Don't Throw Away Your Shot-Motion Practice in the Age of Pandemic

• Author: Karen L. Stevenson
• Pages: 18-19

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

Many lawyers went to law school dre aming of

arguing i n court—using polished oratory a nd

poise to persuade the judge. B ut the reality of

federal practice t hese days is that oral argument

is rare, and tri als are few and far between.

Even before the coronaviru s pandemic, lawyers lamented the

lack of opportunit y for oral argument. Because of bu rgeon-

ing dockets, judges of ten decide motions solely on the brief-

ing. Here in the C entral Distric t, Local Rule 7-15 allows the

court to “dispense wit h oral argument on any motion except

where an oral heari ng is required by statutes, the [Fe deral

Rules of Civil Proc edure,] or these Local Rules.”

Now video and telephonic proc eedings have replaced

most in-person cou rt appearances, and there is even more

emphasis on written b rieng. There fore, accuracy, thorough -

ness, and persu asiveness in the brief s are more important

than ever.

Control How You Tell Your Story

What makes a brief p ersuasive? Persuasiveness is a function

of two elements: stru cture and content . Structu re, or the

“architecture” of t he brief, is crucia l to its persuasiveness .

Lawyers someti mes do not spend enough time thinki ng

about how to structu re their brief and se em to rush right

into argument a nd case law. This is unwi se and, ultim ately,

unhelpful.

A well-organi zed brief makes the judge’s job easier. Take

time to rst outl ine the argument. Focus on the big pic ture.

What do you want the cour t to decide and why? What is the

analytica l pathway to get to that result? Carefully consider

which arguments should be primary, which are secondary,

and which should be jet tisoned altogether. Outlines can

go through several d rafts, especially for major disp ositive

motions. This is t ime well spent. The nal version of the

outline can be come a template for the table of contents. You

Don’t Throw Away Your Shot—

Motion Practice in the Age of

Pandemic

By Hon. Karen L . Stevenson, Litigation N ews Associate Editor

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