“Suggestions for Superior Court docket Movement Practice”

A quite possibly helpful listing, from California Courtroom of Attraction Justice John Shepard Wiley Jr., who served quite a few several years on the L.A. Top-quality Court docket, and who before that was my colleague at UCLA Faculty of Regulation. Preserve in intellect that some of these have to do with the methods of the L.A. Exceptional Court docket (our nearby demo court docket), but most apply more broadly.

Published briefs

1. Understand what you can about your decide. Judges are persons, with worldviews and pet peeves and all the rest. Look at tailoring your presentation to your viewers. But do not pander. (“I fully grasp the Courtroom has a collie. I have two!”) When in question, err on the facet of formality and convention.
2. Straight away, summarize what action you want the court to get. The introduction upcoming should really present the heart of your argument. This is the most essential section of your temporary. Maintain enhancing until it is fine and concise. Your conclusion need to briefly reiterate the end result you urge.
3. Direct with your greatest and most vital argument. In the opposition and the reply, nevertheless, track the relocating paper’s organization, so audience effortlessly can comply with the discussion.
4. Emphasis on authorized authority. In state courtroom, adhere to revealed state instances on concerns of condition regulation. If a statute is decisive, anchor your argument in the statutory words. Set “plan arguments” past, or skip them. Trial judges normally regard them as arguments of previous resort: indicators you have no favorable statutes or circumstance law. But when distinguishing unfavorable precedents, display why it would be inadvisable to increase inapt precedent to this different condition.

5. If there is an essential and troublesome scenario, establish it and distinguish it as best you can. Disregarding a situation is unwise: they will see. Never test to trick opposing counsel or the court docket. That is poison.
6. By no means fudge a holding. The other side will capture you and make you fork out. Will not give them this option to harm your reliability. Be candid when a circumstance is just analogous somewhat than straight on position. Reveal the discrepancies and why the authority even now applies.
7. In opposition, answer to every argument and case in the opposing quick. In reply, do the very same. Ducking a issue will make viewers conclude you have no fantastic reaction and ought to shed. If a point is insubstantial, dispatch it swiftly but do not overlook it. Do not include new proof or a request for judicial detect in the reply, where the other side has no option to reply. Don’t exceed site limits.
8. Be concise. Edit. Then re-edit. As Fred Astaire stated, “Get it great. Then slash two minutes.”
9. Attack the argument, not the individual. Forcefully attacking an argument is fantastic. (“This argument will make no perception.”) As for opposing counsel, nonetheless, eliminate them with kindness. (E.g., “my colleague,” “my buddy,” “misplaced” or “incorrect” or “erroneous” somewhat than “absurd” or “misrepresenting” or “lousy faith” or “misleading the courtroom.”) This is specifically true if opposing counsel is calling you names. Abusive opposing counsel give you a splendid chance. Really don’t stoop: make the contrast in professionalism noticeable. Be the attorney your mom desired you to be. The courtroom may possibly properly discover and try to remember. When publicly on the attack (and in tense non-public negotiations), test referring to the opposing party or client alternatively than right to opposing counsel being considerably less immediate can avoid triggering adrenal glands.
10. No footnotes. Persuasive argument is linear and persuasive. Footnotes are tangential and distracting. Judge Posner writes that footnote product peripheral to the argument can be deleted if critical it can be worked into the textual content. (Many judges do use footnotes them selves, but they will not fault you if you do not. Other judges will merely rejoice in your wonderful prose.) Applying footnotes to cheat on web page limits is discreditable.
11. If the movement is of a plan sort (like a summary judgment motion), devote negligible time describing its nature. Prevent boilerplate. No block quotations. Elmore Leonard told writers to “try out to leave out the portion that visitors are likely to skip.”
12. Prevent exclamation points, jargon, acronyms, or abbreviations (unless anyone currently is familiar with the abbreviation, like “FBI”). It is high-quality to shorten a identify in a apparent way (“Wingnut National” or “the lender”) but it is aggravating to have to search again in the brief to recall what “WNCU” or “MHNB” could possibly be. Avoid words and phrases you have never ever read any one truly say, like “therein” or “hereinafter.”
13. Decrease adjectives. Unadorned statements are potent. Let audience draw their own conclusions and choose their have adjectives. Clearly show, never inform.
14. Choose treatment on particulars. Use pinpoint webpage cites for each scenario. Do not tolerate grammar, spelling, or type glitches. Abide by the California Design Manual in California condition court docket. (For instance, see procedures 4:28.3 and 4:28.4.) When you have attained the stature of Decide Posner, then you might indulge your contempt for model manuals.
15. Reveals: use tabs, so readers can obtain substance conveniently. On the internet, add just about every exhibit independently, simply because there are no effortless tabs.

