Motion Hearings: Handing Cases to the Judge

During a motion hearing, the judge will often ask to see a case that supports the position you're arguing. Be sure to come prepared. Since you can't always predict which particular issue will be troubling to the judge, you might have to bring copies of several cases, some of which are only tangentially related to your main points.

Should you make "clean" copies of these cases for the judge? I don't think so. I prefer to hand the judge my copy--that is, the one for which I've taken the time to highlight all the best language. When the argument ends, that's the copy I magnanimously suggest the judge keep with the file if he or she decides to take the motion under advisement.

Perhaps you're worried that in handing over your copy of a case, you might be left empty-handed if the judge has questions about it during the argument. This isn't a problem if you remember to arrive at court with two identical sets of highlighted cases. When the judge takes your first copy, you can pull out the second for yourself.

Does all this work seem like overkill? It won't the next time your great case (undoubtedly the one you thought didn't matter) persuades the judge to rule in your favor. 

Comments

[Rob Boggs]

Actually you might want to bring three copies. I was once taken to task by a judge for giving him a highlighted case without also providing the opposing counsel with a highlighted copy. The judge felt that highlighting was a form of argument and that the other counsel was entitled to know what you were emphasizing.

[Evan]

Excellent point.

[FredN.]

I've done the 'hand up the highlighted copy' before, and one time the judge gave a wry little smile, and said, "I see counselor has decided what parts I should read and what parts I shouldn't."

It wasn't funny at the time, but it is now. The fact is, the judge actually did focus on the highlighted parts...

[Eh Nonymous]

"Highlighting is a form of argument" - a frivolous contention, but never when made by a judge to counsel.

If I bold every other word, that doesn't make it any different. I can draw the court's attention on the record to the bits I think are significant. But providing my (highlighted) work product incidentally to the judge, while providing the same _case_ but not _comments_ to opposing counsel doesn't rob them of any meaningful opportunity.

Unless it does.

And in any event, in case of a tie the judge wins. :)

[ipse dixit]

Would doing this (i.e. handing the judge and/or opposing counsel) constitute a waiver of work-product?

[Evan]

ipse dixit: You mean a waiver of the work-product privilege, I think, so that the opposing party could ask for all the work-product you've done on the case. I wouldn't worry about it myself. I can't imagine the opposing party filing a motion for your work product, then filing a motion to compel when you refuse to hand it over and arguing to the judge that you waived the privilege by letting the judge have a case. Others can weigh in if they disagree.

[Lex Aquila]

This is a great practice point. I've never had a chance to do this, but it's a great idea. I see little or no downside. Just bring the extra copy for opposing counsel as well as clean copies--just in the case the judge gets snippy such as the examples above.

[ipse dixit]

Evan,

I don't believe "work-product" is a privilege in the same sense that the "attorney-client privilege" is a privilege.

The work-product doctrine is simply a protection afforded lawyers.

[himself]

I attach copies of cases (marked up) when I give the judge curtesy copies.