Every complaint has the same basic framework. The idea is to tell the court, and your adversary, why you are seeking judicial intervention. You have to explain what happened, what you want, and why you think you deserve it. Thus, every complaint should do at least five things: (1) give a quick overview of the case; (2) identify the parties; (3) state sufficient facts to show that the plaintiff is entitled to relief; (4) explain the legal basis for the relief sought; and (5) explain what relief you are seeking. In addition, sometimes you are required to include in the complaint statements explaining that you are in the right court and you have jumped through all the required hoops prior to filing a lawsuit.
<< Format and Procedure || "Pleadings" Table of Contents || The Introductory Paragraphs >>
Showing posts with label Civil Practice. Show all posts
Showing posts with label Civil Practice. Show all posts
Friday, November 26, 2010
How to File a Lawsuit: Pleadings
Although it is often considered merely administrative, drafting a pleading can be an art. In law school, I spent a while working part-time for a small firm that did mostly personal injury work. While I was there, they took on a complicated severence dispute. The plaintiff was an international finance executive who had gone blind from diabetes. He was pursuaded to resign with a reduced severance package based on the promise that he would also be receiving long term disability benefits. Then, his benefits were denied. Because employee benefits were involved, we had to sue in Federal Court under ERISA.
The complaint I drafted was very unlike the firm's usual fodder. I learned the area of law, read everything I could on drafting a pleading, and modeled it on samples from similar cases. The attorney assigned, however, didn't like it. She cut it down, took out the headings, and turned it into a list of vague, non-specific, allegations similar to the complaints filed for the firm's day-to-day car accident cases. After the now-gutted complaint was filed, the judge required it to be re-drafted, saying it was "not a model of clarity." The criticism stung, but I took some satisfaction in knowing that my original work had been right, or at least more in the right direction.
The complaint I drafted was very unlike the firm's usual fodder. I learned the area of law, read everything I could on drafting a pleading, and modeled it on samples from similar cases. The attorney assigned, however, didn't like it. She cut it down, took out the headings, and turned it into a list of vague, non-specific, allegations similar to the complaints filed for the firm's day-to-day car accident cases. After the now-gutted complaint was filed, the judge required it to be re-drafted, saying it was "not a model of clarity." The criticism stung, but I took some satisfaction in knowing that my original work had been right, or at least more in the right direction.
The point of the story is that "a model of clarity" is a good standard for any written work, and a pleading is no different.
TABLE OF CONTENTS
* Types of Pleadings
* Format and Procedure
* Drafting The Complaint
- Intro Paragraphs
- Jurisdictional Statement
- Parties Section
- Facts Common to All Causes of Action
- Conditions Precedent
- Causes of Action
- Demand for Relief
Filing A Lawsuit: Types of Pleadings
Pleadings are the first papers in a litigation, where the parties lay out their respective positions. The most basic pleadings are the complaint and answer. In the complaint, the plaintiff explains why they are invoking the court's jurisdiction and what their claims are. In the Answer, the defendant either admits or denies the plaintiff's allegations, asserts its affirmative defenses, and may also assert counterclaims against the plaintiff, cross-claim against a co-defendant, or third-party claims bringing in a new party.
A complaint initiates what's called a "plenary action," meaning that it's a broad-scope litigation following all applicable procedural formalities. The defendant can either move to dismiss or answer.
In New York State practice, there is a second round of pleadings called a Bill of Particulars, where the parties ask for more detail concerning the allegations of the complaint or affirmative defenses. Although bills of particulars are echanged (and at times supplemented or amended) during the discovery process, they are pleadings, not a discovery device, and so are really only meant to clarify the claims and issues.
Once an answer is received, there's discovery: first the exchange of documents and things, then depositons. In New York State practice, Once discover is completed, there's motion practice to determine what, if any, issues can be decided as a matter of law. Then, there's pre-trial proceedings; then a trial.
