SC Lawyer, Sept. 2003, #9. Trial Notebook Talking to the Judge.

• Author: By Professor James W. McElhaney

South Carolina Lawyer

2003.

SC Lawyer, Sept. 2003, #9.

Trial Notebook Talking to the Judge

South Carolina LawyerSeptember 2003Trial Notebook Talking to the JudgeBy Professor James W. McElhaneyJamie Torres had done her homework. She knew the facts and she knew the law. She understood what she needed to do. But she was worried anyway. She was up against Sandra Vandervoort, a senior associate with Windstrom & Crusher.

Ms. Vandervoort, who has a growing reputation as a hardball litigator, had made a serious motion for summary judgment against Jamie's client, Fast-n-Tite, a small local adhesives manufacturing company that was asking for $3.5 million from Master-Fold Envelopes for breach of contract.

Schooled by G. Patton Quist, the head of Windstrom & Crusher's 35-lawyer litigation department, Vandervoort had raised every conceivable motion, objection, and stumbling block to the case, trying to wear Jamie into submission.

The motion was set for argument in Judge Norton Wallop's court the following Thursday, and Jamie Torres had asked Angus and me to spend an evening listening to her practice her argument and critique how it went.

But it wasn't big-case jitters that were the problem on Tuesday evening. Jamie had watched too many other lawyers argue motions in district court and had assumed that what she saw and what she heard was what she should do.

Angus had given Sandra Vandervoort's argument for the summary judgment so Jamie would have something to shoot at. And I did my best to act like our favorite curmudgeon, Judge Wallop, at the same time and I ran the video camera that was set up on the bench.

Three minutes into Jamie's argument Angus said, "Stop. What are you trying to do?"

"Knock down everything the defendant says," said Jamie.

"Why all of it?" said Angus.

«Because it's her motion and I'm opposing it-every bit of it.»

"But see what that's led you to do. In three minutes you listed at least 15 different points. Instead of being narrow and focused, your argument spread out in all directions, faster than a spilled can of peppercorns rolling all over the kitchen floor.

«This is how I see lawyers argue these motions all the time,» said Jamie.

"That make it right?" said Angus.

"What should I do instead?" said Jamie

"What you have to do-as a bare minimum to defeat Sandra Vandervoort's motion-is simple. Show the judge there is at least...