eagerly consenting to a search and waiving Miranda rights. At trial, the police officer may

claim that the defendant was evasive. At sentencing, the police officer may claim that the defendant was hostile and totally noncooperative. Preserve

an Issue for Appeal. Lawyers may file a motion not

expecting to win the motion, but simply to preserve an issue for

appeal. One journalist, in a book about the criminal trial of Dr. Spock, the celebrity pediatrician and antiwar activist, described such motions.

i

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The Fifth Hurdle: Deliver the Motion 137 ch eeticcit oneacic ines 2-2nce nase ge

This day motions were made by each of the defense lawyers for dismissal of the indictment. The judge was unmoved. Did they seriously expect the judge to dismiss the indictment, we asked them during the recess. No, of course not. This is all part of the advocate’s testing and probing, laying the proper legal basis for a later appeal.’ I have filed motions that I did not expect to win simply to preserve an issue for appeal. I have unexpectedly won some of these motions before the trial judge, however, perhaps because the best Way to preserve an issue on appeal is to present that issue to the trial judge in the most persuasive manner possible. Often, the trial judge

is more amenable to a motion than the court of appeals. Since the trial judge wants to do the case right, that judge may listen and carefully consider a motion. The appellate judge, however, looks for excuses to uphold a trial judge’s ruling. Educate the Judge. Sometimes a lawyer will file a motion to edu-

cate the judge about the facts or the law of the case. Consider a variation on the hypothetical from a previous chapter. A truck crashes into son’s car at an intersection, killing son. Mother sues

truck driver for wrongful death, alleging that the truck driver ran a red light. Truck driver and six witnesses state in deposition that the son ran the red light. Son’s best friend, who was in the car and survived the accident, told the police that son ran the red light. Best friend, however, at his deposition changed his story and claimed

that truck driver ran the red light. He states that the police misunderstood his testimony. The lawyer for truck driver may want to file a summary judgment motion to dismiss the case. Even if the judge rules against the motion because of best friend’s deposition, the judge may become aware of how weak mother’s case is. A lawyer may file a motion to educate the judge about the judge should consider before trial even if the lawyer think that the judge will grant the motion. This may be a strategy. If the judge makes an unfavorable ruling, he or

case law

does not high risk she may

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be reluctant to change the ruling later. Judges, like most people, like to be consistent and may harden into a position if the issues are presented prematurely. Educate the Public. Although uncommon, lawyers in a high publicity case may use motions to educate the public. For example, the U.S. government accused defendants of crossing state lines with the

intent of causing a riot at the 1968 Democratic National Convention in Chicago. One of the defense lawyers, Bill Kunstler, wrote about the defense strategy. I soon found that proving the main charge unconstitutional was far less important to the defendants than adhering to

their political goals. Their intent was to demonstrate—by their actions and by our words—that the government of the United States acted illegally to repress opposition to its policies. Thus, the trial would become

a readily comprehen-

sible political event that would make everyone aware of the government’s

repression and oppression

of minorities,

people who opposed the war in Vietnam, and members of the counterculture. The defendants also revealed their personalities and lifestyles to demonstrate exactly what the coun-

terculture was all about.* In motions practice, however, this is rare. Even in high publicity trials, the public and the news media pay little attention to motions and misunderstand the motions reported when they do.

Delay the Case. Motions, especially written motions, require time for the other side to respond; for hearings to be scheduled, held, and transcribed; and for the judge to research and issue a decision. A court often will delay a scheduled trial until the motion is

decided. Thus, lawyers will file a motion to delay a trial. Federal courts, for example, are subject to the Speedy Trial Act for criminal defendants.* This often means that a criminal defense lawyer is retained or appointed to a case that is scheduled for trial within

The Fifth Hurdle: Deliver the Motion ng

139

two months or less. Usually, the lawyer needs more time to investigate, prepare for trial, or negotiate a settlement. Filing a motion will delay the trial. Winston Schoonover, in a satirical novel about a fictional New York criminal defense lawyer, wrote: Every case Wilkes defended brought on a fight with “the two headed Hydra”—what he called the judge and DA—over his insistence that he be given enough time to prepare his cases. Wilkes desired to age his cases like fine wine. He quoted Emerson,

who might have written the rationale for the Old

Wine Defense which my friend made famous, when he said, “Time turns to shining ether the solid angularity of fact.” Both criminal and civil defense lawyers make use of motions to

delay and turn to “shining ether the solid angularity of fact.” Witnesses move, die, or forget. Policeman and government agents quit or retire. The opposing lawyer becomes a judge or moves to a dif-

ferent firm or city. The owner of a private aircraft repair facility sued an airport

board of directors for alleged antitrust violations favoring the repair facility’s competitor. Several years passed while the lawsuit was pending, delayed by discovery disputes and motions. In the meantime, the directors of the airport board changed. The new directors were more favorable to the repair facility. Finally, the board elected the owner’s son as its president. The owner realized that the antitrust suit no longer made any business sense and dismissed it. The lawyer should be aware, however, that frivolous motions for the sake of delay are a violation of a lawyer’s ethical duty. Rule

3.2 of the Model Rules of Professional Conduct states, “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.’° See also Federal Rule of Civil Procedure 11(b)(1). Still, legitimate motions

will delay a case, and the delay

will generally favor one side over the other.

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Other. A lawyer will file motions for other, less honorable, reasons such as showing commitment to the client or running up a bill. Sometimes a lawyer will file a motion to place a burden on the

other side to force the other side to settle. In my experience, the other side rarely settles. Lawyers seem incapable of doing two things

at once, such as negotiating a settlement and preparing a response

to a motion. Lawyers understand that to do so would be to place themselves in a position to negotiate against an unfavorable deadline, the last opportunity to file a response to the motion. A lawyer may choose not to file a motion. Of course, a lawyer, especially in a civil case, should never file a frivolous motion. See, e.g., Federal Rule of Civil Procedure 11(b). A lawyer may choose not to file a legitimate motion, however, because such motion may run up a bill, offend the judge or the other side, hurt settlement negotiations, or delay trial. A motion may preserve unfavorable testimony. See Federal Rule of Evidence 804(b)(1).

DEVELOPING

IDEAS FOR MOTIONS

How does a lawyer determine what motions to file? Where do the

ideas come from? The following is a list of ways that lawyers brainstorm ideas for motions. *

Routine. Certain motions are common

to every type of case.

