1 a pretrial motion practice woods 1 hb lead-conf cx
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Transcript of 1 a pretrial motion practice woods 1 hb lead-conf cx
Lead Litigation Conference 2013
November 14-15, 2013
Pretrial Motion Practice
Tips For Successful Motion Practice in New York’s Courts
I. Before you Begin Drafting
II. Motion Drafting – Best and Worst Practices
III. Drafting in Anticipation of an Appeal
IV. Oral Argument
V. Pre and Post-Argument Submissions
VI. Summary Judgment Motions
Before You Begin Drafting
Think about your argument Review your adversary’s pleadings Review the evidence marshaled in discovery Perform a search for new precedent
◦ Lead Poisoning Decisions◦ General Premises Liability Decisions
Best and Worst Practices
Preliminary Statement – “Best Practices”
Clearly explain what you want!
Clearly explain who you want it for!
Clearly explain why you should get what you want!
Best and Worst Practices
Preliminary Statement – “Worst Practices” Comprising your Preliminary Statement
with vague, factually unsupported assertions:◦ “Plaintiff cannot raise a triable question of fact”◦ “Plaintiff’s arguments are discussed below”
• Comprising your Preliminary Statement with detailed factual and legal argument that will appear in the body of your Brief
Best and Worst Practices
Presentation of Evidence – “Best Practice”
Tell the Court a Story
Tell the Court why you are presenting each piece of evidence
Tell the Court whether any material inferences can or cannot be drawn from the evidence
Best and Worst PracticesPresentation of Evidence – “Worst Practices”
Providing the Court with an Attorney Affidavit that contains nothing but your interpretation of the evidence
Paraphrasing when you can quote
Providing the Court with a long list of facts
Best and Worst Practices
Presentation of Case Law – “Best Practices” Provide the Court with an understanding of
the facts, reasoning and holdings of analogous precedent
Quote case law whenever possible
Distinguish adverse precedent
Best and Worst Practices
Presentation of Case Law – “Worst Practices” Over citing
Overusing parentheticals
Stretching the case law
Best and Worst Practices
Presenting the Novel Legal Argument “Common sense” argument that is neither
supported nor rejected by controlling precedent
Argument supported by the case law of another jurisdiction
Best and Worst Practices
Presenting the Novel Legal Argument Present as an alternative argument when
the primary argument is not incredibly strong
Protect your credibility by advising the Court that you are not depending on the argument
Editing Your Motion Papers Always let a period of 24 hours lapse
between the time you finish drafting and the time you begin editing (more if possible)
Always ask a colleague to proofread your papers
Always avoid the following: ◦ “clearly” or “obviously”◦ “the court should ….”◦ “it is plaintiff’s position that ….”◦ “assuming, arguendo ….” (when making a factual
argument)
Drafting in Anticipation of the Appeal
New York Trial Court Rule 202.8:“[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law”General Rule in the Appellate Courts:A Memorandum of Law is not to be included in the Record on Appeal Montefiore Med. Ctr. V. Crest Plaza LLC, 889 N.Y.S.2d 506
(Sup. Crt. 2009); In re Taylor, 265 A.D. 858 (2nd Dept. 1942); 380 Yorktown Food Corp. v. 380 Downing Dr., 35 Misc. 3d
1243(A)
Drafting in Anticipation of the Appeal
Your argument is preserved when:(1) Your Attorney Affidavit contains a
discussion of all of the facts essential to make the argument; and
(2) Your Attorney Affidavit introduces the Court to the legal argument
Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405 (1st Dept. 2009);
Bock v. Magee, 146 A.D.2d 730 (2nd Dept. 1989); and Gerdowsky v. Crain’s New York Business, 188 A.D.2d 93 (1st
Dept. 1993)
Drafting in Anticipation of the Appeal Byrd v. Roneker, 90 A.D.3d 1648 (4th
Dept., 2011)
“we conclude that plaintiff’s memorandum of law was properly included in the record on appeal, but only for the limited purpose of determining whether certain of plaintiff’s contentions are preserved for our review”
Drafting in Anticipation of the Appeal
Additional Tips If an authority is not cited in a major
reporter, make sure you attach it to your Attorney Affidavit◦ Trial Court Orders◦ Statutory History◦ Peer Reviewed Literature
• Attach an affidavit from your client, even if sufficient evidence already exists in the deposition testimony
Oral Argument
Preparing for Oral Argument Ask colleagues about the Judge’s style of oral
argument
Stage a mock argument of your weakest points with a colleague
Shepardize your case law the night before the argument
Consider whether a visual aid would be helpful
Oral Argument
Use of Visual Aids Consider using for:
◦ Complex fact patterns
◦ Important Photograph Evidence
◦ Key quotes from case law that you went to stress to the Court
Oral Argument
Phrases to Avoid “With all due respect ….”
“I don’t understand why the Court ruled this way ….”
“As you know, Your Honor ….”
Pre and Post-Argument Submissions General Rule - Must seek Court permission
in order to make these submissions. See, Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624 (1st Dept. 1995); and, Kushaqua Estates Inc. v. Bonded Concrete Inc., 215 A.D.2d 993 (3RD Dept. 1995).
Best Practice – Draft and send to the Court when:◦ Your adversary has raised a new argument in reply
papers or at oral argument◦ Your adversary has improperly served his motion papers◦ A new opinion has been issued which has potential to
impact the outcome of the motion being decided in your case.
Summary Judgment Motions Raising triable questions of fact with a
mortgage agreement
1. Right of Entry & Duty to Make Repairs;2. Knowledge that Property was built Prior to
1978;3. Knowledge of Chipping Paint at Property;4. Knowledge of Health Hazards of Lead-Based
Paint; and5. Knowledge of Young Children at Property.
Summary Judgment Motions• Raising triable questions of fact with a
mortgage agreement1. Right of Entry & Duty to Make Repairs;2. Knowledge that Property was built Prior to 1978;3. Knowledge of Chipping Paint at Property;4. Knowledge of Health Hazards of Lead-Based
Paint ; and5. Knowledge of Young Children at Property.
Questions