Arguing Motions Effectively
By John E. Hullverson
Edited by Peg Healy
Category: Practice and Procedure
Volumes have been written on the finer points of arguing your case to a jury and, if that doesn't work, to an appellate court. Often overlooked, however, is the less glamorous but far more frequent form of oral advocacy: motion practice.
Occasionally viewed by trial lawyers as one of the drudgeries of the practice of law, and by law firms as a way to punish young associates, motion practice is often ignored by attorneys trying to build and maintain their skills. However, when it is understood that cases can be dramatically affected--even won or lost outright--on the basis of a single well-argued motion, it makes sense to give some thought to improving this area of your practice.
For those seeking to familiarize, or refamiliarize, themselves with the practice of arguing motions, the applicable rules are a good place to start. Federal Rules of Civil Procedure 7, 10, 11, and 12 set forth the form, content, and types of motions entertained in federal court. It is imperative to remember that all districts also have local rules governing motion practice in their courts. See Civil LR 7-1 through 7-13 (ND Cal); Local Civil Rules 7-1 through 7-19 (CD Cal); Civil Rule 7.1 (SD Cal); LR 37-251, 50-291, 56-260, 59-291, and 78-230 (ED Cal). Many of these rules can be found on websites: www.cand.uscourts.gov (ND Cal), www.cacd.uscourts.gov (CD Cal), www.casd.uscourts.gov (SD Cal), and www.caed.uscourts.gov (ED Cal).
Notably, written motions in federal court must be accompanied by a memorandum of points and authorities in support, a proposed order, and an affidavit or declaration if the motion relies on factual contentions. Remember, too, that if you oppose a written motion and wish to have an oral argument, you must file a timely written opposition. You won't be heard without one.
In state courts, motion practice is governed generally by California Rules of Court 301 through 391 (see www.courtinfo.ca.gov) and by Code of Civil Procedure sections 1003 et seq. These rules of court set out the proper format of written motions and other required moving papers, the briefing schedule, hearing procedures, and miscellaneous but useful rules covering such topics as the preparation and service of proposed orders by the prevailing party. These rules also set forth the format requirements for particular types of motions, most notably demurrers, discovery motions, and motions for summary judgment. At a minimum, the papers filed must include the motion or demurrer itself, a notice of hearing, and a conforming memorandum of points and authorities. See CRC 312, 313.
Don't forget to check the Code of Civil Procedure for substantive rules affecting motions, such as section 437c (summary judgment) and sections 2016 et seq. (discovery). Discovery motions, for example, must include a declaration showing the movant's reasonable and good faith attempt to informally resolve the dispute with opposing counsel. See, for example, CCP §2025(n) (protective order regarding deposition). Deviation from this rule is not only bad practice but subjects the moving attorney to sanctions and can prevent the motion from being heard. CCP §2023.
Code of Civil Procedure sections 1003-1020 address the proper filing and service of motions as well as telephone appearances at hearings (as to which, see also CRC 298). Other statutes may set the time period applicable to a given motion, such as Code of Civil Procedure section 418.10 (quash summons), section 435 (strike complaint), section 437c(a) (summary judgment), section 473 (relief from judgment), or section 659 (new trial). If there is no special statute, a motion may be made at any time when the relief requested would be appropriate. See CCP §§1005(b) (general time limits), 1005.5, 1054, 1054.1 (extension of time); CRC 317 (shortening time).
While each federal district court promulgates its own local rules governing motion practice, local rules relating to most pretrial proceedings in California state courts have been preempted. California Rule of Court 981.1(a), which took effect July 1, 2000, states that all local court rules "relating to pleadings, demurrers, ex parte applications, motions, discovery, provisional remedies, and form and format of papers" are "null and void ... unless otherwise permitted or required by statute or Judicial Council rule." This clearly preempts local rules that require additional documents; change time limits; or affect the form, format, or content of documents filed in law and motion matters generally.