For example, a civil defense lawyer will always consider a

summary judgment motion. A criminal defense lawyer will always consider a motion to suppress. Before answering a pleading, a civil lawyer should consider any preliminary

motions such as lack of jurisdiction, improper venue, insufficiency of process or service of process, failure to state a claim, or failure to join a required party. A criminal defense lawyer should consider any motion based on defects in the indictment or information, severance of charges or defendant, and

the like. At trial, a lawyer will consider motions for judgment as a matter of law, judgment notwithstanding the verdict, or judgment of acquittal as appropriate to the jurisdiction.

i

The Fifth Hurdle: Deliver the Motion a

i

*

141

Problems. A new lawyer listened to the crying wife on the phone. The wife had just read the divorce decree. The decree stated that she had a mortgage of $82,000 on the house she was awarded, rather than the $28,000 in the stipulation

of facts signed by the party. Although this was a clerical error that made

no difference to the decree, the wife was

too upset to listen. Problems arise that befuddle lawyers and clients alike.

A divorce decree has a clerical error.

A record on appeal is

missing transcripts. See Appendix E. A defendant threatens

to hide or squander his assets before judgment. A lawyer should consider a motion whenever a problem arises. As for the error in the divorce degree, courts long ago solved the problem of correcting clerical errors. See, e.g., Federal Rule of Civil Procedure 60(a). A simple motion solved the problem. ¢

Trial Preparation. Motions solve a variety of problems that arise in trial. The lawyer who is willing to ponder and plan for an upcoming trial will find many good ideas for mo-

tions. What witnesses are needed? What evidence is needed? What problems does the lawyer need to solve? The summary judgment motion in Appendix A, the motion directing the marshal to serve witnesses in Appendix D, the motion to hold a trial on the Indian reservation, and the motion to allow an aircraft engine into the courthouse are examples of motions

developed to solve problems that the lawyer

anticipated at trial.

A lawyer planning a trial should con-

sider both housekeeping

motions and combative

motions

such as a motion in limine.

¢

Legal Research. A certain plaintiff's lawyer always spends several days researching the relevant case law before filing any complaint. A certain criminal defense lawyer always researches the statutes that his client is accused of violating. Ed Cleary researched the law thoroughly before filing the motion that the U.S. Supreme Court later upheld in R.A.V. v.

142

CHAPTERTEN

City of St. Paul, Minnesota,

505 U.S. 377 (1992). A rich

source of ideas for motions is the case law and the statutes. Sometimes

a lawyer will find a totally unexpected case.

Several motions that I have described previously are examples of cases where the lawyer unexpectedly found a controlling case doing background research. One source of ideas for motion are footnotes that describe an issue that the appellate court refused to consider because the issue was not raised at trial. Raise that issue as ¢

a motion. File Raiding. One rich and often overlooked source of ideas for motions is the court files of cases similar to the lawyer’s present case. In these files, lawyers will find motions, affidavits, declarations, orders, transcripts, and jury instructions

prepared by the leading lawyers in the field, perhaps even by the lawyer’s adversary.

A lawyer can find local cases through regional legal newspapers or even through the general daily newspapers and other news media. Although a general daily newspaper almost never includes a docket number, the lawyer can easily access the court docket with a party name. Local cases not only are a rich source of ideas for

motions, but also provide examples of motions and other documents that conform to the local rules and practice.

The lawyer can also access court files nationally through re-

ported cases. Every reported case includes the trial court’s docket number. With the docket number, the lawyer can write or phone the trial court clerk to obtain documents from the file. The clerk may charge a nominal copying fee, but this is often money well spent.

In the introduction, I noted, “As I have written this book, I have compared my analysis and conclusions with the motions that I, and other lawyers, have written.” I obtained many of these motion by file raiding.

The Fifth Hurdle: Deliver the Motion

143

In the hands of a skilled lawyer, motions are wonderful tools to advance a lawyer’s case. Of course, as the wife’s lawyer in the above case belatedly learned, the motion must support the client’s needs. Notes

iM

RoBerT TRAVER, THE JEALOUS MistrEss, preface (1967). Robert Traver is the

pen name of John D. Voelker, who served as a prosecuting attorney and as a Michigan Supreme Court Justice. He is the author of several legal novels including Anatomy of a Murder. JessicA MITFORD, THE TRIAL OF Dr. Spock, THE REV. WILLIAM SLOANE COFFIN, JR., MICHAEL FERBER, MITCHELL GOODMAN, AND Marcus RASKIN 91 (1969). WILLIAM M. KunsTLer, My Lire As A RADICAL LAWYER 21-22 (1994).

Or i

18 U.S.C. § 3161 et seq. WINSTON SCHOONOVER, WILKES—His LIFE AND CRIMES 1x (1990). ABA CENTER FOR PROFESSIONAL RESPONSIBILITY, ANNOTATED MOpEL RULES OF

PROFESSIONAL Conbuct 303 (3d ed. 1996).

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*

A Motion from the Dred Scott Case Do not stifle inspiration, and do not despise pro-

phetic utterances,

but bring them all to the test

and then keep what is good in them and avoid bad of whatever kind.

1 Thessalonians 5: 19-22 L, 1846, Dred and Harriet Scott filed suit in the Circuit Court in St. Louis, Missouri, for their freedom from slavery. After two trials and an appeal to the Missouri Supreme Court, Dred Scott refiled the case in the federal district court. The case was appealed to the U.S. Supreme

Court. The Supreme Court’s decision in the Dred Scott case, issued three years before the American Civil War, is perhaps the most notorious of all its decisions. The decision intensified the already heated sectional tensions

that led to the American Civil War. Because of its historical importance, the Missouri State Archives, the St. Louis Circuit Court, and the Washington University in St. Louis

have made documents filed in the St. Louis Circuit Court available to the public over the Internet. Thus, the Circuit Court file is ripe for file raiding. Although most of

the legal issues in the Dred Scott case are now several documents

moot,

have lessons for the modern court-

room lawyer.

145

146

CHAPTERELEVEN

Dred and Harriet Scott sued Irene Emerson, widow of Dr. Emerson. The Scotts had accompanied Dr. Emerson,

a military doctor, to sev-

eral posts in Illinois and the Wisconsin territory, where slavery was

outlawed. They had returned to Missouri, where slavery was still allowed. In an earlier case, the Missouri Supreme Court held that an owner who took slaves into free territory or state was presumed to have freed these slaves. To win, the Scotts had to prove that Irene

Emerson or her husband (1) had taken the Scotts into free territory and (2) still treated or owned them as slaves. At trial, the Scotts proved that Dr. Emerson had taken them into free territory.

To prove that Mrs. Emerson treated the Scotts as slaves, the Scotts’ lawyer called a witness who claimed to have leased the Scotts from her. On cross examination, the witness admitted that he had not actually negotiated the lease. Instead, the witness’s wife had done the

negotiations. Thus, the judge excluded the witness’s testimony as hearsay. The judge then instructed the jury to find for Emerson since the Scotts were unable to prove that Mrs. Emerson still owned them. Immediately after the trial, the Scott’s new lawyer, Samuel Bay, filed the following motion.

