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Category Archives: Motions

What Will Ignoring the Court Rules Get You? A Big Fat Benchslap.

08 Tuesday Aug 2017

Posted by Celia C. Elwell, RP in Bad Legal Writing, Benchslap, Brief Writing, Editing, Footnotes, Judges, Legal Writing, Motions, Plain Language, Proofreading, Readability

≈ Comments Off on What Will Ignoring the Court Rules Get You? A Big Fat Benchslap.

Tags

Court Rules, Editing, Findlaw, George Khoury, Legal Writing, William P. Statsky

Florida Judge Tosses Improperly Spaced Court Filing, by George Khoury, Esq., Strategist, The Findlaw Law Firm Business Blog  (with hat tip to William P. Statsky)

http://bit.ly/2uP9FyB

Mr. Khoury says that “[h]ell hath no fury like a Florida judge who receives an improperly formatted brief.” You better believe it. Why on earth would you ignore the format requirements in your court’s local rules? Folks, this just isn’t that hard.

The author of this motion for summary judgment thought the court would either ignore or not notice that the motion and supporting brief were spaced 1-1/2 lines rather than double-spaced. And who’s going to notice longer-than-usual footnotes? Really? Any judge or clerk whose job it is to read, read, and then read some more every dad-gum day.

Seriously, do you want to plow through heavy footnotes? Hands? Didn’t think so. Neither does your judge. Why risk alienating the person you are trying to convince? The stakes are too high to cling to a style of writing that sets you up to lose before anyone reads your motion or brief.

There are other, and much more effective ways, to trim a motion and brief. Editing is the key.

  1. Eliminate any unnecessary word.
  2. Remember that subject and verbs go together.
  3. Use short sentences.
  4. Delete all legalese. Yes, all of it. No excuses.
  5. You can always delete “in order.” Try it – it will not change the meaning in your sentence. These are an example of filler words that just take up space.
  6. Stop using phrases such as “brief of the plaintiff.” Write “plaintiff’s brief” instead.
  7. Never, never, never use long block quotations.
  8. Quote from a court opinion only when the court says it better than you can.

A quick search of this blog will give you tons of editing tips. I promise that you can get your point across with fewer words. It is not the number of words you use that count; it is what words you choose and how you say it. -CCE

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In Litigation, First Things First.

10 Thursday Mar 2016

Posted by Celia C. Elwell, RP in Brief Writing, Discovery, Evidence, Legal Writing, Litigation, Motions

≈ Comments Off on In Litigation, First Things First.

Tags

Brief Right, Brief Writing, Evidence, Kirby Griffis, Litigation, Motions

Motions first, depositions second, by Kirby Griffis, Brief Right!

http://briefright.com/motions-first/

In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed?

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Drafting The Order When You Win Your Motion? Beware Judicial Plagiarism!

19 Thursday Mar 2015

Posted by Celia C. Elwell, RP in Civil Procedure, Legal Analysis, Legal Argument, Legal Writing, Motions

≈ Comments Off on Drafting The Order When You Win Your Motion? Beware Judicial Plagiarism!

Tags

Conclusions of Law, Drafting Orders, Findings of Fact, Good Legal Writing Blog, Legal Writing, Tiffany Johnson

Judicial Plagiarism, by Tiffany Johnson, Esq., Good Legal Writing Blog

http://goodlegalwriting.com/2015/03/08/judicial-plagiarism/#more-497

Have you ever argued a motion and had the court rule directly from the bench awarding you your requested relief? Didn’t you feel like the cool kid that day? Chest puffed out a little bit while you tried to restrain yourself out of respect for opposing counsel? And after winning your motion, did the court dump the task of drafting the order on you? Of course it did. No court has time to actually draft orders, right? That’s the least you could do after the court was gracious enough to rule in your favor. And even though it was another tick to your to-do list, you secretly welcomed that chore, because it meant you got to tweak the wording of the order precisely to your client’s advantage. Am I off here? No. You know this drill.

Well, hold your horses, cowboy. A recent case from Tennessee illustrates the possible dangers that may lie ahead up in them there hills. . . .

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Defendant in Motor Vehicle Accident Files Motion In Limine to Exclude BAC Evidence – Nice Try.