Other types of proceedings have their own pleadings. One example is a special proceeding, which is a summary proceeding wherein a hearing date is scheduled immediately. Landlord-tenant disputes, Article 78 proceedings,, and foreclosures are typical examples of special proceedings. The initiating pleading in a special proceeding is usually called a "petition" and the equivalent of an answer is usually called a "response and objections at law."
"Pleadings" Table of Contents || Format and Procedure >>
A complaint initiates what's called a "plenary action," meaning that it's a broad-scope litigation following all applicable procedural formalities. The defendant can either move to dismiss or answer.
In New York State practice, there is a second round of pleadings called a Bill of Particulars, where the parties ask for more detail concerning the allegations of the complaint or affirmative defenses. Although bills of particulars are echanged (and at times supplemented or amended) during the discovery process, they are pleadings, not a discovery device, and so are really only meant to clarify the claims and issues.
Once an answer is received, there's discovery: first the exchange of documents and things, then depositons. In New York State practice, Once discover is completed, there's motion practice to determine what, if any, issues can be decided as a matter of law. Then, there's pre-trial proceedings; then a trial.
Other types of proceedings have their own pleadings. One example is a special proceeding, which is a summary proceeding wherein a hearing date is scheduled immediately. Landlord-tenant disputes, Article 78 proceedings,, and foreclosures are typical examples of special proceedings. The initiating pleading in a special proceeding is usually called a "petition" and the equivalent of an answer is usually called a "response and objections at law."
"Pleadings" Table of Contents || Format and Procedure >>
Filing A Civil Complaint: Format and Procedure
A complaint is the standard pleading for a civil action. A complaint is a "short plain statement" showing why the plaintiff is entitled to relief. Plain, of course, does not necessarily mean boring, vague, or bland. The minimum requirements are not a goal. It just means not to include irrelevant garbage, character attacks, or emotive argument
Individual courts have different formatting requirements, so it is important when practicing in an unfamiliar court to review the local rules.
The summons serves as a cover page for the complaint, telling the defendants how long they have to Answer and notifying them of the risk of default. You can find a form summons relatively easily online.
The complaint should be in at least 12 point font, on regular letter-sized paper.
Unless the local rules require the law firm's name and address on the very top of the page (some do), the complaint starts with a caption, which lists the court and the parties. All of the parties must be listed. Next to the caption, the document is titled ("complaint" or "verified complaint"), and identifies the index or docket number.
Every paragraph, other than the opening paragraph, "wherefore" clause, and headings, is numbered.
The opening pragraph, as in many legal documents, identifies the speaker or speakers in all caps, and ends with a colon. "PLAINTIFF, through his attorneys, LAW FIRM, as and for a verified complaint, alleges as follows:" then the headings and numbered paragraphs begin.
The first paragraphs should be intro paragraphs, explaining what the case is about. Some courts will then require a jurisdictional statement, explaining why that particular court is a proper forum for the dispute. Then there is a section identifying the parties; then the facts common to all causes of action; then the causes of action; then the demand for relief.
A complaint is verified (some jurisdictions call it certified) if it is sworn to as true by one of the plaintiffs. If a complaint is verified, it can serve as an affidavit of merit. An attorney can make the verification if the plaintiff is not within the same county, but an attorney's verification has no probative value.
<< Types of Pleadings || "Pleadings" Table of Contents || Drafting the Complaint >>
Individual courts have different formatting requirements, so it is important when practicing in an unfamiliar court to review the local rules.
The summons serves as a cover page for the complaint, telling the defendants how long they have to Answer and notifying them of the risk of default. You can find a form summons relatively easily online.
The complaint should be in at least 12 point font, on regular letter-sized paper.
Unless the local rules require the law firm's name and address on the very top of the page (some do), the complaint starts with a caption, which lists the court and the parties. All of the parties must be listed. Next to the caption, the document is titled ("complaint" or "verified complaint"), and identifies the index or docket number.
Every paragraph, other than the opening paragraph, "wherefore" clause, and headings, is numbered.
