INSIGHT: Don’t Lose a Motion With These Too-Common Mistakes

One might expect obvious pratfalls to be avoided in motion practice, yet we repeatedly see the same unforced errors taking place by junior and experienced practitioners alike.

Despite technology providing support for legal calendars and docket reminders, and the existence of e-filing with courts and so many other efficiencies in the practice of law, certain mistakes nonetheless persist.

With an overtone of schadenfreude, we set out below situations where litigators lose motions without ever getting to the merits. Counsel should remain vigilant to avoid these too-common errors.

1. Show Up in Court On Time

Too often we have observed an out-of-breath lawyer running through courtroom doors, excitedly seeking out the courtroom deputy to learn that the argument took place as scheduled, or that the failure to appear was deemed a default on the motion. Whether a personal emergency, traffic or some other excuse might exist, one cannot ever take for granted that a court will wait for a late lawyer.

Calling the court when running late sometimes can avoid disaster, but the better course simply is to be punctual. And for counsel traveling from out of town, better to spend the prior night in a local hotel than to risk that a train/plane/automobile will not deliver you timely on the morning of an argument.

2. Read and Comply With Local Rules

The local rules contain important requirements and details relating to motion practice. Examples run from the mundane such as page or word, font size, and spacing limitations, to core procedural points such as whether a notice of motion and memorandum are both required and when and how to file motion papers.

And with ex parte applications, it is particularly critical to prepare supporting affidavits pursuant to the local rules, in order to avoid the delay of return trips to court if the first set of papers gets rejected for not complying with the local rule.

3. Read and Comply With the Judge’s Rules and/or Standing Orders

Judges often have rules and/or standing orders that diverge from or extend beyond the local rules. Before spending time and effort preparing motion papers needlessly, a lawyer better consult the judge’s rules for a pre-motion letter or meet-and-confer requirement.

Likewise, judges may direct how to request oral argument, indicate the timing of any argument or a related hearing, specify whether discovery obligations are suspended pending resolution of a related motion, or limit the number of permitted dispositive motions. Checking the rules early for how a judge handles such issues can avert serious pitfalls down the road.

4. Correctly Characterize the Motion

A court may not be tolerant when a motion omits or misapplies the correct rule or statute upon which it seeks relief. Is this a motion to dismiss or a motion for summary judgment? A motion to amend or a motion to supplement the complaint? A motion to dismiss for lack of venue or forum non conveniens?

Providing multiple or alternative sources of authority for the relief sought, especially when unsure how the court might prefer to proceed, is preferable to having the motion bounced because the court determines that the motion did not meet a fundamental requirement of citing the correct rule or statute.

5. Serve Papers on Opposing Counsel

It is an awkward moment when appearing for oral argument, and the court begins to refer to a submission by opposing counsel that you have not received. The court begins to lecture opposing counsel about the rule against ex parte communications, while opposing counsel fumbles to figure out whether service occurred and ultimately concedes it did not take place, and then the court disregards the submission.

This scenario seems especially to arise with reply or sur-reply briefs, or with in limine motions during trial, when preparation of papers takes place on a short time frame. Yet no excuse exists for failing to serve opposing counsel with papers being provided to the court.

6. Provide Support When Necessary and Appropriate

Advocates sometimes make statements in motions as attorney argument that should be supported by evidence. In doing so, practitioners risk that the court might simply disregard the argument as unsupported.

When necessary, statements in motions should be backed up by appropriate evidence such as documents and/or testimony, and that evidence should be clearly cited for the propositions argued.

7. Remember Who Has the Burden of Proof

Motions and oppositions to motions often point out a failure on the part of the adversary. However, advocates should keep in mind which party bears the burden of proof—both as to production and persuasion—when identifying an adverse party’s failure.

It is important not to run afoul of the burden of proof when casting an argument—for example, by accusing your adversary of failing to show something happened, when your client actually bears the burden of showing that the thing did not occur.

8. Notarize Papers When Required

The logistics of arranging for a notary to assist with the execution of a client affidavit can be difficult. Particularly with clients working remotely, conveying original documents can be challenging. However, complaints by clients about the difficulty of finding a notary, or of managing overnight mail delivery, need to be rebuffed by counsel. Sacrificing the viability of a motion due to such ministerial matters cannot be tolerated.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Adam H. Schuman is a partner in the New York office of Perkins Coie and previously was chief legal officer of Standard & Poor’s Ratings Services. Schuman also served as an assistant U.S. attorney in the Eastern District of New York and as special counsel for public integrity in the New York State Governor’s Office.

Gene Lee is a partner in the New York office of Perkins Coie who specializes in intellectual property litigation. He regularly represents clients in disputes in federal court, the USITC, and the Patent Trial and Appeal Board