“Tips for Superior Court Motion Practice”
A possibly helpful list, from California Court of Appeal Justice John Shepard Wiley Jr., who served many years on the L.A. Superior Court, and who before that was my colleague at UCLA School of Law. Keep in mind that some of these have to do with the practices of the L.A. Superior Court (our local trial court), but most apply more broadly.
- Learn what you can about your judge. Judges are people, with worldviews and pet peeves and all the rest. Consider tailoring your presentation to your audience. But do not pander. (“I understand the Court has a collie. I have two!”) When in doubt, err on the side of formality and convention.
- Straight away, summarize what action you want the court to take. The introduction next should present the heart of your argument. This is the most important part of your brief. Keep editing until it is fine and concise. Your conclusion should briefly reiterate the result you urge.
- Lead with your best and most important argument. In the opposition and the reply, however, track the moving paper’s organization, so readers easily can follow the debate.
- Focus on legal authority. In state court, stick to published state cases on issues of state law. If a statute is decisive, anchor your argument in the statutory words. Put “policy arguments” last, or skip them. Trial judges often regard them as arguments of last resort: signs you have no favorable statutes or case law. But when distinguishing unfavorable precedents, show why it would be inadvisable to extend inapt precedent to this different situation.
- If there is an important and troublesome case, identify it and distinguish it as best you can. Ignoring a case is unwise: they will notice. Never try to trick opposing counsel or the court. That is poison.
- Never fudge a holding. The other side will catch you and make you pay. Don’t give them this opportunity to damage your credibility. Be candid when a case is merely analogous rather than directly on point. Explain the differences and why the authority still applies.
- In opposition, respond to every argument and case in the opposing brief. In reply, do the same. Ducking a point makes readers conclude you have no good response and should lose. If a point is insubstantial, dispatch it swiftly but do not ignore it. Don’t add new evidence or a request for judicial notice in the reply, where the other side has no opportunity
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