Individual courts may still determine on which days, at which times, and in which courtrooms to hear motions, as well as other administrative rules of practice and procedure not inconsistent with the California Rules of Court. See Weil & Brown, California Practice Guide: Civil Procedure Before Trial §§9:8-9:13.2 (The Rutter Group 2001). See, for example, LA Sup Ct Rules 9.0 et seq.; Riverside Sup Ct Rules 2.0020; SF Unified LR 2.0, 3.3-3.5, 8.1-8.2; San Bernardino Super Ct Rules 310 et seq., 510 et seq. Failure to comply with local rules without good cause remains "unlawful interference with the proceedings of the court," subject to sanctions. CRC 227. More practically, you want to present your motion and arguments to the judge using his or her preferred method.
One final state rule to be thoroughly familiar with is Rule 324 on tentative rulings, amended effective July 1, 2000. Most California courts offer a tentative ruling procedure in civil law and motion matters. This means that prior to the hearing date the judge reviews the moving and opposition papers and issues a preliminary ruling, generally made available by telephone to the interested attorneys by 3 p.m. the day before the hearing. If, after considering the tentative ruling, either party wishes to appear and argue the motion orally at the hearing, that party must give telephone or personal notice by 4 p.m. the day before the hearing to opposing counsel and also to the court. The time deadlines for such notice are very tight, making familiarity with this rule critical.
In motion practice, just as in trial, the key to success is thorough preparation. Most motions are, in effect, won long before they have been argued; they are won by the attorney who has spent the most careful and thoughtful time preparing and planning an argument.
Since the judge is the audience for, and ultimate arbiter of, your argument, it is extremely helpful to get a sense of how that particular judge hears and rules on motions. Some judges have unusual procedural preferences; some are likely to entertain certain arguments more readily than others. A little research into these matters can never hurt and often pays great dividends. In large firms, don't be afraid to ask colleagues for their experiences with, and impressions of, the judge hearing your motion. Firmwide email works well for this and often generates useful tidbits of knowledge. In small firms or sole practice, make use of the several written resources that compile helpful information on California state and federal judges from long questionnaires, such as Judicial Profiles (Daily Journal Corp.).
Still, the best way to get a feel for how a judge hears motions is to attend a hearing and see for yourself. If that is impractical, often the next best source of reliable information about what a judge likes and dislikes in the way of procedure and oral argument is that judge's court clerk, law clerk, or secretary. Though no substitute for reading the rules and doing your homework, I have met only a few courtroom staffers who wouldn't offer helpful insight when approached in a respectful and friendly manner. They understand and appreciate that not only are you trying to prepare as best you can, but you are also trying to save them and the court time.
Knowledge of the opposing attorney is also important. Any insight that allows you to anticipate arguments countering your position will help. Once you understand to whom and against whom you will argue your motion, the next step is carefully planning your argument.
Keep It Simple
Most courts have time limits for argument, and even judges have limited attention spans. Effective arguments get to the heart of the matter quickly and convey their points succinctly. Prepare your argument so that within moments the judge knows: (1) whom you represent, (2) what it is you want, and (3) why it would be unjust not to give it to you.
Obviously, you must first know these things yourself. If you are arguing a motion in your own case, then you should be intimately familiar with the facts and circumstances that are most persuasive. However, for those who find themselves in the position of having a strange file thrust into their hands with a noticed motion on top, take pains to learn the file. Frequently the motion seems routine or the legal issue fairly well settled, and it can be tempting to rest on the well-reasoned legal argument stated in your briefs. But most judges will have already considered the issues and arguments presented and will have probing questions waiting for you. Under those circumstances, seemingly irrelevant facts and issues can quickly become relevant, and if you don't know your case, you will appear unprepared, and you will regret it.
Design and plan your argument with the same care and precision that went into drafting your moving papers. Know what facts sell your case and, when possible, structure your argument around them. Anticipate opposing counsel's arguments. An incredibly effective tool in crafting persuasive arguments is to play the devil's advocate and attack your argument as you believe a skilled opponent would. Pull no punches. If you find a weak spot, expect your opponent to find it too. Don't ignore a weakness--embrace it. Find the law or the facts that help lessen it and work them into your argument until you're satisfied it can withstand the tough questions and attacks sure to come. This exercise takes time and energy, but it is far better to recognize a flaw in your argument when you still have an opportunity to fix it than on law and motion day in front of the judge.