Oral argument

16. Do you even need oral argument? If the court docket posts a comprehensive tentative ruling, look at whether oral argument will be productive. Should really you speak to opposing counsel and submit on the tentative?
17. If you do surface for oral argument, put together, get ready, get ready. You (or a person) wrote the temporary a even though back, but the judge might have been poring around the conditions only seconds prior to taking the bench. Be all set.
18. Start your present appropriate: when the courtroom phone calls for appearances, point out your name distinctly and with brio, and identify your customer. Please will not start out with a mumble. The cliche about never ever finding a 2nd opportunity to make a initial impression is exhausted but accurate. If the movement is significant, seem in human being and not on the cellphone, for it is vital to view your audience cautiously. Do not be expecting anybody to e-mail or write-up a composed tentative ruling you are not there to acquire in particular person.
19. Lead with your most effective and most vital argument. You might get only minutes.
20. If there is new authority, print out and highlight at least 3 copies of the new case: a single for court, 1 for opposing counsel, and just one for you. Give it to opposing counsel perfectly before you start your argument.
21. Hear cautiously to what the decide says. These words and phrases are precious: they are home windows straight into the thoughts of your decisionmaker. Reply to that content material. Reply questions immediately. Dodging them is counterproductive. Start off with a plain yes or no, if feasible, and then reveal.
22. If the decide concerns a created tentative ruling, thank the court for this energy (especially if it is against you). Check with for a quick recess to analyze the tentative very carefully and, if it is towards you, to track down its central weak spot. Focus on that linchpin fairly than on disputing each level, begin to finish.
23. Never interrupt the choose. If the decide interrupts you, promptly quit speaking, hear carefully, and reply to that position. Do not interrupt or deal with opposing counsel. When your colleague has concluded, stand and question, “Could I answer?” Feedback or thoughts to opposing counsel are improper, unless of course the decide phone calls for an informal and off-the-report working session. Some judges want you to stand when talking and desire “Your Honor” to “Choose.” (Area rule 3.95 used to demand this usage.) Err on the side of warning right until the judge states normally. Avoid “with thanks respect,” which numerous judges understand as insulting. “You guys” can be perceived as sexist and inappropriate to this formal environment.
24. Smile and be welcoming, even if the judge is a dragon. The basic rule is to retain your emotional interesting. After significant encounter, you could make a decision passion can be effective in the correct situation, but this device is sharp and can develop self-inflicted wounds. The persona of “tranquil, acceptable, and welcoming” is pretty much constantly improved.
25. Converse slowly. This can just take a large amount of apply. So follow. Do verbal tics plague your courtroom speech? Um? Like? You know? Eradicate these. With feed-back and sustained teaching and effort and hard work, you can do this. Demosthenes perfected his oratory by talking with pebbles in his mouth. General public speaking is an historical artwork variety. Study this heritage.
26. Hire a court reporter. If you never think the listening to is worth that charge, your appellate law firm afterwards may perhaps berate you and your trial choose could draw a silent and adverse inference.
27. Visible aids can be excellent. Be imaginative. If some item or gadget is critical to the situation, and portable, think about bringing and exhibiting that point.
28. If the tentative is in your favor and the decide claims the other side’s oral argument has not moved her, just say “very little even further, unless of course the court would like to listen to from me.” Right after argument and a final ruling, do not attempt even more argument.
29. Check with for precedence only if important.
30. Provide a proposed purchase for the judge to signal on the place.

Copyright 2023 by John Shepard Wiley Jr.