The opening pragraph, as in many legal documents, identifies the speaker or speakers in all caps, and ends with a colon. "PLAINTIFF, through his attorneys, LAW FIRM, as and for a verified complaint, alleges as follows:" then the headings and numbered paragraphs begin.
The first paragraphs should be intro paragraphs, explaining what the case is about. Some courts will then require a jurisdictional statement, explaining why that particular court is a proper forum for the dispute. Then there is a section identifying the parties; then the facts common to all causes of action; then the causes of action; then the demand for relief.
A complaint is verified (some jurisdictions call it certified) if it is sworn to as true by one of the plaintiffs. If a complaint is verified, it can serve as an affidavit of merit. An attorney can make the verification if the plaintiff is not within the same county, but an attorney's verification has no probative value.
<< Types of Pleadings || "Pleadings" Table of Contents || Drafting the Complaint >>
Drafting a Complaint: The Intro Paragraph
I generally put a preliminary statement in the first few paragraphs of every complaint. This preliminary statement is not long, but contains a few short, punchy, sound-bites. That way, when anyone looks at it, they can tell in a few seconds what the case is about.
The Preliminary Statement is a brief overview. Paint with broad strokes, and don't try to cram in every fact. The thing to be careful with, however, is not limiting yourself. Be sure to phrase things broadly and qualify facts with words such as "among other things," "including," "such as," or "for example."
A few of my cases have made national news. Without giving any comment, the reporters had a great quote right from the first page of the complaint. This can be extremely helpful in high-publicity cases, since as a general rule attorneys should keep their media comments to a minimum. Having done some freelance reporting and media relations work, I can tell you that reporters - like any other professional writers - appreciate a well-turned phrase. Sadly, that can be a rarity among practicing attorneys.
More important than providing information for reporters, you want to give the court and the other side a clear sense of what the case is about.
The complaint is the first basis the defendant, their attorney, or their insurer has for assessing the value of the case. Similarly, the first thing that happens in any trial is that the judge is given copies of the "marked" pleadings, which is a copy of the complaint and answer with notes in the margin as to whether each defendants admits or denies the individual allegations.
A great complaint gives a good first impression; a poor complaint gives a bad first impression. It is the first salvo in a litigation, and should suggest the quality and competance that can be expected from the plaintiff.
<< Drafting the Complaint || "Pleadings" Table of Contents || Parties >>
The Preliminary Statement is a brief overview. Paint with broad strokes, and don't try to cram in every fact. The thing to be careful with, however, is not limiting yourself. Be sure to phrase things broadly and qualify facts with words such as "among other things," "including," "such as," or "for example."
A few of my cases have made national news. Without giving any comment, the reporters had a great quote right from the first page of the complaint. This can be extremely helpful in high-publicity cases, since as a general rule attorneys should keep their media comments to a minimum. Having done some freelance reporting and media relations work, I can tell you that reporters - like any other professional writers - appreciate a well-turned phrase. Sadly, that can be a rarity among practicing attorneys.
More important than providing information for reporters, you want to give the court and the other side a clear sense of what the case is about.
The complaint is the first basis the defendant, their attorney, or their insurer has for assessing the value of the case. Similarly, the first thing that happens in any trial is that the judge is given copies of the "marked" pleadings, which is a copy of the complaint and answer with notes in the margin as to whether each defendants admits or denies the individual allegations.
A great complaint gives a good first impression; a poor complaint gives a bad first impression. It is the first salvo in a litigation, and should suggest the quality and competance that can be expected from the plaintiff.
<< Drafting the Complaint || "Pleadings" Table of Contents || Parties >>
Drafting a Complaint: The Jurisdictional Statement
Many courts require a jurisdictional statement. Always check the local rules. If something is required, put it in.
In New York State practice, a jurisdictional statement is not required, but it is customary when seeking money damages in the state Supreme Court to put a statement in the Demand for Relief that the anticipated damages exceed the jurisdiction of the lower courts. The New York State Supreme Court is a court of general jurisdiction: you can file any case, about anything (unless it is exclusively Federal), for any monetary amount. When dealing with smaller amounts, however, there are lower courts where, as a matter of administrative convenience, such cases should be filed. Cases below $25,000 belong in the County Courts ("Civil Court" in New York City); below $15,000 belongs in the District Courts; and below $3,000 should go to a small claims court. If you file in the Supreme Court, and the Judges feel the case should go somewhere else, they will send it to a lower court under C.P.L.R. 325(d).