First Motion

Dred Scott vs. Irene Emerson

} }

In Cir. Court April Term 1847 }

} Harriet Scott VS. Irene Emerson

} } }

Now[?] at this day comes the plaintiffs in the above causes and moves the Court to set aside the verdict rendered in their cause for the following reasons

1. 2. 3.

Because said verdict is against ttegibte the evidence Because said verdict is against law & evidence Because the verdict is against the weight of evidence,

### Bay atty for plaintiffs’

eee eee anion

A Motion from the Dred Scott Case 147 ence tensareioree oe ree en ee eee

The motion is handwritten. The Dred Scott case was litigated in an age before typewriters. It has no certificate of service, elaborate heading, or attorney address block that are now required by modern practice. The body of the motion begins with the clutter phrase “Now at this day comes the plaintiff in the above cases. . . .”” The

substance of the motion is minimal. The Scotts’ motion did not explicitly state why a new trial should be granted. Instead, it generally tracked statutory or common

law. This, however, is typical of a

motion for new trial. Such motions are filed under strict deadlines. A mediocre motion timely filed is always better than a great motion filed too late. The next day, Samuel Bay filed the following motion. Second

Dred Scott

}

VS. lrene Emerson

}

Harriet (of color)

}

vs. Irene Emerson

Motion

}

In St. Louis Circuit Court April Term 1847

} }

Now[?] at this day comes the said plaintiffs &4tegiblte-edditionat reasens?} for moves the Court to set aside the verdict rendered[?] herein & grant a new trials in the above entitled Causes for the for the follow reason, in addition to the reasons mentioned in the motion here before filed to wit; Because the said plaintiffs were surprised by the testimony evideree of the witness Russell who testified in their Cause.

### Bay atty for plffs? This additional motion makes up for the lack of specific grounds in the first motion by adding, “Because the said plaintiffs were surprised by the testimony of the witness Russell who testified in their

148

CHAPTERELEVEN

LEE

EEEE EEE

Cause.” Samuel Bay identified the real issue in the second motion that he had missed in the first. Still, by filing the first motion—even if incomplete—Bay made sure that the motion was timely filed. The lesson for the modern trial lawyer facing deadlines is to file a motion whether mediocre or not, then further think about the motion and supplement it with additional grounds if needed. In fast-track litigation, the lawyer must think READY, FIRE, AIM, rather than the usual

READY, AIM, FIRE appropriate in slower-paced litigation. Twenty-four days after filing the second motion, Samuel Bay filed the following affidavit.

Affidavit Dred Scott vs. Irene Emerson

} } }

Dred Scott, the plaintiff in this Cause in Support of his motion for a new trial[,] States upon oath. That he was Surprised in the testimony of the witness Samuel Russell, by whom he expected to move that he, this affiant, was hired as a Salon by Said Russell from the defendant, previous to the Commencement of this Suit, & that Said Russell Paid to Said defendant money for the hire of this affiant as a Slave, and that he did not know previous to, or as [illegible] the trial of Said Cause that he could prove Said facts, or Could prove that he was claimed as a Slave or held in Slavery by Said defendant, by any other person than Said Russell, and therefore relied solely upon the testimony of Said Russell to prove Such facts as now neces-

sary to maintain Said Suit of which Said defendant, is the person holding this affiant in Slavery. This affiant in support of this affidavit makes an exhibit of a certain letter addressed to Said Russell by J.R. Sackland one of the Counsel of this affiant & the answer of Said Russell to the Said letter-from which it will appear, that previous to Said trial Said Russell informed Said Lackland that he Said Russell hired this affiant in March from the defendant & that he Said Russell Paid the Said hire of this affiant to Said defendant.

seamen

tienen

A Motion from the Dred Scott Case 149 eee ee ee ee a renee

This affiant further states that relying solely upon the testimony of Said Russell to prove these facts & knowing no other person by whom he could prove the same facts, or other facts tending to the Same [ends?], he went into trial. When to his Surprise Said Russell testified in effect that he did not hire this affiant from Said defendant, nor did he pay Said hire to Said defendant, for that his Knowledge of such facts was solely derived from the information of his Wife. This affiant thus taken by surprise in the testimony of Said Russell[,] was unable to establish Said facts to the Satisfaction of the Jury, for which reason, he

supposes, a verdict was rendered against him. This affiant states that previous to said trial he had no knowledge that the Wife of Said Russell had any knowledge that this affiant was held in Slavery by Said defendant but that if a new trial is granted to him he expects to prove by the testimony of the Wife of Said Russell that Said defendant, previous to the Commencement of Said Suit hired this affiant to the Wife of Said Russell, acting as the agent of her Said husband, and that her acts in this occasion were ratified & approved by her Said husband & that Said defendant Claimed this affiant as her Slave. This affiant avers that previous to Said trial he had no knowledge that the Wife of Said Russell, or any other person than Said Russell had any knowledge that this affiant was held in Slavery by Said defendant. This affiant avers that the facts [illegible] in his petition to sue for his freedom are true. That he was & is a free man & was at the time of the Commencement of this Suit held in Slavery by Said defendant{[.] That the verdict against this affiant is unjust & oppressive tending to the [...]tion of rights to which he is entitled by the laws of the land. And that upon a new trial he will be able to establish his right to freedom & to prove that he was & is unjustly & unlawfully held in Slavery by Said defendant. his Dred X Scott mark

Subscribed & sworn this 24th July 1847. Jno. Ruland clerk®

150

CHAPTERELEVEN

ee ee

This affidavit places into the record the facts supporting the grounds in the second motion. Dred Scott signed this affidavit with an X. Dred Scott is illiterate. The language of the affidavit does not appear, however, to be the language of an illiterate slave. Instead, the language is the convoluted language of a nineteenth-century lawyer. A modern lawyer should avoid such language. The notary statement, “Subscribed & sworn this 24th July 1847,” is elegant and simple. I have adopted this notary statement both in my own practice and in this book. In a society where documents are handwritten, routine phrases such as a notary statement would tend toward the plain and simple. Because handwritten documents are difficult both to produce and to read, the writer avoided clutter if possible. Today, however, notary statements are often long and

complex. With a word processor, a lawyer can produce a lengthy boilerplate statement without having to think. Too often, modern legal documents contain boilerplate paragraphs or pages of difficult, unnecessary, boring, and unpersuasive prose. Lawyers using such boilerplates forget that the intended reader, the judge, is a human being, not a memory

bank.

