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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 tomake a trial less a game of blindman’s bluffand more a fair contest with the basic issuesand facts disclosed to the fullest practicableextent.”

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

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Careening through theneighborhood with recklessabandon, none of themsuspected that Tuffy wasstill tied up.

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In every case a litigator should identify overallgoals for the case and goals for discovery andshould then formulate the most appropriatestrategy to achieve those goals.

The next step is to implement the best tacticsto carry out the strategy

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Strategy: A plan of action to achieve a majoraim 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 discoveryshould be consistent with youroverall case strategy.

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Tactics: Art or skill of employing availablemeans 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 beinformed by thoughtful case strategy andimplemented with sound tactics

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A civil plaintiff has a big advantage: knowing acase is coming

For the most part, a defendant cannot usediscovery tools until the suit has been filed

For plaintiff, filing a lawsuit as quickly aspossible may be giving away an advantage.

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A civil plaintiff has a big advantage: knowing acase is coming

For the most part, a defendant cannot usediscovery tools until the suit has been filed

Case strategy should start with:when to file the suitwhere to file the suitwhat claims to bring

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What are the discovery tools?

1. Depositions, either by written or oralexamination

2. Interrogatories

3. Requests for production/permission to enter

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4. Requests for physical or mental examination

5. Requests to admit

6. Subpoenas and subpoena duces tecum

7. Summary judgment motions (?)

What are the discovery tools?

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The fundamental questions to askyourself about discovery are:

• What is it that I need to know?

• How do I best go about getting it andgetting it in the form that I want it?

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Conducting discovery in any form

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

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

history of events for potential futureimpeachment

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 theopponent on certain points?

Conducting discovery in any form

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• Are there other sources to obtain the informationor other ways in which the opponent is alreadypinned down?

• How likely is it that your discovery will help youprepare your opponent or alert them to issuesthey might overlook?

Conducting discovery in any form

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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. Forexample, an answer to an interrogatory is lessspontaneous than an answer to a question in adeposition.

Conducting discovery in any form

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• Rule of thumb: interrogatory or written questiondepositions are questions asked and answered bylawyers. They have their place, but they shouldonly be used when a spontaneous answer is notimportant.

Conducting discovery in any form

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Conducting discovery in any form• Should an lawyer take a deposition at all? They

provide an opportunity for spontaneous answersbut also preserve testimony that might otherwisenot be available.• Deposition questions should be tailored to avoid

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

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• Once you get the answer you want, do not go backfor more. A good answer one time is just asvaluable as the same answer multiple times

• Requests for admission are a good way to narrowissues. They are most effective for discrete factsrather than broad topics.

Conducting discovery in any form

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• IME/IPE: make sure your expert has thenecessary documents and discovery beforeconducting the exam. The extent of informationreviewed may be just as important in the eyes ofthe jury as the weight of that information.

Conducting discovery in any form

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• In non-party discovery, is a subpoena necessaryto get the information? Will the non-partycooperate without one?

• Don’t take a deposition of a fact witness to anevent at issue in the litigation until you have beento the scene of the event yourself, if possible.

Conducting discovery in any form

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High above the hushedcrowd, Rex tried toremain focused. Still,he couldn’t shake onenagging thought: Hewas an old dog and thiswas a new trick.

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Getting Ready for Trial

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Most judges at pre-trial conference will ask howlong the case will take. Try to give realisticestimates and take advantage of theopportunity to schedule at the conference.

Do your homework on the judge!

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“One of the purposes of a pretrial conference isto ascertain the necessity of an actual trial andto aid in negotiations for settlements in caseswhere that would best serve the interests oflitigants and by this means stabilize the trialdocket.”

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 oftime that will not impact your trial strategy,including marking and agreeing on admissionof as many exhibits as possible, pre-markingexhibits that are not admitted by agreement,agreeing on calling witnesses out of turn, etc.