The Federal Courts are where Jurisdictional Statements are typically required. For a Federal Court to have power to hear a case, it must be either a Federal Question (i.e. arising under either a Federal Statute, the U.S. Constitution, Maritime law, or a Treaty), or be between citizens of different states and involve more than $75,000 in dispute. See 28 U.S.C. § 1331 and 1332.
Drafting A Pleading: Identifying The Parties
In the "Parties" section of the complaint, you should identify each party's legal name, any known aliases, and their residences (just the county, not the actual address). For a New York corporation, you can check their official name and address in the Department of State's online database. Many other states have similar databases.
This section has several practical implications. First, in New York, venue (i.e. what courthouse you go to) is usually based upon the residence of either of the parties. If the venue is inconvenient for the defendant, the court may consider a transfer or dismissal based on "forum non-conveniens." Thus, if the defendant has a connection to the venue, this is an appropriate section to include allegations such as that the defendant "resides in," "maintains its principal office in," or "regularly conducts business in" a particular county.
Second, if your case is a business dispute, the type of business entity makes a difference. There are different rules governing the procedures for internal disputes between owners, and the owners' individual liability to third parties, depending on what type of business entity is involved (i.e., corporations, partnerships, limited liability companies, professional corporations, etc.).
Third, sometimes a party can be misnamed or listed as John/Jane Doe. Misnaming sometimes happens, for example, when dealing with corporate subsidiaries. There are also a variery of situations where a John Doe defendant is appropriate, although in my experience the designation is over used.
If there's enough information in the complaint describing the proper defendant, even if there was a mistake in the name, it can make a correction go more smoothly. If the defendant had notice that it was the entity that should have been named, a later correction may "relate back" to the original pleading date, thereby avoiding statute of limitation problems.
<< Jurisdictional Statement || "Pleadings" Table of Contents || Facts Common to All Causes of Action >>
This section has several practical implications. First, in New York, venue (i.e. what courthouse you go to) is usually based upon the residence of either of the parties. If the venue is inconvenient for the defendant, the court may consider a transfer or dismissal based on "forum non-conveniens." Thus, if the defendant has a connection to the venue, this is an appropriate section to include allegations such as that the defendant "resides in," "maintains its principal office in," or "regularly conducts business in" a particular county.
Second, if your case is a business dispute, the type of business entity makes a difference. There are different rules governing the procedures for internal disputes between owners, and the owners' individual liability to third parties, depending on what type of business entity is involved (i.e., corporations, partnerships, limited liability companies, professional corporations, etc.).
Third, sometimes a party can be misnamed or listed as John/Jane Doe. Misnaming sometimes happens, for example, when dealing with corporate subsidiaries. There are also a variery of situations where a John Doe defendant is appropriate, although in my experience the designation is over used.
If there's enough information in the complaint describing the proper defendant, even if there was a mistake in the name, it can make a correction go more smoothly. If the defendant had notice that it was the entity that should have been named, a later correction may "relate back" to the original pleading date, thereby avoiding statute of limitation problems.
<< Jurisdictional Statement || "Pleadings" Table of Contents || Facts Common to All Causes of Action >>
Drafting A Pleading: Facts Common To All Causes of Action
Generally, the facts in a complaint should be very simple assertions, with each individual factual statement contained in its own paragraph. One fact per paragraph. The reason for this is that the answering party only has so many options. They can: admit; deny; deny knowledge or information sufficient to form a belief; or refer a question of law to the court.
The simpler your factual statements are, the harder they are to deny. In making your statements simple, avoid adjectives and compound sentences, which only give the responding party more things to disagree with. Using the disjunctive "or," such as "agent or employee," makes statements broader and more likely to be admitted. Similarly, any uncertaintly about a date should be qualified with "in or around" the Month, or "on or about" the date.