Prepare an outline, if necessary, of your argument, and become familiar enough with it that you don't need detailed notes. It goes without saying that arguments should not be read. Consider using a demonstrative exhibit when it can simplify issues or persuade better than words. In our multimedia age, people are conditioned to accept and welcome visual aids as effective communication tools. Judges are no different. If you have a demonstrative exhibit that illustrates your point, don't be afraid to use it. If you're relying on documentary exhibits, such as contracts or photographs, remember that they must be attached to your moving papers, separated by hard-paper dividers that are tabbed at the bottom and indexed. See CCP §1005(b); CRC §311(e). Some types of authorities, including California cases that have not been published in the advance sheets, must be attached as exhibits. CRC §311(f). Exhibits consisting of deposition testimony should include only the title page of the transcript and the relevant pages, with the important testimony highlighted. CRC 316. If you intend to argue and rely on case law not cited in the briefs, you should prepare highlighted copies (and a good explanation!) for the judge and opposing counsel.
Arguing the Motion
Persuasive argument begins from the moment you approach the bench. Your attitude must reflect your belief in your position and the confidence achieved through thorough preparation. If you are the movant, or if the tentative ruling was against you, respectfully and confidently greet the court and frame the issue before your opponent assumes control of the hearing. Conversely, if the tentative ruling was in your favor, respectfully greet the court and reiterate why the court's tentative ruling is well taken. Controlling the issue and framing it in a light most favorable to your client is often the key to victory. However, keep in mind that many times the judge will tell you who he or she wants to hear from first.
That judge may have heard 15 motions to compel that same morning, so your first few sentences must convey not only the specific legal remedy sought but (just as importantly) the practical effect the incorrect ruling will have on the parties and the court. For instance, in a medical malpractice case in which you represent the plaintiff and in which you claim the defense has untimely designated an expert witness to testify on the previously unchallenged issue of causation, the beginning of your argument might go as follows:
Good morning, Your Honor. My name is Bill Smith and I represent the plaintiff Ellen Richards in this medical malpractice case. Mrs. Richards suffered severe brain damage during a routine surgery when the defendant anesthesiologist failed to monitor her blood oxygen level. We are set for trial next week, and suddenly the defense has designated an expert to dispute causation. Judge, this issue has been undisputed until now, and we have no time to depose or otherwise adequately prepare to rebut this expert's testimony. We ask, therefore, that you grant our motion for protective order and prevent this expert from testifying, because, if he is allowed to render his opinion and we can't effectively challenge it, our case is sunk and Mrs. Richards's children will be saddled with the enormous costs of her care for the rest of her life.
If the judge asks you a question, answer it promptly and directly. Evasive answers are easy to spot and will only hurt you by showing you're afraid of your case. If you're faced with a tough question, answer it: A damaging, but short, response with a cogent explanation is better than a long-winded, nonresponsive answer that depends on the judge forgetting the question posed. (Don't count on that happening.) With thoughtful planning you should have already identified the weaknesses in your argument, anticipated the tough questions, and thought out your responses. Remember to use plain language as much as possible. Legal jargon, while sometimes necessary, is not compelling. And your well-reasoned argument won't persuade the judge if he or she can't find the way out of your grammatical labyrinth.
Know the difference between arguing your case and arguing with the judge. Arguing your case is how you win your motion; arguing with the judge is how you lose it. At all costs avoid sarcasm or any demeanor disrespectful to the judge, opposing counsel, or courtroom personnel.
Listen carefully to opposing counsel's arguments, and pay close attention to the judge's reaction to them. Often through words, questions, or tone a judge will indicate that he or she has been persuaded by your argument or that your opponent has failed to persuade. This is your clue to close your mouth and leave well enough alone. There is no sense in snatching defeat from the jaws of victory.
No matter how meticulously planned your argument, no matter how confident your attitude, you run a high risk of failure if you lack credibility, honesty, or professionalism. Honesty is the currency with which you purchase credibility. Credibility is perhaps the lawyer's greatest asset in attempting to persuade. Professional conduct should be manifest in every action a lawyer takes, both inside and outside the courtroom-our oath demands it, and our clients benefit from it. A succinct, well-founded argument, persuasively conveyed with credibility, honesty, and professionalism, will more often than not carry the day as well as well as the motion.
John E. Hullverson is in the litigation group at the San Francisco office of Hanson Bridgett Marcos Vlahos & Rudy.
Article updated: January 2004.