Samuel Bay does not appear to have filed

a memorandum

of

points and authority in support of the motions. Perhaps such a memorandum, being handwritten,

was neither expected nor welcomed

by the court.

These motions and the supporting affidavit, although not perfect, at least by the standards of this book, were successful. The

judge granted a new trial. In the second trial, the Scotts won. Emerson appealed and the Missouri Supreme Court reversed, overturning the earlier Missouri rule. Scott then filed in the federal district court.

On appeal, the Supreme Court issued its infamous decision. Although most of the legal issues in the Dred Scott case are now moot, file-raiding even this old case produced several insights that

have lessons for the modern courtroom lawyer, including: (1) the READY,

FIRE, AIM thinking with a first motion hastily drawn to

meet a deadline and a second motion containing additional points to complete the motion; and (2) the simple and elegant notary state-

A Motion from the Dred Scott Case

151

eee

ment. Of course, a lawyer must review and adapt another lawyer’s motion with wisdom. Modern courts will not accept a motion lacking a certificate of service, an appropriate heading, or attorney address block. Most modern judges would appreciate, or at least consider, a memorandum of points and authority for this contradictory motion. Finally, few modern courts would grant a new trial because one of the parties was surprised when that party’s witness was impeached. Notes | Motion for new trial by Dred and Harriet Scott’s new attorney Samuel M. Bay, filed June 30, 1847, Dred Scott v. Irene Emersion, Harriet Scott v. Irene Emersion, April 1847, Circuit Court Case Files, Office of the Circuit Clerk, City of St. Louis, Missouri, available at http://library.wustl.edu/ vlib/dredscott/transcripts/scott_23.html. Motion for new trial by Dred and Harriet Scott’s new attorney Samuel M. Bay, filed July 1, 1847, with additional reasons, Scott v. Irene Emersion,

Harriet Scott v. Irene Emersion, April 1847, Circuit Court Case Files, Office of the Circuit Clerk, City of St. Louis, Missouri, available at http:// library.wustl.edu/vlib/dredscott/transcripts/scott_24html.

Plaintiff’s (Dred Scott) affidavit in support of Motion for New Trial; filed July 24, 1847; signed with “X” by Dred Scott, Scott v. Irene Emersion, Harriet Scott v. Irene Emersion, April 1847, Circuit Court Case Files, Office of the Circuit Clerk, City of St. Louis, Missouri, available at http:// library. wustl.edu/vlib/dredscott/transcripts/scott_25html.

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Pursuant to DUCrimR

17-1, defendant Mootry moves this Hon-

orable Court to direct the Clerk to seal this Motion and Order. In support of this motion, defendant states:° 1. John and Jane Dow are alibi witnesses who were with Charlie Mootry on the day of the bank robbery. They will testify that on November 24, 1998, Charlie was with Jane. They will testify that on November 24, 1998, Charlie was with Jane and that Charlie picked up Jane from school at about 2:00 p.m., the time of the bank robbery. Charlie and the family then took Jane Dow to the Cut-Rate Medical Center. Defendant’s investigator will serve these subpoenas as he re-

locates these witnesses.’ 2. The medical records at the Medical Center will confirm the alibi witnesses’ testimony and more precisely establish the time that Charlie was with the Doe family. 3. Deputy Weidmer followed the bank robbers to co-defendant Pout’s house. He saw Pout get out of the car and walk “as

cool as can be” to the door. He knew Pout’s house and he saw the driver of the car. The Government claims that Mootry was the driver. Deputy Jones’s description of the driver does not match Mootry. Deputy Jones could not identify Mootry when Agent Smith showed him a photo spread. RESPECTFULLY SUBMITTED on August 24, 2000.

L. Ronald Jorgensen

Attorney for Defendant Charlie Mootry

212

APPENDICES

DECLARATION OF L. RONALD JORGENSEN I declare under penalty of perjury that the foregoing is true and

correct. The testimony in this declaration is based on my information

and belief.*

L. Ronald Jorgensen

Mr. Clerk: Pursuant to DUCrimR

17-1, please seal this Motion and Order.

RESPECTFULLY SUBMITTED on August 24, 2000.’

L. Ronald Jorgensen

Appendix D: Motion for U.S. Marshal to Serve Subpoenas se ns

213

L. Ronald Jorgensen xxxx Attorney for Defendant XXARAARKERK XXXXXX, Utah xxxxx Phone: (xxx) XXX-xXxxx Fax: (XXX) XKX-xXxxKXx

E-Mail:

ronjorgensen @xxx.net IN THE UNITED STATES DistRICT CouRT District oF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number: 2:98 CR xxx X

VS. Moortry et al.,

Sealed Order'!°®

Defendants.

To:

United States Marshal Service United States Courthouse xxx South Main Street

Salt Lake City, Utah xxxxx"! Based upon application of counsel and for good cause shown:”

IT JS.ORDERED: The Clerk of the Court shall issue subpoenas for:'° John Doe Jane Doe Deputy Sheriff Brian Jones

Salt Lake County Sheriff’s Office West Patrol Substation Xxxx

South xxxx West

Xxxxx, Utah

214

APPENDICES

i

Special Agent Daniel R. Smith Federal Bureau of Investigation Salt Lake Field Office xxx East xxx South, Suite xxxx Salt Lake City, Utah Record’s

Custodian,

Cut-Rate Health Services, Inc.

c/o Joe Brown, Registered Agent xx South State Street, Suite xxxx

Salt Lake City, Utah xxxxx to testify at a trial of this case now set for Monday, October 2, 2000

at 8:30 a.m. in the United States Courthouse, Room xxx, 350 South Main Street, Salt Lake City, Utah.

The United States Marshall’s Service shall serve the above subpoenas as requested by counsel for defendant.

The costs of the

process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in the case

of a witness subpoenaed on behalf of the Government." IT IS FURTHER ORDERED, pursuant to DUCrimR 17-1, that the Clerk seal this Motion and Order.

The Clerk shall serve a copy

of this order on L. Ronald Jorgensen, attorney for defendant Charlie Mootry.

Upon request by Mr. Jorgensen, the Clerk shall give Mr.

Jorgensen additional copies of this order when Mr. Jorgensen shows

the Clerk his Utah Bar Card No. xxxx with picture identification.' DATED

this

day of August 2000. BY TRE COURT:

United States District Court Judge

Appendix E: Motions to Correct Record on Appeal

In preparing a record on appeal, I discovered two problems. The first was minor; a clerk had failed to include an already prepared tran-

script in the record on appeal. The second was more serious. During a bench conference, I identified an exhibit in support of my objection to the admission of certain hearsay evidence. This was the only time that the exhibit was identified, although I did refer to the exhibit later during a motion for judgment of acquittal. After the trial, I accidently took the exhibit instead of leaving it with the court clerk.