Of course, clarity comes first. One fact per paragraph is not always a hard-and-fast rule. It is not improper to have narrative paragraphs that tell the underlying story. Such paragraphs can be helpful in explaining what actually happened. When you write a paragraph like that, however, it can easily be denied. Thus, you should also put in seperate one-fact paragraphs stating hard simple facts that, taken together, lead to the inferences found in the more complex statements.
Overall, the facts contained in the facts section are supposed to be things that demonstrate entitlement to the relief being requested. Before deciding what facts to include, or how to phrase them, you need to understand the law that governs the claims you are making.
<< Parties || "Pleadings" Table of Contents || Conditions Precedent >>
The simpler your factual statements are, the harder they are to deny. In making your statements simple, avoid adjectives and compound sentences, which only give the responding party more things to disagree with. Using the disjunctive "or," such as "agent or employee," makes statements broader and more likely to be admitted. Similarly, any uncertaintly about a date should be qualified with "in or around" the Month, or "on or about" the date.
Of course, clarity comes first. One fact per paragraph is not always a hard-and-fast rule. It is not improper to have narrative paragraphs that tell the underlying story. Such paragraphs can be helpful in explaining what actually happened. When you write a paragraph like that, however, it can easily be denied. Thus, you should also put in seperate one-fact paragraphs stating hard simple facts that, taken together, lead to the inferences found in the more complex statements.
Overall, the facts contained in the facts section are supposed to be things that demonstrate entitlement to the relief being requested. Before deciding what facts to include, or how to phrase them, you need to understand the law that governs the claims you are making.
<< Parties || "Pleadings" Table of Contents || Conditions Precedent >>
Drafting A Pleading: Conditions Precedent
In some cases, there are conditions precedent to starting a lawsuit. Where applicable, the fact that you have completed these hurtles should get their own section within the complaint. Some examples of conditions precedent include demand upon the board of directors in a shareholders derivative action, filing a notice of claim in an action against a municipality, and filing an EEOC or NYS Division of Human Rights complaint in an employment discrimination or harrassment suit. These requirements can be imposed by statute, or by contract, and will require a party exhaust their administrative remedies (i.e., complete an internal grievance or appeal procedure) prior to filing suit. This requirement is fairly common in employment disputes, insurance disputes, and when dealing with government agencies.
<< Facts Common to All Causes of Action || "Pleadings" Table of Contents || Causes of Action >>
<< Facts Common to All Causes of Action || "Pleadings" Table of Contents || Causes of Action >>
Drafting A Complaint: Causes of Action
A legal basis for relief is called a cause of action. Sloppy complaints will list facts in this section, not properly label each cause of action, or not include the actual elements of each cause of action.
If you are suing someone, you need a basis. Did they breach a contract, commit a tort, violate a statute? In the facts section, you described what happened, in the causes of action, you explain - in terms of the Law - why you are entitled to relief.
Each cause of action should be labeled. By labeled, I don't mean just "first," "second," "third." Claims always arise under either a statute or an area of common law to which the Courts have assigned a name.
If you think you are pleading a novel heretofore unrecognized cause of action, you are probably wrong. In the event you are correct, and you've come up with a never before seen legal theory, the Court will probably dismiss your case and explain that you haven't pleaded a legally recognized cause of action. Even in the extremely rare situation where you are actually dealing with uncharted legal waters, the courts will still operate within certain legal frameworks based on precedent. Where changes in society bring about new types of relationships, the conduct between those parties is still governed by either the common law of torts, a statute, a contract, equity, or some similar claim.
Most claims have "elements," meaning the items all of which must be proven to establish a claim. In a Negligence action, for example, the elements are: duty, breach, causation, and damages. Other claims, especially equitable claims, rest on concepts like "fairness," where the court will weigh various factors, not all of which are required. Asserting a cause of action, provided the facts are there to support it, is as simple as identifying each of these elements and linking them to the particular case. When asserting a statutory cause of action, parrot the language of the statute.
