Conducting Effective Motions Practice The Basics: CLEAR STATEMENT - - PDF document

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Conducting Effective Motions Practice

The Basics:

• CLEAR STATEMENT OF THE “SITUATION”
• CLEAR STATEMENT OF THE LAW
• CLEAR EXPLANATION WHY RELIEF SOUGHT IS

JUST

• FACTUAL SUPPORT IF CONTESTED. E.G.

AFFIDAVIT

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Motions to Compel and for Protective Order

• Rule 26 and Rule 37
• Meet and Confer Obligation
• Conferred in good faith to resolve the

dispute

• Support for motion – The Airing of

Grievances.

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SUMMARY JUDGMENT FED AND STATE

• Rule 56:
• “no genuine dispute as to any material

fact”

• Support for facts asserted to be in

dispute or not: “materials in the record including…

• Statement of Undisputed Facts

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Summary Judgment (cont.)

• Statement of Disputed Facts
• Lesser pleading standard in Vermont
• Very developed federal case law on what

constitutes a “genuine issue of material fact.”

• Vermont adopts some but not all.

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Summary Judgment (cont.)

• Non-moving party is entitled to have all

inferences drawn in its favor

• Must present admissible evidence

showing there is a genuine fact dispute

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Trial Preparation Issues: Organizing and Presenting Your Story

Presenting Your Story

• What’s in the case? Motions in Limine
• Developing a Trial Theme
• Some notes on organizing for Trial
• What matters in an opening?

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Motions in Limine

• What evidence will come in will define your story
• Avoid surprises: better to know your story than

have it told to you at trial!

• The more important and complex the issue, the

earlier you should present it to the trial judge

• Judge’s comfort level and preferences vary
• Know your Judge’s preferences

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Developing a Trial Theme

• Jurors think like people, lawyers don’t

always!

• So, how do people think?

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Carl Jung

• Archetypes – universal, archaic patterns,

images and symbols

• Innate and developed through culture
• Embodied in the collective

unconsciousness

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The Hero Quest Pattern

• Joseph Campbell, The Power of Myth
• Common themes in western stories:
• Ordinary world
• Call to Adventure
• Refusal of the Call
• Meeting with the Mentor
• The Ordeal
• The Reward
• The Road Back

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The Hero Quest Story (cont.)

Examples:

• - Moby Dick
• - The Ring Trilogy
• - Star Wars
• - Northern Exposure
• - Harry Potter

Common themes – common interpretation, common understanding?

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The Seven Themes of Advertising

• Overcoming the monster
• Rebirth/Comeback story/Redemption
• Quest
• Journey and Return
• Rags to Riches
• Tragedy
• Comedy

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Everything Important I Learned in Kindergarten…

• It’s mine
• He’s not sharing
• She started it
• He didn’t clean up his mess
• Say you are sorry
• Don’t hit people

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Lawyers’ adoption of these themes…

• There is power in the one-line case summary – like

the one-line movie theme:

• “In space, no one can hear you scream.” Aliens
• “We are not alone.” Close Encounters
• “Long ago, in a Galaxy Far, Far away”
• “His whole life was a million-to-one shot”, Rocky
• “Make America Great Again”

Can you make a tag-line that works for your case?

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One word themes to help focus your case: What is my best story?

• Responsibility
• Truth
• Civility
• Justice
• Greed
• Defendant was running late
• Good versus evil
• Weak versus powerful; David v. Goliath
• Stuff happens
• Perseverance

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One word themes (cont.)

• Sacrifice
• Obedience
• Order
• Plaintiff will never be normal again
• Loyalty
• Expectation
• No objective evidence
• It was just an accident
• Integrity
• Credibility

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Sum up of Trial Themes:

• Find one that speaks like a person
• Keep it simple, make sure you can stick to

it big picture

• Develop in discovery
• Use from the first instance with the jury:

voir dire, opening.

• Repeat the theme – KEEP IT SIMPLE

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Opening Issues:

• Surveys repeatedly show jurors make up

their minds within minutes of hearing from lawyers

• First impression is key.

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Opening Issues (cont.)

• Must CONNECT!
• Honesty! You honestly believe your

cause

• Passion!
• Keep it Simple!

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References and Acknowledgements

• Wikipedia, Carl Jung
• www.thewritersjourney.com, The Hero Quest
• Adweek, Tim Nudd, “7 Basic types of Stories: Which one is

Your Brand Selling?,” October 3, 2012

• All I Really Need to Know I Learned in Kindergarten, Robert

Fulgham, Ivy Books Publishing, 1989

• “Million Dollar Jury Trial Case Themes You Can Steal,” Elliott

Wilcox, www.trialtheater.com

• “Ideas for Case Themes,” from Trial Preparation Tools, Beth D.

