Motions are a common in civil litigation. Despite this, it is still easy to make mistakes. Below are some helpful tips to consider when bringing a motion:
- Before bringing the motion consider whether it is really worth it to bring the motion (consider the upside and downside, e.g. costs to the client, court time, looking unreasonable). See if the issue can be resolved by telephone or a case conference.
- Narrow down the issues for the motion. Be focused. If you can consent on some parts in advance with opposing counsel, then do it.
- Be clear on the relief that you are seeking in the motion.
- Make a list of the good facts and bad facts for your case. Be prepared to acknowledge the bad facts in your materials and in oral submissions.
- When presenting facts to the court make sure that they are accurate. Don’t mislead the court.
- Think about who the affiant should be. Who has the best first-hand knowledge? Is it the client? Remember whoever it is may be cross-examined and that the deemed undertaking rule applies to discovery.
- If the other side has insufficient evidence, is it worth it to cross-examine? Will you be giving them the opportunity to make an incomplete record complete.
- Be brief. Do you really need to put every letter sent to each other in the motion record?
- With respect to the factum: say what the issue is upfront that you are asking the judge to decide. Be focused. You don’t need to cite a case for every proposition. The judge does not want to read 40 cases. Be selective. Choose the leading, latest, and local cases.
- If it is a large motion, then use a compendium. Have the key documents (or excerpts) in there. Prepare the compendium while you prepare your oral argument so that it is relevant.
- Be familiar with CaseLines so it does not detract from your submissions.
- Preparation is 90% of any job, including winning a motion.
- Don’t make the case personal.