Asserting causes of action also becomes more complicated when you are dealing with multiple plaintiffs or multiple defendants. Each cause of action should designate which plaintiffs assert what that claim against which defendants. In a shareholder's derivative case, for example, the business owner may assert claims both individually and on behalf of the company, but the court won't accept such a hybrid complaint unless the individual and derivative claims are clearly distinguished.
As a general rule, you want to be over inclusive with the causes of actions asserted. It is easier to drop a cause of action than it is to amend the complaint to add one.
<< Conditions Precedent || "Pleadings" Table of Contents || Demand For Relief >>
If you are suing someone, you need a basis. Did they breach a contract, commit a tort, violate a statute? In the facts section, you described what happened, in the causes of action, you explain - in terms of the Law - why you are entitled to relief.
Each cause of action should be labeled. By labeled, I don't mean just "first," "second," "third." Claims always arise under either a statute or an area of common law to which the Courts have assigned a name.
If you think you are pleading a novel heretofore unrecognized cause of action, you are probably wrong. In the event you are correct, and you've come up with a never before seen legal theory, the Court will probably dismiss your case and explain that you haven't pleaded a legally recognized cause of action. Even in the extremely rare situation where you are actually dealing with uncharted legal waters, the courts will still operate within certain legal frameworks based on precedent. Where changes in society bring about new types of relationships, the conduct between those parties is still governed by either the common law of torts, a statute, a contract, equity, or some similar claim.
Most claims have "elements," meaning the items all of which must be proven to establish a claim. In a Negligence action, for example, the elements are: duty, breach, causation, and damages. Other claims, especially equitable claims, rest on concepts like "fairness," where the court will weigh various factors, not all of which are required. Asserting a cause of action, provided the facts are there to support it, is as simple as identifying each of these elements and linking them to the particular case. When asserting a statutory cause of action, parrot the language of the statute.
Asserting causes of action also becomes more complicated when you are dealing with multiple plaintiffs or multiple defendants. Each cause of action should designate which plaintiffs assert what that claim against which defendants. In a shareholder's derivative case, for example, the business owner may assert claims both individually and on behalf of the company, but the court won't accept such a hybrid complaint unless the individual and derivative claims are clearly distinguished.
As a general rule, you want to be over inclusive with the causes of actions asserted. It is easier to drop a cause of action than it is to amend the complaint to add one.
<< Conditions Precedent || "Pleadings" Table of Contents || Demand For Relief >>
Drafting A Complaint: The Demand For Relief
WHEREFORE, this is where you tell the court what you are asking for. You are literally pleading for something. Some jurisdictions follow an old rule of practice where the demand for relief begins, after the word "wherefore" in all caps, "Plaintiff prays the Court enter Judgment against" the defendant. The more modern way to phrase it is "Plaintiff demands Judgment against" the defendant. However you phrase it, the point is the same. You need to specifically say what you want. Are you looking for compensatory damages, statutory damages, punitive damages, injunctive relief, a declaratory judgment, attorneys fees, costs, interest? If you don't put it in, you might not be able to claim it.
This section is organized in different ways for different cases. Like the opening paragraph, it is not numbered. Sometimes, a single unified paragraph will work for the whole complaint. Other times, each cause of action needs it's own damages paragraph, or there are seperate paragraphs for each defendent or each type of damages. Overall, the point is that you clearly state which plaintiffs are seeking what relief against which defendants.
When dealing with compensatory damages, the rule was formerly that you had to demand a specific dollar amount. A specific amount is no longer required, and the phrase ordinarily used is "in an amount that will fully and fairly compensate Plaintiffs for the damages they have suffered" or something similar. A specific dollar amount is still used in actions such as collection matters, or other actions where a set amount is readily capable of calculation. The advantage is that, in those cases, a default judgment can easily be entered for the amount demanded without the need for an inquest if the defendant doesn't answer.