Osowski, www.jamespublishing.com

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Discovery Strategy and Tactics

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“In general, the purpose of discovery is to make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”

Stella v. Spaulding, 2013 VT 8, ¶ 14, 193 Vt. 226, 67 A.3d 247 (quotation omitted)

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Careening through the neighborhood with reckless abandon, none

• f

them suspected that Tuffy was still tied up.

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In every case a litigator should identify overall goals for the case and goals for discovery and should then formulate the most appropriate strategy to achieve those goals. The next step is to implement the best tactics tactics to carry out the strat strategy gy

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St Strat rategy gy: A plan of action to achieve a major aim or overall goal

Plaintiff and defendant should both have overall case strategies May be the same, similar, or vastly different

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Your approach to discovery should be consistent with your

• verall case strategy.

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Ta Tactics: Art or skill of employing available means to accomplish an end

Each case involves numerous tactical decisions throughout the life of the case The tactical decisions related to discovery should be case-specific and carefully considered

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How and when to use discovery should be informed by thoughtful case strategy and implemented with sound tactics

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A civil plaintif plaintiff has a big advantage: knowing a case is coming For the most part, a def defendant ndant cannot use discovery tools until the suit has been filed For plaintif plaintiff, filing a lawsuit as quickly as possible may be giving away an advantage.

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A civil plaintif plaintiff has a big advantage: knowing a case is coming For the most part, a def defendant ndant cannot use discovery tools until the suit has been filed Case strategy should start with: when when to file le the the suit uit where t e to file t e the suit what what claims claims to bring bring

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What are the disco What are the discover ery y tools?

• ols?

1. Depositions Depositions, either by written

• r
• ral

examination

• 2. Int

Interr rrogat

• gatories
• ries
• 3. Requests

ests for

• r pr

production/permission

• duction/permission to ent

enter

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• 4. Requests

ests for

• r ph

physical ysical or

• r mental

mental examination amination

• 5. Requests

ests to admit it

• 6. Subpoenas

Subpoenas and nd subpoena subpoena duces duces tecum ecum

• 7. Summar

Summary judgment judgment mo motions tions (?)

What are the disco What are the discover ery y tools?

• ols?

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The fundamental questions to ask yourself about discovery are:

• What is it that I need to know?
• How do I best go about getting it and

getting it in the form that I want it?

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Conducting disco Conducting discover ery in y in an any y form rm

Weigh what you hope to learn against what you might lose by conducting discovery.

• Learn missing information
• Pin down the opponent to a version or

history of events for potential future impeachment There are two main purposes to discovery:

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• How critical is the information you are missing?
• How imperative is the need to pin down the
• pponent on certain points?

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• Are there other sources to obtain the information
• r other ways in which the opponent is already

pinned down?

• How likely is it that your discovery will help you

prepare your opponent or alert them to issues they might overlook?

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• How studied an answer are you willing to accept?

The more time a party has to prepare an answer, the more studied the answer will be. For example, an answer to an interrogatory is less spontaneous than an answer to a question in a deposition.

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• Rule of thumb: interrogatory or written question

depositions are questions asked and answered by lawyers. They have their place, but they should

• nly be used when a spontaneous answer is not

important.

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• Should an lawyer take a deposition at all? They

provide an opportunity for spontaneous answers but also preserve testimony that might otherwise not be available.

• Deposition questions should be tailored to avoid

“wiggle room” later. The tighter the question, the greater its value.

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• Once you get the answer you want, do not go back

for more. A good answer one time is just as valuable as the same answer multiple times

• Re

Requests for admission are a good way to narrow

• issues. They are most effective for discrete facts

rather than broad topics.

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• IME/IPE

IME/IPE: make sure your expert has the necessary documents and discovery before conducting the exam. The extent of information reviewed may be just as important in the eyes of the jury as the weight of that information.

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• In non-party discovery, is a subpoena necessary

to get the information? Will the non-party cooperate without one?

• Don’t take a deposition of a fact witness to an

event at issue in the litigation until you have been to the scene of the event yourself, if possible.

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High above the hushed crowd, Rex tried to remain focused. Still, he couldn’t shake one nagging thought: He was an old dog and this was a new trick.

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Getting Ready for Trial

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Most judges at pre-trial conference will ask how long the case will take. Try to give realistic estimates and take advantage

• f

the

• pportunity to schedule at the conference.

Do your homework on the judge!

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“One of the purposes of a pretrial conference is to ascertain the necessity of an actual trial and to aid in negotiations for settlements in cases where that would best serve the interests of litigants and by this means stabilize the trial docket.”

In re Cartmell’s Estate, 120 Vt. 234, 238-39, 138 A.2d 592, 595 (1958)

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There are many things you can do ahead of time that will not impact your trial strategy, including marking and agreeing on admission

• f as many exhibits as possible, pre-marking

exhibits that are not admitted by agreement, agreeing on calling witnesses out of turn, etc.