Now on appeal, I wanted to include the exhibit. Unfortunately, I belatedly learned that this court had a unwritten policy of not having the court reporter record bench conferences. Thus, nothing in

the record identified this exhibit. I filed the following motions to solve these problems. The motions were successful. I also learned to insist on having the court reporter record all bench conferences.

Notes 1. Although this record is being prepared for appeal and is governed by the Federal Rules of Appellant Procedure, this motion is to the trial court rather than to the appeals court. During an appeal, the lawyer must deal with two courts, not one. In preparing a motion after filing the appeal, a lawyer must decide to which court the motion should be addressed. 2. The trial court assigned a case number. After the notice of appeal, the appeals court assigned an appeal number. This

motion cites both.

215

216

APPENDICES

ee

3. The first motion deals with the minor problem—the need for the clerk to send the missing transcript. This motion opens with the phase, “Pursuant to Fed. R. App. P. 10(e), . . .” Rule

10(e) is the governing rule. 4. This declaration incorporates the motion. 5. Spacing and bolding makes the order more readable. The phrase “IT IS HEREBY

ORDERED”

are magic words.

6. This second motion deals with the more serious problem— the exhibit that was identified only in the unrecorded bench

conference. This motion opens with the phase, “Pursuant to Fed. R. App. P. 10(e).” After reviewing this motion six years later, I think that Rule

10(c) rather than

10(e) governs.

I

would include, either in the motion itself, the certificate of service, or a separate letter to the prosecutor, the essence

of

the following statement. Pursuant to Fed. R. App. P. 10(c), appellant-defen-

dant CHARLIE

MOOTRY

notifies the appellee that

he intends to include in the record on appeal both Defendant’s Exhibit D-3 and the Declaration in Support of Defendant’s Second Motion of Correction to Record on Appeal. The appellee must objections or proposed amendment

serve any

to Exhibit D-3

or the Declaration within ten days after being served. Even with this error, however, the motion was successful. Neither the trial court, the prosecutor, nor the appeals court

challenged the motion or the exhibit. In fact, the appeals court cited Exhibit D-3 in its opinion. See United States v.

Rith, 164 F.3d 1323 (10th Cir.), cert denied, 528 U.S. 827 (1999). This illustrates an important point.

A lawyer must

use caution in copying any motion, even a successful one.

7. Unlike the declaration in the First Motion of Correction, the declaration in the Second is separate from the motion itself. This provided the option of including the declaration as an

Appendix E: Motions to Correct Record on Appeal

217

appendix to appellant’s opening or rebuttal brief without the motion. . The declaration has its own \O .

Defendant’s

certificate of service.

Exhibit D-3 was attached to this order.

. The First and Second Motions of Correction were to the trial

court. This motion deals with the court of appeals. LP; The pursuant to phrase cites both a Federal Rule and a Tenth Circuit local rule. bn

Whenever a lawyer needs an extension of time to file any document, that lawyer should telephone the other side and

obtain permission. Usually the lawyer for the other side will not oppose such an extension. If the lawyer for the other side feels that the time requested is unreasonable, that lawyer should counterpropose a shorter extension. If no agreement is reached, the lawyer seeking the extension must note

the request and the refusal in the motion.

BE

In this motion for extension of time, the declaration is probably unnecessary. The risk of errors leading to impeachment or perjury in this motion is so slight, however, that I

had no qualms about including or signing the declaration.

218

APPENDICES

NY

L. Ronald Jorgensen xXxxx Attorney for Defendant 10,8,8,8,0,6.8,0,8,0,. 50,0, 0,0,0,0, OLE Nn. 8.0.9,8.¢ Phone: (XxX) XXX-XXXX |b Ciel0.0.8) IO@,0.8.0, 0,0.

E-Mail: ronjorgensen@ xxx.net IN THE UNITED STATES DistRICT COURT

District oF UTAH, CENTRAL DIVISION! UNITED STATES OF AMERICA, Plaintiff,

Case Number:

96-CR-xx

Appeal Number: VS. CHARLIE Mootry,

First Motion

Defendant.

X

97-xxxx?

of Correction

to Record on Appeal

Pursuant to Fed. R. App. P. 10(e), defendant Charlie Mootry moves

this Honorable Court to certify and transmit to the Tenth

Circuit Court of Appeals the trial transcript of May

12, 1997. In

support of this Motion, defendant states:* 1.

On August

19, 1997, defendant timely filed a Notice of

Appeal. Since defendant is represented by appointed counsel, de-

fendant designated parts of the record to be transmitted to the Court of Appeals. Defendant

made arrangements

prepared, including the transcript of May

for transcripts to be 12, 1997. See attach-

ment 1: Transcript Order Form. In fact, all requested transcripts were prepared, including the May 12, 1997 transcript. Both Charlie Mootry’s appointed counsel, L. Ronald Jorgensen, and the District Court Clerk’s office have a copy of the May script.

12, 1997 tran-

2. On November 26, 1997, this Honorable Court transmitted the Record on Appeal. See attachment 2: Andrea Jones Letter. The letter did not include the May

12, 1997 transcript. Mr. Jorgensen

phoned Ms. Jones. She said that she had the May 12, 1997 transcript but had interpreted the designation of record as only re-

Appendix E: Motions to Correct Record on Appeal

———————— ros

219

questing Exhibit 3, not the full transcript. She said she would need an order to transmit the May 12, 1997 transcript. 3. The May 12, 1997 transcript is necessary for the defendant to complete his appeal. Most of the evidence at trial was presented on May 12, 1997. The May 12, 1997 transcript is already prepared and in the clerk’s possession. Therefore, defendant re-

spectfully requests that this Honorable Court certify and transmit to the Tenth Circuit Court of Appeals the trial transcript of May Fo ea 7s RESPECTFULLY SUBMITTED on January 5, 1997.

L. Ronald Jorgensen

Attorney for Defendant Charlie Mootry

DECLARATION OF L. RONALD

JORGENSEN

I declare under penalty of perjury that the foregoing is true and

correct. L. Ronald Jorgensen

CERTIFICATE OF SERVICE I certiry that on October 15, 2005, I caused to be mailed, postage prepaid, an exact copy of Defendant’s First Motion of Correction to Record on Appeal and the accompanying order to: EARL

ROGERS

Assistant United States Attorney xxx South State Street, Suite xxx Salt Lake

City, Utah xxxxx-Xxxxx

220

APPENDICES

L. Ronald Jorgensen Attachment

1: Transcript Order Form

Attachment 2: Andrea Jones Letter

Appendix E: Motions to Correct Record on Appeal 221 ————— a —— a a ae a

L. Ronald Jorgensen xxxx Attorney for Defendant KXXKEAARAAXE SSKRak. Uta Xe x Phone: (Xxx) XXX-xXxxx Pax’ Ucxx) XXX>XaXXK

E-Mail: [email protected] IN THE UNITED States District Court District oF UTAH, CENTRAL DIvIsION UNITED STATES OF AMERICA,

Plaintiff,

Case Number:

96-CR-xx

Appeal Number:

X

97-xxxx

oe

CHARLIE Mootry,

Defendant.