Where damages are for pain and suffering, emotional distress, or other non-economic losses, however, you cannot avoid an inquest merely by putting a specific dollar amount. Some practitioners still put a dollar amount in these cases, mostly for shock value. By doing so, you are capping your damages, but the dollar amounts are usually so outrageosly high that it doesn't matter.
I am generally against putting a dollar amount where it is merely for shock value. Unsophisticated defendants may be surprised, and media outlets will almost always state the dollar amount if you put one in, but if the number is meaningless then it only serves as a distraction. At best, it is a meaningless number that draws attention to your case as something you deemed "serious" enough to put a large number on. More likely, however, the number sounds outrageous, you are playing a role in proliferating the inaccurate view of an out-of-control legal system, and you may have made an otherwise meritorious case sound frivolous.
<< Causes of Action || "Pleadings" Table of Contents" ||
This section is organized in different ways for different cases. Like the opening paragraph, it is not numbered. Sometimes, a single unified paragraph will work for the whole complaint. Other times, each cause of action needs it's own damages paragraph, or there are seperate paragraphs for each defendent or each type of damages. Overall, the point is that you clearly state which plaintiffs are seeking what relief against which defendants.
When dealing with compensatory damages, the rule was formerly that you had to demand a specific dollar amount. A specific amount is no longer required, and the phrase ordinarily used is "in an amount that will fully and fairly compensate Plaintiffs for the damages they have suffered" or something similar. A specific dollar amount is still used in actions such as collection matters, or other actions where a set amount is readily capable of calculation. The advantage is that, in those cases, a default judgment can easily be entered for the amount demanded without the need for an inquest if the defendant doesn't answer.
Where damages are for pain and suffering, emotional distress, or other non-economic losses, however, you cannot avoid an inquest merely by putting a specific dollar amount. Some practitioners still put a dollar amount in these cases, mostly for shock value. By doing so, you are capping your damages, but the dollar amounts are usually so outrageosly high that it doesn't matter.
I am generally against putting a dollar amount where it is merely for shock value. Unsophisticated defendants may be surprised, and media outlets will almost always state the dollar amount if you put one in, but if the number is meaningless then it only serves as a distraction. At best, it is a meaningless number that draws attention to your case as something you deemed "serious" enough to put a large number on. More likely, however, the number sounds outrageous, you are playing a role in proliferating the inaccurate view of an out-of-control legal system, and you may have made an otherwise meritorious case sound frivolous.
<< Causes of Action || "Pleadings" Table of Contents" ||
Saturday, January 23, 2010
How To Argue An Appeal
Below are ten tips for appellate argument. The tips are: keep it simple; don't make unnecessary concessions; respectfully disagree with a hostile judge; focus on the issues; don't be a jerk; engage the court; be organized; use verbal signposts; use case law intelligently; and, above-all, be sincere.
* Keep it simple.
To be persuasive, you also need to be concise and straight-forward. No-one will be receptive to your argument if it's too drawn out to follow. Overall, put your best points up front to make sure they get out.
Prior to actually arguing before the court, go over the arguments again and again so that you can squeeze your best points into as few words as possible. Trim your argument down to your best sound-bites, and the rest will flow naturally. A short focused argument is better than a long and rambling one, and the simplest argument is often the most compelling.
Also, you don't always have to repeat everything in the briefs. Don't concede anything about your weak arguments, and be prepared for everything, but there is nothing wrong with focusing on the strong issues (or the ones that you feel the court will deem most important). If you are going to concentrate on one or two things, tell the court. You can say something like: Unless the Court has questions about the other issues, I would like to focus on X and Y. This is particularly helpful if you are the respondent in a scattershot appeal.
Different courts have different policies regarding time limits, and you should plan accordingly. For example, in lower New York where I practice, we have the First and Second Departments of the Appellate Division. In the First Department, time limits are relatively strictly adhered to, with colored lights signifying that you are running out of time. In the Second Department, they are more prone to being flexible with time limits, but you need to get the hint when the judges are suggesting that you sit down. Whatever the court's rules, you have a finite amount of time and need to make the most of it.