18 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Admissibility, Evidence, Expert Witness Report, Expert Witnesses, Forensic Evidence, Litigation, Motion in Limine, Motions in Limine, Motor Vehicle

≈ Comments Off on Defendant in Motor Vehicle Accident Files Motion In Limine to Exclude BAC Evidence – Nice Try.

Tags

Autopsy Report, BAC Evidence, Daniel E. Cummins, Motion in Limine, Motor Vehicle Accident, TortTalk Blog

Admissibility of BAC Evidence Requires Proof of Intoxication, by Daniel E. Cummins, TortTalk Blog

http://www.torttalk.com/2015/03/admissibility-of-bac-evidence-requires.html

(Please contact Daniel Cummins at dancummins@comcast.net if you wish to review a copy of this opinion.)

In his recent February 9, 2015 Opinion in the case of Ritter v. Van Campen Motors, Inc., No. 12-00,379 (C.P. Lycoming Co. Feb. 9, 2015 Anderson, J.), Judge Dudley M. Anderson addressed Motions in Limine pertaining to DUI evidence filed by a Defendant in a motor vehicle accident case.

According to the Opinion, this matter involved a motor vehicle accident during which each party claimed that the other driver crossed the centerline resulting in the fatal accident. Accident reconstruction experts offered by each party came to opposite conclusions.

The Defendant filed a Motion In Limine to preclude evidence that the Defendant driver had a BAC of .257 at the time of the accident as confirmed by an autopsy report, testimony that the Defendant had been drinking prior to driving that day, and evidence that there was beer in the Defendant’s vehicle at the time of the accident. The Defendant contended that the BAC evidence was inadmissible absent proof of intoxication. . . .

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Defendants Recover E-Discovery Costs And How They Did It.

04 Wednesday Mar 2015

Posted by Celia C. Elwell, RP in Discovery, Document Review, E-Discovery, Legal Writing, Motions, Requests for Production

≈ Comments Off on Defendants Recover E-Discovery Costs And How They Did It.

Tags

Discovery Costs, E-Discovery, ESI, K&L Gates

Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates

http://tinyurl.com/pdqnz3a

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .

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What A Judge Needs To Give You What You Want.

27 Friday Feb 2015

Posted by Celia C. Elwell, RP in Brief Writing, Judges, Legal Analysis, Legal Argument, Legal Writing, Motions, Plain Language, Readability, Statement of Facts, Summary of the Argument

≈ Comments Off on What A Judge Needs To Give You What You Want.

Tags

Legal Writing, Oklahoma Bar Journal, Retired Judge Wayne Alley

Effective Legal Writing: One Judge’s Perspective, by Retired Judge Wayne Alley, originally published in the Oklahoma Bar Journal, Feb. 14, 2015– Vol. 86, No. 5.

http://www.okbar.org/members/BarJournal/archive2015/FebArchive15/OBJ8605Alley.aspx

This is one of the best articles I have read on how to write to win your case. Judge Alley tells you exactly what a judge wants to read in your brief. So put yourself in the judge’s shoes, and imagine that you’re reading yet another brief at the end of a long day at the end of an extremely long week.

Here you will find what a judge needs to give you what you want. -CCE

What does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or her cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfortable. To this end, consider the following suggestions.

Tell the judge why. Except for uncontested applications, such as for extensions of time, both sides typically submit persuasive statutes, cases and secondary authorities in support of their respective positions. Not many positions are “slam dunks.” The judge needs to be educated not merely that the respective authorities are out there, but why one set of authorities leads to a better result than the other. The judge shouldn’t have to figure it out for him or herself. . . .

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8th Circuit Motions of Limine and Offers of Proof.

07 Saturday Jun 2014

Posted by Celia C. Elwell, RP in 8th Circuit Court of Appeals, Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103

≈ Comments Off on 8th Circuit Motions of Limine and Offers of Proof.

Tags

Eighth Circuit, Evidence, EvidenceProf Blog, Federal Rules of Evidence, Legal Writing, Motion in Limine, Offer of Proof, Rule 103

Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pk2vzlt

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative. . . .

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How To Remove “The Fluff” In Legal Writing.

25 Sunday May 2014

Posted by Celia C. Elwell, RP in Bad Legal Writing, Brief Writing, Legal Analysis, Legal Argument, Legal Writing, Legalese, Motions

≈ Comments Off on How To Remove “The Fluff” In Legal Writing.