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Do not file a bunch ofmotions in limine themorning of trial or themorning of jury selection!Raise matters suitable formotions in limine as earlyas possible.

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“A motion in limine is a useful device for limitingthe issues and evidence prior to trial where thatis possible. However, . . . The motion should beused, if used at all, as a rifle and not as ashotgun. It is often impossible to make definitiveevidentiary rulings prior to trial becauseadmissibility will depend on the state of theevidence 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 jurorsthat you can’t keep or that will box the judgein (eg. “If any of you have anything you needto discuss privately, we can do it that way.”).

If there are sensitive areas, consider anagreement to have the judge ask thosequestions.

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Avoid diminishing returns and lengthy voirdires: jurors tire quickly and you will losepoints if you beat a point into the ground oroverextend the questioning.

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You should discuss sequestering witnesses: Rule615 provides for sequestration but it is notautomatic and must be requested

Witnesses can remain in the court room aftertestifying in the case-in-chief

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At the end of each day, give the judge aweather report about your any schedulingissues. Judges hate surprises.

If you are going to use AV, make sure theequipment is available and do not use AV inan opening statement without knowing thejudge’s view on that practice.

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At the end of each day, give the judge aweather report about your any schedulingissues. Judges hate surprises.

If you are going to use AV, make sure theequipment is available and do not use AV inan opening statement without knowing thejudge’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 whenthe record clearly shows that there is nogenuine issue of material fact and the movantis 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 SJmotion?

Considerations to Bear in Mind

• How likely is it that your opponent will beable to craft an issue of fact in opposition?

• Sometimes a party will file for SJ as a “fogball,” to tie up their opponent’s pre-trialtime and resources.

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Considerations to Bear in 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 toinadequate time to conduct discovery

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• A case with clear material facts that cannotbe disputed for the purposes of the motion

What is the best case for an SJ motion?

• A case where filing the motion has little orno downside, like disclosing important trialstrategy

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What is the best case for an SJ motion?

• A case with law that can be easily applied tothe facts at hand

• A motion that will dispose of all or a largeportion of the case

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ADR from the Court’s Point of View

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What is ADR?

Broadly speaking, ADR includes:

Other forms of pretrial negotiation thatavoid the necessity of going to trial

Mediation

Arbitration, governed by the VAA

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“Vermont has a strong tradition of upholdingarbitration awards wherever possible. ThisCourt has long recognized the importance ofarbitration as an alternative to litigation for theefficient 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 to be done at the right time

In formulating a discovery schedule, be able toexplain to the court why you chose specifictimes for ADR

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ADR needs to be done at the right time

Be realistic: judges hate it when a casecomes in for pre-trial and ADR hasn’thappened but the ADR date has passed.

If you need to delay, file a stipulation askingthe court for more time.

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Most trial judges believe that ADR is a goodway to resolve cases but are not likely to be asin-tune with the life of the case as the litigantsare.

Divorce practitioners: consider judicialsettlement conferences, if available

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• ADR resolutions can result inerosions of jury benchmarks, makingcases harder to evaluate forsettlement purposes

Unintended consequences of ADR resolutions?

• Reduction in trials & reduction in trialskills

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ADR resolutions should be reduced to a writtenagreement, especially if there arecontingencies

ADR resolutions should say that they can bedisclosed in the event of claimed breach. Thiseliminates the initial argument that “you can’tdisclose what happened in mediation.”

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ADR resolutions should say that they can bedisclosed in the event of claimed breach. Thiseliminates the initial argument that “you can’tdisclose what happened in mediation.”

Note: the VAA requires that arbitrationagreements be reduced to writing

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It is an open question in Vermont whether a courtmay inquire into the existence of an alleged oralsettlement agreement from mediation.

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California, Colorado,Delaware, Florida, Utahand Indiana say thatcourts are precludedfrom inquiring intoalleged oralagreements reachedduring mediation.

Courts in NorthCarolina and Oregonhave enforced oralagreements reachedduring mediation.

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

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