Conducting Effective Motions Practice

Transcription

1 1/16/2017 Conducting Effective Motions Practice The Basics: CLEAR STATEMENT OF THE SITUATION CLEAR STATEMENT OF THE LAW CLEAR EXPLANATION WHY RELIEF SOUGHT IS JUST FACTUAL SUPPORT IF CONTESTED. E.G. AFFIDAVIT 1/16/

2 1/16/2017 Motions to Compel and for Protective Order Rule 26 and Rule 37 Meet and Confer Obligation Conferred in good faith to resolve the dispute Support for motion The Airing of Grievances. 1/16/ SUMMARY JUDGMENT FED AND STATE Rule 56: no genuine dispute as to any material fact Support for facts asserted to be in dispute or not: materials in the record including Statement of Undisputed Facts 1/16/

3 1/16/2017 Summary Judgment (cont.) Statement of Disputed Facts Lesser pleading standard in Vermont Very developed federal case law on what constitutes a genuine issue of material fact. Vermont adopts some but not all. 1/16/ Summary Judgment (cont.) Non-moving party is entitled to have all inferences drawn in its favor Must present admissible evidence showing there is a genuine fact dispute 1/16/

4 1/16/2017 Trial Preparation Issues: Organizing and Presenting Your Story Presenting Your Story What s in the case? Motions in Limine Developing a Trial Theme Some notes on organizing for Trial What matters in an opening? 1/16/

5 1/16/2017 Motions in Limine What evidence will come in will define your story Avoid surprises: better to know your story than have it told to you at trial! The more important and complex the issue, the earlier you should present it to the trial judge Judge s comfort level and preferences vary Know your Judge s preferences 1/16/ Developing a Trial Theme Jurors think like people, lawyers don t always! So, how do people think? 1/16/

6 1/16/2017 Carl Jung Archetypes universal, archaic patterns, images and symbols Innate and developed through culture Embodied in the collective unconsciousness 1/16/ The Hero Quest Pattern Joseph Campbell, The Power of Myth Common themes in western stories: Ordinary world Call to Adventure Refusal of the Call Meeting with the Mentor The Ordeal The Reward The Road Back 1/16/

7 1/16/2017 The Hero Quest Story (cont.) Examples: -- Moby Dick -- The Ring Trilogy -- Star Wars -- Northern Exposure -- Harry Potter Common themes common interpretation, common understanding? 1/16/ The Seven Themes of Advertising Overcoming the monster Rebirth/Comeback story/redemption Quest Journey and Return Rags to Riches Tragedy Comedy 1/16/

8 1/16/2017 Everything Important I Learned in Kindergarten It s mine He s not sharing She started it He didn t clean up his mess Say you are sorry Don t hit people 1/16/ Lawyers adoption of these themes There is power in the one-line case summary like the one-line movie theme: In space, no one can hear you scream. Aliens We are not alone. Close Encounters Long ago, in a Galaxy Far, Far away His whole life was a million-to-one shot, Rocky Make America Great Again Can you make a tag-line that works for your case? 1/16/

9 1/16/2017 One word themes to help focus your case: What is my best story? Responsibility Truth Civility Justice Greed Defendant was running late Good versus evil Weak versus powerful; David v. Goliath Stuff happens Perseverance 1/16/ One word themes (cont.) Sacrifice Obedience Order Plaintiff will never be normal again Loyalty Expectation No objective evidence It was just an accident Integrity Credibility 1/16/

10 1/16/2017 Sum up of Trial Themes: Find one that speaks like a person Keep it simple, make sure you can stick to it big picture Develop in discovery Use from the first instance with the jury: voir dire, opening. Repeat the theme KEEP IT SIMPLE 1/16/ Opening Issues: Surveys repeatedly show jurors make up their minds within minutes of hearing from lawyers First impression is key. 1/16/

11 1/16/2017 Opening Issues (cont.) Must CONNECT! Honesty! You honestly believe your cause Passion! Keep it Simple! 1/16/ References and Acknowledgements Wikipedia, Carl Jung The Hero Quest Adweek, Tim Nudd, 7 Basic types of Stories: Which one is Your Brand Selling?, October 3, 2012 All I Really Need to Know I Learned in Kindergarten, Robert Fulgham, Ivy Books Publishing, 1989 Million Dollar Jury Trial Case Themes You Can Steal, Elliott Wilcox, Ideas for Case Themes, from Trial Preparation Tools, Beth D. Osowski, 1/16/