Defendant

Charlie Mootry made a motion to this Honorable

Court to certify and transmit to the Tenth Circuit Court of Appeals the trial transcript of May

12, 1997, pursuant to Fed. R. App. P.

10(e). The Court finds it proper to grant such motion. Therefore, IT IS HEREBY ORDERED that the District Court Clerk transmit to the Tenth Circuit Court of Appeals the trial transcript of May

i

loo DATED

this ___

day of December,

BY THE

1997.

COURT:

United States District Court Judge

222

APPENDICES

eS

L. Ronald Jorgensen xxxx Attorney for Defendant OOS, OO.O9. 0.8.05 0.0, 6©,

CAE he.6.6.8.9.3

PHOnE? (XXX) Keka Fax: (XxX) XXX-XXXX

E-Mail: ronjorgensen @xxx.net

IN THE UNITED STATES DistTRICT COURT District oF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case Number:

96-CR-xx

Appeal Number:

X

97-xxxx

VS. CHARLIE Mootry,

Defendant.

Second

Motion

of Correction

to Record on Appeal Pursuant to Fed. R. App. P. 10(e), defendant Charlie Mootry

moves

this Honorable Court to certify and transmit to the Tenth

Circuit Court of Appeals the documents

labeled as Defendant’s

Exhibit D-3 attached to the proposed order accompanying this Second Motion of Correction to Record on Appeal.°® RESPECTFULLY SUBMITTED on January 5, 1998.

L. Ronald Jorgensen Attorney for Defendant Charlie Mootry

Appendix E: Motions to Correct Record on Appeal

223

CERTIFICATE OF SERVICE I certiFy that on October

15, 2005, I caused to be mailed, post-

age prepaid, an exact copy of Defendant’s Second Motion of Correction to Record on Appeal and the accompanying

Defendant’s Exhibit D-3 to: EARL ROGERS Assistant United States Attorney 185 South State Street, Suite xxx Salt Lake City, Utah xxxxx-xxxx

L. Ronald Jorgensen

order with

224

APPENDICES

eR

L. Ronald Jorgensen xxxx Attorney for Defendant KATAIARA NAY XXxxxx, Utah xxxxx Phone: (Xxx) XXX-XXXX Fax: (xxx) XXX-XXXX

E-Mail: ronjorgensen @ xxx.net

IN THE UNITED STATES DisTRICT COURT

District OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, Plaintiff,

Case Number:

96-CR-xx

Appeal Number:

X

97-xxxx

VS.

CHARLIE Mootry, Defendant.

Declaration in Support of Defendant’s Second Motion of Correction to Record on Appeal

I, L. Ronald Jorgensen,

1.

declare:’

Iam the attorney of record for the defendant, Charlie Mootry,

and am familiar with the facts and proceedings in this case. On May 12 and 13, 1997, I defended Mr. Mootry during a two-day jury trial before the Honorable Jack K. Smith. 2.

Pursuant to Fed. R. App. P. 10(e), defendant Charlie Mootry

moves this Honorable Court to certify and transmit to the Tenth Circuit Court of Appeals the documents Exhibit

D-3

attached

to the proposed

labeled as Defendant’s order

accompanying

Defendant’s Second Motion of Correction to Record on Appeal. 3.

Defendant’s Exhibit D-3 includes a transcript of remarks

made by Tom Busey, head of the National Firearms Act, during a

training session for ATF inspectors. It also includes other documents related to these remarks and critical of ATF’s record keeping. 4.

Earl Rogers, Assistant United States Attorney, prosecuted

this case on behalf of the United States. On or about March 22,

Appendix E: Motions to Correct Record on Appeal 225 eee ennsenensi er ae ee

1996, Mr. Rogers, in response to a routine discovery request, mailed me the documents now labeled as Defendant’s Exhibit D-3. 5. During the trial, Mr. Rogers presented Plaintiff’s Exhibit 3. I objected to the admission of Plaintiff’s Exhibit 3 as follows: MR. JORGENSEN:

Your Honor, I would object that the

presentation of this certificate is a violation of the confron-

tation clause of the United States Constitution. Charlie Mootry

through me has a right to cross-examine

these

people. The people that signed the certificate have made

allegations that they have searched the records and have found nothing in the records. In support of this I would like to present the following documents to the Court. THE COURT:

Bring them up, please.

(Bench conference

off the record.)

Trans. of Trial, May 12, 1997, p. 64.

6.

The documents

I presented during the bench conference

were Defendant’s Exhibit D-3. I identified and presented them to Judge Smith during the off the record bench conference. I declare

that the documents presented during this bench conference are the

same documents labeled as Defendant’s Exhibit D-3 attached to the proposed order accompanying Defendant’s Second Motion of Correction to Record on Appeal. 7. Later in the trial during a Motion for Judgment of Acquittal,

I cited from Defendant’s Exhibit D-3, as follows: MR. JORGENSEN:

Okay. The testimony that was of-

fered by Tom Busey, who was the actual chief of the N.F.A.

branch, the national firearms branch, at page 9 testifies as to what he would testify, and he says, “Let me say that when we testify in court we testify the database is 100 percent accurate. That is what we testify to. We will always testify to that. As you probably well know that may not be 100 percent true. If our database was absolutely error free we

226

APPENDICES

ee UEEEEEEEESEEIIESESESSI SEIS

could simply run the names of the individuals, their first

name and if that does not come up we can guarantee that that individual does not have a title two weapon registered to him.” He goes on to explain in detail what is needed for a proper search, particularly how they handle the names back

and forth and how they try to do phonetic names. These are areas that I think it would be important to cross-examine

Onsily. s Tom Busey also signed an affidavit and he says, “If asked on the stand to testify to the accuracy and reliability of the database I would testify that it does contain errors as mentioned above, and would further explain how we perform the search and issue an accurate and reliable certification.” That is the second little tab, Your Honor. Trans. of Trial, May 12, 1997, pp. 102-103 [punctuation added]. MR. JORGENSEN:

All right. Your Honor, there is also a

statement critical of the—well, there are several statements, and I will leave it to Your Honor to read, but they are critical of how accurate the database is. Even Tom

Busey says at

one point when he first came in it was a 50 percent inaccuracy rate. Now he claims it is eighty percent a year accurate

after he came in.

