While most trial advocacy instruction focuses on trial skills, courtroom lawyers spend most of their time in pretrial court hearings known as motion practice. Pretrial motions can apply to both procedural and substantive matters.
This will be the first in a four part commentary on motion practice. This article will evaluate when to file motions (and when to refrain). My follow up article will provide drafting tips and next I will address how to respond to opposing party motions. I will conclude with a discussion of effective oral presentation techniques.
When a pretrial issue arises, one must assess whether to address it in court. Or can you remedy the issue with a phone call or e-mail? Try to negotiate an agreed order if possible. One rarely gets everything they ask for when presenting a motion and working out agreements is typically advantageous. An agreed resolution minimizes risk and expense for the client.
And sometimes doing nothing is the best course of action. Is the issue immaterial in the grand scheme of things? Does the issue really need attention or is it more of an inconsequential irritant.
Know when to act and when to refrain. Be mindful, not reactionary, when evaluating whether to proceed. Some lawyers are too quick to pull the trigger while others are impotent. Find a “golden mean” and use the court thoughtfully to resolve temporary matters advantageously.
Consider the following questions before proceeding:
- Is the desired relief legally permissible? What’s the authority?
- Is the goal practically achievable? “Hail Mary” requests rarely work.
- Will the motion make you or your client look stupid? Remember your need for credibility with the court transcends this case.
- Think like a chess player: what are the short and long term consequences of proceeding-both pro and con?
- Who is your judge? How receptive will he or she be to this issue?
- What will be the likely defense? How will the opposing attorney react/respond to the motion?
- Will the motion require an evidentiary hearing? Is one permissible under the rules?
- Will the effort necessary exceed the possible benefits even if successful?
- Will the benefits be outweighed by the risk of unforeseen consequences.
- How long will it take to get the relief? Will the issue become moot in the interim? Can the opposing party successfully stonewall the issue?
- Does the motion fit into a “big picture” strategy?
If you decide to proceed, be clear on what the goal is; what are you trying to achieve on behalf of your client? Know exactly what you want the Judge to do for you. Like any project, begin with the end in mind. Be clear about your “ask,” your desired relief. Before starting the motion, prepare the order you will ask the court to enter. This exercise may dissuade you from proceeding after you realize that what you thought you wanted for your client cannot be achieved. Never walk into the courtroom without first preparing an order with your desired relief.
Lawyers determine whether to proceed or not to. Clients should not be given unfettered decision making rights with regard to pretrial motions. Don’t let the tail wag the dog on strategic choices. Clients don’t have the experience or the big picture vision to understand the consequences and risks. We all want to please our clients but sometimes the best thing we can say to him or her is “no.” Clients deserve our wisdom and discretion, not servile compliance with their oftentimes emotionally driven requests.
In the next article I will discuss drafting tips to enhance the likelihood of a successful result.