Arguing a Motion Before a Trial Court: Begin at the Beginning

This morning as I stood in line waiting my turn to argue a motion, I listened to some of the other arguments. It was a typical state-court docket call, in which the judge sat at his bench and waited for the lawyers to approach him with the file when they were ready to argue.

What ensued in most cases was four or five minutes of confusion, as the lawyers launched into their arguments without properly setting the stage for the judge.

What do I mean by "setting the stage"? I suppose each argument is unique in some respects, but I typically introduce myself; tell the judge which party I represent, including whether it's a plaintiff or defendant; describe the motion that's being argued (e.g., "We're here on my motion for a protective order"); and state the legal issue to be decided in a way that makes my position evident ("A protective order is necessary because the defendant wants my client to travel out of state for his deposition, when the rules do not require that"). Only then do I get into the facts and the law.

It seems hard to believe that lawyers would start their argument any other way. What I heard today, though, was lawyers starting smack in the middle of their arguments, e.g., "Your Honor, two weeks ago, the defendant's lawyer sent me a deposition notice for my client. It stated that the location of the deposition is in Indiana, where the defendant is headquartered. As your Honor knows, that's 300 miles away. I then filed a motion for a protective order. That's what we're here today about."

Eventually, you end up at the same point. If you begin at the beginning, however, you'll leave the judge feeling less confused, since he'll know from the start what he's going to be called upon to decide. That's information I think he'll want to know.

Comments

[Ray]

Excellent advice. The same principle applies to written submissions.

[Steve]

I work as a staff attorney in one of the circuit courts, helping the judges research and draft orders, and just the other day one of them complained about exactly what this posting is about: lawyers launching right into their arguments without giving any background info. From a judge's perspective, this is not only annoying, but it also makes at least some of the judges uncomforable, because it puts them in the position of having to say "Whoa, counsel, tell me what this is about," which makes it look like the judge is clueless about the case or hasn't read the briefs. Judges have to shift mental gears so many times per day that they cannot possibly instantly recall everything that comes up before them -- and attorneys are well advised to keep that in mind!

[Keith]

Good advice! I'm arguing a case in which I'm representing myself and sat in the other day to watch the motions being argued. All the lawyers did what you described -- jumped right into their case without any background information. Your post was helpful to me.
Thanks!

[Christine Anderson]

Thanks,

I think that is what I did in about 3 sentences this morning, and the Judge granted my motion over the other side's contest of it.

Essentially you are explaining to the judge the who, what, why behind the motion before you go into to much explanation about the facts and law.

Thanks for the information.

CA