12 Discovery Strategy and Tactics 1 In general, the purpose of discovery is to make a trial less a game of blindman s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. Stella v. Spaulding, 2013 VT 8, 14, 193 Vt. 226, 67 A.3d 247 (quotation omitted) 2 1

13 Careening through the neighborhood with reckless abandon, none of them suspected that Tuffy was still tied up. 3 In every case a litigator should identify overall goals for the case and goals for discovery and should then formulate the most appropriate strategy to achieve those goals. Thenextstepistoimplementthebesttactics to carry out the strategy 4 2

14 Strategy: A plan of action to achieve a major aim or overall goal Plaintiff and defendant should both have overall case strategies May be the same, similar, or vastly different 5 Your approach to discovery should be consistent with your overall case strategy. 6 3

15 Tactics: Art or skill of employing available means to accomplish an end Each case involves numerous tactical decisions throughout the life of the case The tactical decisions related to discovery should be case-specific and carefully considered 7 How and when to use discovery should be informed by thoughtful case strategy and implemented with sound tactics 8 4

16 A civil plaintiff has a big advantage: knowing a case is coming For the most part, a defendant cannot use discovery tools until the suit has been filed For plaintiff, filing a lawsuit as quickly as possible may be giving away an advantage. 9 A civil plaintiff has a big advantage: knowing a case is coming For the most part, a defendant cannot use discovery tools until the suit has been filed Case strategy should start with: when to file the suit wheretofilethesuit what claims to bring 10 5

17 What are the discovery tools? 1. Depositions, either by written or oral examination 2. Interrogatories 3. Requests for production/permission to enter 11 What are the discovery tools? 4. Requests for physical or mental examination 5. Requests to admit 6. Subpoenas and subpoena duces tecum 7. Summary judgment motions (?) 12 6

18 The fundamental questions to ask yourself about discovery are: What is it that I need to know? How do I best go about getting it and getting it in the form that I want it? 13 Conducting discovery in any form Weigh what you hope to learn against what you might lose by conducting discovery. There are two main purposes to discovery: Learn missing information Pin down the opponent to a version or history of events for potential future impeachment 14 7

19 Conducting discovery in any form How critical is the information you are missing? How imperative is the need to pin down the opponent on certain points? 15 Conducting discovery in any form Are there other sources to obtain the information or other ways in which the opponent is already pinned down? How likely is it that your discovery will help you prepare your opponent or alert them to issues they might overlook? 16 8

20 Conducting discovery in any form How studied an answer are you willing to accept? Themoretimeapartyhastoprepareananswer, the more studied the answer will be. For example, an answer to an interrogatory is less spontaneous than an answer to a question in a deposition. 17 Conducting discovery in any form Rule of thumb: interrogatory or written question depositions are questions asked and answered by lawyers. They have their place, but they should only be used when a spontaneous answer is not important. 18 9

21 Conducting discovery in any form Should an lawyer take a deposition at all? They provide an opportunity for spontaneous answers but also preserve testimony that might otherwise not be available. Deposition questions should be tailored to avoid wiggle room later. The tighter the question, the greater its value. 19 Conducting discovery in any form Once you get the answer you want, do not go back for more. A good answer one time is just as valuable as the same answer multiple times Requests for admission are a good way to narrow issues. They are most effective for discrete facts rather than broad topics

22 Conducting discovery in any form IME/IPE: make sure your expert has the necessary documents and discovery before conducting the exam. The extent of information reviewed may be just as important in the eyes of the jury as the weight of that information. 21 Conducting discovery in any form In non-party discovery, is a subpoena necessary to get the information? Will the non-party cooperate without one? Don t take a deposition of a fact witness to an event at issue in the litigation until you have been to the scene of the event yourself, if possible

23 High above the hushed crowd, Rex tried to remain focused. Still, he couldn t shake one nagging thought: He was an old dog and this was a new trick. 23 Getting Ready for Trial 24 12

24 Do your homework on the judge! Most judges at pre-trial conference will ask how longthecasewilltake. Trytogiverealistic estimates and take advantage of the opportunity to schedule at the conference. 25 One of the purposes of a pretrial conference is to ascertain the necessity of an actual trial and to aid in negotiations for settlements in cases where that would best serve the interests of litigants and by this means stabilize the trial docket. In re Cartmell s Estate, 120 Vt. 234, , 138 A.2d 592, 595 (1958) 26 13

25 There are many things you can do ahead of time that will not impact your trial strategy, including marking and agreeing on admission of as many exhibits as possible, pre-marking exhibits that are not admitted by agreement, agreeing on calling witnesses out of turn, etc. 27 Do not file a bunch of motions in limine the morning of trial or the morning of jury selection! Raise matters suitable for motionsinlimineasearly as possible

