Conducting Effective Motions Practice The Basics: CLEAR STATEMENT - PDF document

1/16/2017 Conducting Effective Motions Practice The Basics: • CLEAR STATEMENT OF THE “SITUATION” • CLEAR STATEMENT OF THE LAW • CLEAR EXPLANATION WHY RELIEF SOUGHT IS JUST • FACTUAL SUPPORT IF CONTESTED. E.G. AFFIDAVIT 1/16/2017 2 1

1/16/2017 Motions to Compel and for Protective Order • Rule 26 and Rule 37 • Meet and Confer Obligation • Conferred in good faith to resolve the dispute • Support for motion – The Airing of Grievances. 1/16/2017 3 SUMMARY JUDGMENT FED AND STATE • Rule 56:  “no genuine dispute as to any material fact”  Support for facts asserted to be in dispute or not: “materials in the record including…  Statement of Undisputed Facts 1/16/2017 4 2

1/16/2017 Summary Judgment (cont.) • Statement of Disputed Facts • Lesser pleading standard in Vermont • Very developed federal case law on what constitutes a “genuine issue of material fact.” • Vermont adopts some but not all. 1/16/2017 5 Summary Judgment (cont.) • Non-moving party is entitled to have all inferences drawn in its favor • Must present admissible evidence showing there is a genuine fact dispute 1/16/2017 6 3

1/16/2017 Trial Preparation Issues: Organizing and Presenting Your Story Presenting Your Story • What’s in the case? Motions in Limine • Developing a Trial Theme • Some notes on organizing for Trial • What matters in an opening? 1/16/2017 8 4

1/16/2017 Motions in Limine • What evidence will come in will define your story • Avoid surprises: better to know your story than have it told to you at trial! • The more important and complex the issue, the earlier you should present it to the trial judge • Judge’s comfort level and preferences vary • Know your Judge’s preferences 1/16/2017 9 Developing a Trial Theme • Jurors think like people, lawyers don’t always! • So, how do people think? 1/16/2017 10 5

1/16/2017 Carl Jung • Archetypes – universal, archaic patterns, images and symbols • Innate and developed through culture • Embodied in the collective unconsciousness 1/16/2017 11 The Hero Quest Pattern • Joseph Campbell, The Power of Myth • Common themes in western stories:  Ordinary world  Call to Adventure  Refusal of the Call  Meeting with the Mentor  The Ordeal  The Reward  The Road Back 1/16/2017 12 6

1/16/2017 The Hero Quest Story (cont.) Examples: -- Moby Dick -- The Ring Trilogy -- Star Wars -- Northern Exposure -- Harry Potter Common themes – common interpretation, common understanding? 1/16/2017 13 The Seven Themes of Advertising • Overcoming the monster • Rebirth/Comeback story/Redemption • Quest • Journey and Return • Rags to Riches • Tragedy • Comedy 1/16/2017 14 7

1/16/2017 Everything Important I Learned in Kindergarten… • It’s mine • He’s not sharing • She started it • He didn’t clean up his mess • Say you are sorry • Don’t hit people 1/16/2017 15 Lawyers’ adoption of these themes… • There is power in the one-line case summary – like the one-line movie theme:  “In space, no one can hear you scream.” Aliens  “We are not alone.” Close Encounters  “Long ago, in a Galaxy Far, Far away”  “His whole life was a million-to-one shot”, Rocky  “Make America Great Again” Can you make a tag-line that works for your case? 1/16/2017 16 8

1/16/2017 One word themes to help focus your case: What is my best story? • Responsibility • Truth • Civility • Justice • Greed • Defendant was running late • Good versus evil • Weak versus powerful; David v. Goliath • Stuff happens • Perseverance 1/16/2017 17 One word themes (cont.) • Sacrifice • Obedience • Order • Plaintiff will never be normal again • Loyalty • Expectation • No objective evidence • It was just an accident • Integrity • Credibility 1/16/2017 18 9

1/16/2017 Sum up of Trial Themes: • Find one that speaks like a person • Keep it simple, make sure you can stick to it big picture • Develop in discovery • Use from the first instance with the jury: voir dire, opening. • Repeat the theme – KEEP IT SIMPLE 1/16/2017 19 Opening Issues: • Surveys repeatedly show jurors make up their minds within minutes of hearing from lawyers • First impression is key. 1/16/2017 20 10