Trans. of Trial, May 12, 1997, p. 104. 8.

Defendant Exhibit D-3 was never given to the jury. Pursu-

ant to FRE 104(b), I gave it to Judge Rogers to show that Plaintiff’s

Exhibit 3 should not be admitted. Defendant’s Exhibit D-3 contains “legislative” facts as opposed to “‘adjudicative” facts. As described in the 1972 advisory opinion note to FRE 201, {[ 2, “Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning

and the lawmaking process, whether in the formulation of a legal

Appendix E: Motions to Correct Record on Appeal

227

——— et

principle or ruling by a judge or court or in the enactment of a legislative body.”

9.

Inadvertently, Defendant’s Exhibit D-3 was not included in

the District Court files or on the docket. I did not realize this until I prepared the docketing statement for appeal. 10. Defendant’s Exhibit D-3 is necessary for Charlie Mootry’s

appeal. It contains legislative facts that should be considered by the Court of Appeals in making a full and proper decision in this case. I declare under the penalty of perjury that the foregoing is true and correct.

This declaration

1s executed

on December

26, 1997.

L. Ronald Jorgensen

CERTIFICATE OF SERVICE

I certiry that on December 26, 1997, I caused to be mailed, postage prepaid, an exact copy of Defendant’s Declaration in Support of Defendant’s Second Motion of Correction to Record on

Appeal to:® EARL ROGERS Assistant United States Attorney xxx South State Street, Suite xxx Salt Lake City, Utah xxxxx-xxxx

L. Ronald Jorgensen

228

APPENDICES

EE ——————————————————— ——————————————— —————

L. Ronald Jorgensen xxxx Attorney for Defendant XXXXXXXXXXX KKXXKK,

Wtan

KXKKKK

Phone: (xxx) XXX-XXXX Fax: (XXX) XXX-XXXX

E-Mail: ronjorgensen @xxx.net IN THE UNITED STATES DisTRICT COURT

District oF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA,

Plaintiff,

Case Number:

96-CR-xx

Appeal Number:

X

97-xxxx

VS. CHARLIE Moortry, Defendant.

Defendant

Charlie Mootry made a motion to this Honorable

Court to certify and transmit to the Tenth Circuit Court of Appeals the documents labeled as Defendant’s Exhibit D-3° pursuant to Fed. R. App. P. 10(e). The Court finds it proper to grant such motion. Therefore, IT IS HEREBY

ORDERED

that the District Court Clerk trans-

mit to the Tenth Circuit Court of Appeals the documents attached to this order and labeled Defendant’s Exhibit D-3. DATED

this ____ day of

BY THE COURT:

LO?

Appendix E: Motions to Correct Record on Appeal a eae een nnn

229 ener

IN THE UNITED States District Court

District oF UTAH, CENTRAL Division!” UNITED STATES OF AMERICA,

Plaintiff,

Case Number:

97-xxxx

VS, CHARLIE Mootry, Defendant.

Motion for Extension of Time to File Appellant’s Brief

Pursuant to Fed. R. App. P. 26(b) and 10th Cir. R. 27.4, appellant Charlie Mootry moves this Honorable Court of Appeals to ex-

tend the time to file the appellant’s brief. In support of this Motion, appellant states:"! 1. 2.

Appellant’s brief is now due January 12, 1998. On or about December 23, 1997, appellant filed in the United

States District Court of Utah a First Motion of Correction to Record on Appeal. See attached: First Motion of Correction to Record on Appeal. This motion asked that trial transcripts of May 12, 1997, be sent to the Court of Appeal. Appellant ordered this transcript and this transcript was finished. However, this transcript was not sent as

part of the record on appeal. 3. On or about December 26, 1997, appellant filed in the United

States District Court of Utah a Second Motion of Correction to Record on Appeal. See attached Second Motion of Correction to Record on Appeal and the accompanying declaration. This motion concerned additional documents that should be considered by this Honorable Court of Appeals. 4. The United States District Court for Utah has not yet ruled on these motions. The transcript and documents requested in these motion are necessary to the Appellant’s brief. 5. On January 5, 1997, L. Ronald Jorgensen, attorney for appellant, phoned Earl Rogers, Assistant United States Attorney assigned to this case. She stated that she would not oppose this Mo-

tion for Extension of Time."

230

APPENDICES

6.

Appellant Charlie Mootry is in custody of the United State

Bureau of Prisons, with an expected release date in March

1998.

RESPECTFULLY SUBMITTED on January 5, 1998.

L. Ronald Jorgensen Attorney for Defendant Charlie Mootry SO OREDOROD « 9.89,0,0.9, ah NATED. 4. 4

PRONG:

Uxx% sek

IFRDR2 (COMO) WOOO

E-Mail:

ronjorgensen @xxx.net

DECLARATION OF L. RONALD

JORGENSEN

I declare under penalty of perjury that the foregoing is true and correct.“

L. Ronald Jorgensen CERTIFICATE OF SERVICE I certiry that on October 15, 2005, I caused to be mailed, postage prepaid, an exact copy of Motion for Extension of Time to File Appellant’s Brief to:

EARL ROGERS Assistant United States Attorney

xxx South State Street, Suite xxx Salt Lake City, Utah xxxxx-xxxx

L. Ronald Jorgensen

Index

affidavits and declarations

Assimilated Crimes Act 116 background, importance of rg controlling 111, 114-16

63-85

affidavit writing 64-68 at end of motion 67 Federal Rule of Civil

Darrington v. Wade 113 matters within judge’s discretion 112 persuasive 110 defined 112

Procedure 56(e) 64

material witness, danger of becoming 67 notary statement 65 parts of 64 referencing other documents 66 signature block 65 state notary codes 67 statement of competency 64 typical affidavit 66 declaration writing 68-69 parts of 68 typical declaration 69 information and belief 75-76 personal knowledge 69-75 persuasiveness, enhancing 80-85 documents supporting facts 82 risks of 63 shortcomings of 76—80 differences between motions and case theories 80 failure to recognize danger 79-80 miscommunication 77-79 pressure to fudge facts 77 use early in the case 79 arguing the law 107-25 legal authority, type of 110-17 background 110

similar cases 113 Sentencing Reform Act 116, ay Taylor v. Gasor, Inc. 112 matters of form 117-20 court rules governing 118-— 20 style 120 oral persuasion 121—25 criticizing opposition, avoidance of 124 fluidity of 123 raising an issue, timing of 123 Sentencing Reform Act 122 understanding the judge 122 written persuasion 107-17 brief writing 108 briefs, necessity of 108 briefs, parts of 108—09 policy arguments 109 Assimilated Crimes Act 116

c Criminal Justice Act

128

231

232

MOTION PRACTICE AND PERSUASION

D Darrington v. Wade 113 Daubert v. Merrell Dow Pharmaceuticals, Inc. 89 delivering the motion 131-43 ideas for motions 140-43 file raiding 142 legal research 141 problems 141 routine 140 trial preparation 141 processing procedures 132-34 automatic 132 ex parte 133 Federal Rule of Civil Procedure 7(b)(1) 133 jurisdictional variants 134 motion to submit or motion for a hearing 134 notice of hearing 133 roll call 133 using the motion 135-40 aiding in discovery 136 burdening the opposition

140 choosing not to file 140 delaying the case 138 educating the judge 137 educating the public 138 locking in testimony 136 obtaining an order 135 preserving an issue for appeal 136 Dred Scott case, motion from 145— =i!