26 A motion in limine is a useful device for limiting the issues and evidence prior to trial where that ispossible. However,...Themotionshouldbe used, if used at all, as a rifle and not as a shotgun. It is often impossible to make definitive evidentiary rulings prior to trial because admissibility will depend on the state of the evidence at the time of the ruling. State v. Dubois, 150 Vt. 600, 602, 556 A.2d 86, (1988) 29 In voir dire, don t make promises to jurors that you can t keep or that will box the judge in (eg. If any of you have anything you need to discuss privately, we can do it that way. ). If there are sensitive areas, consider an agreement to have the judge ask those questions

27 Avoid diminishing returns and lengthy voir dires: jurors tire quickly and you will lose points if you beat a point into the ground or overextend the questioning. 31 You should discuss sequestering witnesses: Rule 615 provides for sequestration but it is not automatic and must be requested Witnesses can remain in the court room after testifying in the case-in-chief 32 16

28 33 If you are going to use AV, make sure the equipment is available and do not use AV in an opening statement without knowing the judge s view on that practice. At the end of each day, give the judge a weather report about your any scheduling issues. Judges hate surprises

29 If you are going to use AV, make sure the equipment is available and do not use AV in an opening statement without knowing the judge s view on that practice. At the end of each day, give the judge a weather report about your any scheduling issues. Judges hate surprises

30 Deciding Whether to File for Summary Judgment 37 [S]ummary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Madowitz v. Woods at Killington Owners Ass n, 2010 VT 37, 9, 188 Vt. 197, 6 A.3d 1117 (quotation omitted) 38 19

31 Considerations to Bear in Mind How obvious is the basis for your SJ motion? How likely is it that your opponent will be able to craft an issue of fact in opposition? Sometimes a party will file for SJ as a fog ball, to tie up their opponent s pre-trial time and resources. 39 Considerations to Bear in Mind Can you use an SJ motion as a form of intimidation? Should you ask for oral argument? Consider the timing in relation to ADR Filing too early can result in denial due to inadequate time to conduct discovery 40 20

32 What is the best case for an SJ motion? A case with clear material facts that cannot be disputed for the purposes of the motion A case where filing the motion has little or no downside, like disclosing important trial strategy 41 What is the best case for an SJ motion? A case with law that can be easily applied to the facts at hand A motion that will dispose of all or a large portion of the case 42 21

33 43 ADR from the Court s Point of View 44 22

34 What is ADR? Broadly speaking, ADR includes: Mediation Arbitration, governed by the VAA Other forms of pretrial negotiation that avoid the necessity of going to trial 45 Vermont has a strong tradition of upholding arbitration awards wherever possible. This Court has long recognized the importance of arbitration as an alternative to litigation for the efficient resolution of disputes. Springfield Teachers Ass n v. Springfield School Directors, 167 Vt. 180, , 705 A.2d 541, (1997) 46 23

35 ADR needs to be done at the right time In formulating a discovery schedule, be able to explain to the court why you chose specific times for ADR 47 ADR needs to be done at the right time Be realistic: judges hate it when a case comes in for pre-trial and ADR hasn t happened but the ADR date has passed. If you need to delay, file a stipulation asking the court for more time

36 Most trial judges believe that ADR is a good way to resolve cases but are not likely to be as in-tune with the life of the case as the litigants are. Divorce practitioners: consider judicial settlement conferences, if available 49 Unintended consequences of ADR resolutions? ADR resolutions can result in erosions of jury benchmarks, making cases harder to evaluate for settlement purposes Reduction in trials & reduction in trial skills 50 25

37 ADR resolutions should be reduced to a written agreement, especially if there are contingencies ADR resolutions should say that they can be disclosed in the event of claimed breach. This eliminates the initial argument that you can t disclose what happened in mediation. 51 Note: the VAA requires that arbitration agreements be reduced to writing ADR resolutions should say that they can be disclosed in the event of claimed breach. This eliminates the initial argument that you can t disclose what happened in mediation

38 It is an open question in Vermont whether a court may inquire into the existence of an alleged oral settlement agreement from mediation. 53 California, Colorado, Delaware, Florida, Utah and Indiana say that courts are precluded from inquiring into alleged oral agreements reached during mediation. Courts in North Carolina and Oregon have enforced oral agreements reached during mediation. SeeReesev.TingeyCons.,2008 UT 7, n.3, 177 P.3d

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