1/16/2017 Opening Issues (cont.) • Must CONNECT! • Honesty! You honestly believe your cause • Passion! • Keep it Simple! 1/16/2017 21 References and Acknowledgements • Wikipedia, Carl Jung • www.thewritersjourney.com, The Hero Quest • Adweek, Tim Nudd, “7 Basic types of Stories: Which one is Your Brand Selling?,” October 3, 2012 • All I Really Need to Know I Learned in Kindergarten, Robert Fulgham, Ivy Books Publishing, 1989 • “Million Dollar Jury Trial Case Themes You Can Steal,” Elliott Wilcox, www.trialtheater.com • “Ideas for Case Themes,” from Trial Preparation Tools, Beth D. Osowski, www.jamespublishing.com 1/16/2017 22 11

1/13/2017 Discovery Strategy and Tactics 1 “In general, the purpose of discovery is to make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” Stella v. Spaulding, 2013 VT 8, ¶ 14, 193 Vt. 226, 67 A.3d 247 (quotation omitted) 2 1

1/13/2017 Careening through the neighborhood with reckless abandon, none of them suspected that Tuffy was still tied up. 3 In every case a litigator should identify overall goals for the case and goals for discovery and should then formulate the most appropriate strategy to achieve those goals. The next step is to implement the best tactics tactics to carry out the strat strategy gy 4 2

1/13/2017 St Strat rategy gy: A plan of action to achieve a major aim or overall goal Plaintiff and defendant should both have overall case strategies May be the same, similar, or vastly different 5 Your approach to discovery should be consistent with your overall case strategy. 6 3

1/13/2017 Ta Tactics: Art or skill of employing available means to accomplish an end Each case involves numerous tactical decisions throughout the life of the case The tactical decisions related to discovery should be case-specific and carefully considered 7 How and when to use discovery should be informed by thoughtful case strategy and implemented with sound tactics 8 4

1/13/2017 A civil plaintif plaintiff has a big advantage: knowing a case is coming For the most part, a def defendant ndant cannot use discovery tools until the suit has been filed For plaintif plaintiff, filing a lawsuit as quickly as possible may be giving away an advantage. 9 A civil plaintif plaintiff has a big advantage: knowing a case is coming For the most part, a def defendant ndant cannot use discovery tools until the suit has been filed Case strategy should start with: when when to file le the the suit uit where t e to file t e the suit what what claims claims to bring bring 10 5

1/13/2017 What are the disco What are the discover ery y tools? ools? 1. Depositions Depositions, either by written or oral examination 2. Int Interr rrogat ogatories ories 3. Requests ests for or pr production/permission oduction/permission to ent enter 11 What are the disco What are the discover ery y tools? ools? 4. Requests ests for or ph physical ysical or or mental mental examination amination 5. Requests ests to admit it 6. Subpoenas Subpoenas and nd subpoena subpoena duces duces tecum ecum 7. Summar Summary judgment judgment mo motions tions (?) 12 6

1/13/2017 The fundamental questions to ask yourself about discovery are: • What is it that I need to know? • How do I best go about getting it and getting it in the form that I want it? 13 Conducting discover Conducting disco ery in y in an any y form rm Weigh what you hope to learn against what you might lose by conducting discovery. There are two main purposes to discovery: Learn missing information • Pin down the opponent to a version or • history of events for potential future impeachment 14 7

1/13/2017 Conducting disco Conducting discover ery in y in an any y form rm How critical is the information you are missing? • How imperative is the need to pin down the • opponent on certain points? 15 Conducting disco Conducting discover ery in y in an any y form rm • Are there other sources to obtain the information or other ways in which the opponent is already pinned down? How likely is it that your discovery will help you • prepare your opponent or alert them to issues they might overlook? 16 8

1/13/2017 Conducting disco Conducting discover ery in y in an any y form rm How studied an answer are you willing to accept? • The more time a party has to prepare an answer, the more studied the answer will be. For example, an answer to an interrogatory is less spontaneous than an answer to a question in a deposition. 17 Conducting disco Conducting discover ery in y in an any y form rm Rule of thumb: interrogatory or written question • depositions are questions asked and answered by lawyers. They have their place, but they should only be used when a spontaneous answer is not important. 18 9