E evidentiary hearings 87-104 burden of persuasion 88-89, 91 contradictory written motions, responses to 87 Daubert v. Merrell Dow Pharmaceuticals, Inc. 89

determing if a judge will hold 88-90 Daubert 90 examination techniques, also see with leading questions 92 with open questions 91, 93— 106 with open to leading questions 92 rules of evidence, appication of 89-9] Federal Rules of Evidence 71 types of motion 88 visual aids 104-06 documents 105 maps and diagrams 105 models and mock-ups 104 the real thing 105 examination techniques 93-104 by open question active listening 98 brevity, importance of 96 commands 96-97 control cross 101 control cross, shortcomings of 102 importance of 93 jewels 99 leading questions iT tO, 0103 National Institute of Trial Advocacy 101 parallel questions 98 Six interrogatory words 95 skills involved 93-94 transitions, use of 94

M models of persuasion Greek 15-17 ethos 15 logos 15

15-21

Index

a

pathos 15 modern 17-23 authority 17 consistency 17 liking 17 reciprocation 17 scarcity 18 social validation 17 shortcomings of 18-21 motion defined 1-10 civil versus criminal motions 9 Federal Rule of Criminal Procedure 47 9 contradictory motion documents for 4 contradictory motions 3-5 defined 3 housekeeping motion 3-10 documents for 4 reason for filing 3 routine 4 hybrids of contradictory and housekeeping motions 5 judge’s handling of motions 5 response to oral motion 5 response to written motions a motion terminology 9-11 motion to suppress 7-9 affidavits and declarations 7 affidavits and declarations, risks of 8 criminal law 7 main issue in 7 oral motions oral motions 2-3 importance of 3 judge hostility to 2 summary judgment motion 5—7 civil cases 6 defined 5 Federal Rule of Civil Procedure 56(e) 6

233

formality of 6 rules governing 6 written motions 2-3 motions, five hurdles

29-37

arguing the law, also see discussion with judge 32 memoranda 32 delivering the motion, also see

processing the motion, importance of 36 preparing the order, also see proposed order 32 presenting the facts, also see admissions 31 affidavit 31-32 answers to interrogatories 31 declarations 31 depositions 31 documents 31 evidentiary hearings 31 opposing motions 31 transcripts 31 unsupported statement of facts 30 requesting the order, also see first sentence of a motion 30 motions, supporting documents for 33-36 common patterns of successful motions 34-35 contradictory motions 33 four parts of written motions 33 housekeeping motions 33 opposing motions 34 Speedy Trial Act 33 motions, three critical factors 13-25 impact on judge 14-18 credibility 15 emotion 16 Greek model of persuasion 13 judge, importance of understanding 18-21

234

MOTION PRACTICE AND PERSUASION

modern model of persuasion 17 staff, dealing with

19

preserving the record for appeal 21-24 best approach 22 docket 23-24 documents 24 standards of review 22 transcripts 24-27 rules of procedure 25-27 copying old motions 26 finding 25 formalities 26 purpose of 25 researching 25

N National Institute of Trial Advocacy 101

P persuasion, flashpoints of 155—56 know the law 155 listen to the judge 155 make the motion 155 present the facts 155 preparing the order 127-30 Criminal Justice Act 128 errors, dealing with 129-30 Federal Rule of Civil Procedure 60(a) 130 Federal Rule of Criminal Procedure 36 130 order detailing judge's ruling 129 parts of order 128 address block 128 findings of law and facts 128 signature block for the judge 128

the order itself 128 proposed orders 129 presenting the facts 53-62 conceding issues, avoidance of

60 deadlines, tight 60 determining what facts to present 54 issues to consider 54 facts already before the judge 54 facts not in record 57 Federal Rules of Civil Procedure 33 grounds for dismissal of an action 55-56 how the facts should be presented 54 source material, quoting from 61 supporting affidavits 56 supporting facts, purpose of 62 unsupported statement of facts 54 what facts to include 57 details, importance of 57-58

requesting the order 39-50 broad motions, problems with 48 clutter, avoidance of 41-44 complex orders 41 compliance with a rule or statute 43 desired order, description of 41 Federal Civil Rules 46 Federal Criminal Rules 46 Rule 12((b)(c) 44

Rule 12.2 43 Rule 17(a) 43

Federal Rule of Appellant Procedures 10 43 first sentence elements of 40

Index CCC

eee

rrr

importance of 40 grounds for the motion 46 defined 46 writing before facts have been developed 48 last request 50 legal cliches 41-43 motions, improvements to 39 pursuant-to clause 43-44 run-on sentences 46 therefore clause 49

S Sentencing Reform Act 116, 117, 122 Speedy Trial Act 33

T Taylor v. Gasor, Inc.

112

————

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NATIONAL UNIVERSITY LIBRARY

Motion practice and

DEMCO

MOTION

PRACTICE AND

030

PERSUASION Motions are an essential piece of a winning litigation strategy. An effective motion can solve problems for lawyers and clients and put a case in a better position to win at trial. To take advantage of these opportunities, a litigator must be a master at making and opposing motions, particularly the written motion.

This book examines the fundamental principles of motion practice and will help you craft motions that address specific legal needs in clear and persuasive prose. Don’t copy an old motion and struggle to make it apply to your case. Write a motion with increased clarity and power. With the tips and strategies outlined in the book, you will create original motions that will help you persuade — and win. Instead of merely laying out rules, this book outlines the analysis a

lawyer must provide in writing and presenting a motion. It also covers: the three critical factors you must consider in preparing or

opposing any motion and the five hurdles a motion must overcome to result in an order.

Motion Practice and Persuasion is a must-read for new lawyers and for lawyers who want to fine-tune their motion practice skills. You won't write motions the same way again.

ISBN

1-59031-630-4

Law/Reference

Price: $65.00 PC:

9'781590"316306 Printed in the U.S.A.

5310355