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Do not file a bunch of motions in limine the morning of trial or the morning of jury selection! Raise matters suitable for motions in limine as early as possible.

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“A motion in limine is a useful device for limiting the issues and evidence prior to trial where that is possible. However, . . . The motion should be used, if used at all, as a rifle and not as a

• shotgun. It is often impossible to make definitive

evidentiary rulings prior to trial because admissibility will depend on the state of the evidence at the time of the ruling.

State v. Dubois, 150 Vt. 600, 602, 556 A.2d 86, 87-88 (1988)

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In voir dire, don’t make promises to jurors that you can’t keep or that will box the judge in (eg. “If any of you have anything you need to discuss privately, we can do it that way.”). If there are sensitive areas, consider an agreement to have the judge ask those questions.

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Avoid diminishing returns and lengthy voir dires: jurors tire quickly and you will lose points if you beat a point into the ground or

• verextend the questioning.

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You should discuss seq sequest estering ring witnesses witnesses: Rule 615 provides for sequestration but it is not automatic and must be requested Witnesses can remain in the court room after testifying in the case-in-chief

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At the end of each day, give the judge a weather report about your any scheduling

• issues. Judges

Judges hat hate surprises. surprises. If you are going to use AV, make sure the equipment is available and do not use AV in an opening statement without knowing the judge’s view on that practice.

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At the end of each day, give the judge a weather report about your any scheduling

• issues. Judges

Judges hat hate surprises. surprises. If you are going to use AV, make sure the equipment is available and do not use AV in an opening statement without knowing the judge’s view on that practice.

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Deciding Whether to File for Summary Judgment

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“[S]ummary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”

Madowitz v. Woods at Killington Owners’ Ass’n, 2010 VT 37, ¶ 9, 188 Vt. 197, 6 A.3d 1117 (quotation omitted)

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• How obvious is the basis for your SJ

motion?

Considerations t Considerations to Bear in Bear in Mind Mind

• How likely is it that your opponent will be

able to craft an issue of fact in opposition?

• Sometimes a party will file for SJ as a “fog

ball,” to tie up their opponent’s pre-trial time and resources.

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Considerations t Considerations to Bear in Bear in Mind Mind

• Can you use an SJ motion as a form of

“intimidation”?

• Should you ask for oral argument?
• Consider the timing in relation to ADR
• Filing too early can result in denial due to

inadequate time to conduct discovery

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• A case with clear material facts that cannot

be disputed for the purposes of the motion

What is the best case What is the best case for r an SJ mo an SJ motion? tion?

• A case where filing the motion has little or

no downside, like disclosing important trial strategy

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What is the best case What is the best case for r an SJ mo an SJ motion? tion?

• A case with law that can be easily applied to

the facts at hand

• A motion that will dispose of all or a large

portion of the case

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ADR from the Court’s Point of View

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What is ADR? What is ADR?

Broadly speaking, ADR includes: Other forms of pretrial negotiation that avoid the necessity of going to trial Mediation Arbitration, governed by the VAA

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“Vermont has a strong tradition of upholding arbitration awards wherever possible. This Court has long recognized the importance of arbitration as an alternative to litigation for the efficient resolution of disputes.”

Springfield Teachers Ass’n v. Springfield School Directors, 167 Vt. 180, 183-84, 705 A.2d 541, 543-44 (1997)

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ADR needs ADR needs to be done at the right time be done at the right time

In formulating a discovery schedule, be able to explain to the court why you chose specific times for ADR

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ADR needs ADR needs to be done at the right time be done at the right time

Be realistic: judges hate it when a case comes in for pre-trial and ADR hasn’t happened but the ADR date has passed. If you need to delay, file a stipulation asking the court for more time.

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Most trial judges believe that ADR is a good way to resolve cases but are not likely to be as in-tune with the life of the case as the litigants are. Divorce practitioners: consider judicial settlement conferences, if available

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• ADR

resolutions can result in erosions of jury benchmarks, making cases harder to evaluate for settlement purposes Unintended consequences of ADR resolutions?

• Reduction in trials & reduction in trial

skills

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ADR resolutions should be reduced to a written agreement, especially if there are contingencies ADR resolutions should say that they can be disclosed in the event of claimed breach. This eliminates the initial argument that “you can’t disclose what happened in mediation.”

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ADR resolutions should say that they can be disclosed in the event of claimed breach. This eliminates the initial argument that “you can’t disclose what happened in mediation.” Note: the VAA requires that arbitration agreements be reduced to writing

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It is an open question in Vermont whether a court may inquire into the existence of an alleged oral settlement agreement from mediation.

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California, Colorado, Delaware, Florida, Utah and Indiana say that courts are precluded from inquiring into alleged

• ral

agreements reached during mediation. Courts in North Carolina and Oregon have enforced

• ral

agreements reached during mediation.

See Reese v. Tingey Cons., 2008 UT 7, n.3, 177 P.3d 605.

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