Tags

Brief Writing, Judge Lynn N. Hughes, Legal Writing, Legalese, Michigan Bar Journal, Plain Language

A Standard Motion Revised, by Judge Lynn N. Hughes, Plain Language, Michigan Bar Journal (May 2014)

http://www.michbar.org/journal/pdf/pdf4article2367.pdf

Judge Hughes eliminates unnecessary words, what he calls “the fluff.” In a simple, direct example, Judge Hughes clearly marks which words are meaningless, useless fillers.

You see this language used every day by lawyers and legal professionals. It is common as dirt. Some writers insist that archaic legalese is “required,” although there is no court rule, case law, or statute to support that opinion. It is not a “legal term of art.”

The point of legal writing is to persuade the reader – the court. Why do we add “the fluff”? Beats me. -CCE

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New Theory of Hearsay, Take 3!

22 Saturday Mar 2014

Posted by Celia C. Elwell, RP in 11th Circuit Court of Appeals, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Legal Writing, Motion to Suppress, Motions, Rule 602, Rule 803 Exception

≈ Comments Off on New Theory of Hearsay, Take 3!

Tags

Anonymous Hearsay Declarant, Colin Miller, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Motion to Suppress, Rule 602, Rule 803, United States v. Daniels

A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/ka5aw6p

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

As a Rule 803 exception, this present sense impression exception applies “regardless of whether the declarant is available as a witness….” Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness’s testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?

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Increase Credibility With The Court By Writing Accurate Facts And Law.

18 Wednesday Dec 2013

Posted by Celia C. Elwell, RP in Brief Writing, Citations, Discovery, Evidence, Legal Writing, Motions

≈ Comments Off on Increase Credibility With The Court By Writing Accurate Facts And Law.

Tags

(Lady) Legal Writer, Brief Writing, Evidence, Legal Writing, Megan E. Boyd

Commandment #7–Don’t “Fudge” the Facts or the Law, by Megan E. Boyd, (Lady) Legal Writer

http://tinyurl.com/n6qmvqe

Ms. Boyd excels at explaining how to present facts and applicable law to your client’s best advantage. She reminds us to use citations to depositions, discovery responses, and other resources to emphasize credibility, a detail sometimes overlooked. Definitely worth a read. – CCE

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Where Bad Motions Go to Die . . . .

15 Friday Nov 2013

Posted by Celia C. Elwell, RP in Bad Legal Writing, Legal Writing, Motions

≈ Comments Off on Where Bad Motions Go to Die . . . .

Tags

Legal Writing, My Case Blog, Nicole Black

That is incomprehensible! Denied. by Nicole Black, My Case Blog (with hat tip to William Statsky!)

http://perma.cc/0JW8RgZ5LeH

I was going to say something about good motion writing practices, but I can think of nothing more appropriate than the Court’s own words. CCE 

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A Rose by Any Other Name . . . .

09 Saturday Nov 2013

Posted by Celia C. Elwell, RP in First Amendment, Legal Writing, Motions in Limine, Trial Tips and Techniques

≈ Comments Off on A Rose by Any Other Name . . . .

Tags

Hercurles and the Umpire, Hon. George Richard Kopf, Motion in Limine, Name Designations, Tennessee Supreme Court

Counsel on both sides petition the Court to be called “specific” names. The jury, as juries sometimes do, may be able to think of some on its own. CCE

A response to a motion in limine that I wish I had received, by Hon. George Richard Kofp, Hercules and the umpire Blog

http://bit.ly/19NNlFV

 

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Avoid Common Mistakes in Okahoma Civil Appeals

22 Tuesday Oct 2013

Posted by Celia C. Elwell, RP in Brief Writing, Court Rules, Legal Writing, Motions

≈ Comments Off on Avoid Common Mistakes in Okahoma Civil Appeals

Tags

Appeals, Appellate Law, Certiorari, Court Rules, Designation of Record, Legal Writing, Motions, U.S. Courts of Appeals

Pitfalls in Civil Appellate Practice, by Michael Richie and Barbara Swimley, Oklahoma Bar Journal
http://bit.ly/1h6tq80

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