* Don't make unnecessary concessions.
The judges will occasionally cross-examine litigators with yes or no questions, trying to get them to concede points. On a rare occasion, such a judge is trying to help you strengthen your argument, or is using you to mouth their own argument in your favor. More often, however, the judge is trying to make you see the weaknesses of your case, or to concede something that may be fatal to your argument. I try not to say never, but be extraordinarily careful about conceding any issue during your argument. If you are going to concede a point, that decision should be made at the briefing stage, or at least prior to argument, not in the middle of your presentation. Don't press weak points, but you don't need to roll over if you disagree.
On the other hand, former Judge Wesley of the Second Circuit has argued that lawyers are often too-wary of conceding a point, thereby losing credibility with the court, saying "I would think that you would immediately concede it, if you're convinced that the judge is right and then immediately distinguish it." (NYLJ).
Overall, whether to concede a point is a fact-sensitive issue, and should not be done lightly. If you don't agree with what the judge is saying, you should confidently say so. If you think the judge may have a point, the best approach is to treat the question as meaning: even if this were true, why should you still win?
* Respectfully disagree with a hostile judge.
Dealing with a judge who clearly opposes your case is possibly the most difficult part of arguing an appeal. Most often, unless there is also a judge who seems to be on your side and they decided to play good cop/bad cop, an overtly hostile judge may signal that at least that judge (if not the entire panel) will side against you. If no-one else on the panel is bolstering your argument, they didn't give your adversary a hard time, and one or two judges attack your arguments vehemently, the panel is probably going to side against you.
At that stage, when you see a loss looming, don't give up. Don't unnecessarily drag it out, but your client has a right to be heard. Not only is it possible that you are misreading the judges, but in an appeal your arguments have a broader implication than just the case before you. Even if the judges disagree, you need to make sure they understand and respect your reasoning and issue a decision that is not bad precedent. Possibly, if your arguments are strong enough, you'll get a dissent. There are judges -- albeit relatively rarely -- who are more timid and won't speak up against a colleague during oral argument. Moreover, although the merit of an appeal is usually decided based on the briefs, there is always a possibility that a strong argument will sway one or more judges.
"With all due respect," is a phrase that very strongly signals that you disagree with someone. It can be seen as a polite F-U. I recently used it where a judge kept cutting me off, and the judge quickly cut me off again and said "the respect is implied counsel." (He then compared me to Charlie Brown listening to his teacher - but that's neither here nor there). The phrase "with all due respect" generally does not help you persuade the judge you are speaking to, or any that agree with that judge. It is adversarial, and its only real purpose is to draw the attention of any other judges on the panel who may be leaning (or teetering) in your favor.
* Focus On The Issues
Generally, appeals involve questions of law, and the judges are already familiar with the record and the issues. Get to the point, and stick to the real issues. It is not a jury argument, and shouldn't be treated like one. Be concise and straight-forward.
As a general rule, do not overtly appeal to sympathy or other emotive factors, but this rule very flexible and depends on what issues you are dealing with. When the panel is reviewing a jury verdict, for example, your argument may sound similar to a dense, evidence-focused, closing statement.
I watched a rather entertaining argument a couple months ago where a local Brooklyn business purchased an investment property at a foreclosure sale. The property had been owned by a rich old woman, there had been some confusion with the water bill, and it eventually went up for a foreclosure sale without the woman realizing it. The business was obviously a good faith purchaser, and had no knowledge that the woman intended to pay the bill. The old woman, however, wanted the building back because it had sentimental value (she grew up in one of the apartments) and wanted it to be part of a bequest in her will towards a complex for a medical school.
The lower court put a hold on the sale until a hearing could be held as to whether the woman's default could be vacated, and the business appealed. An overly-cocky lawyer represented the business, and started with a story about how he went to his son's class for career day and explained what lawyers do. The story had some moral about telling the truth, and the argument was that the other lawyer was lying about having served papers. While the lawyer snarkily grinned with pride that the judges let him finish his story before lashing into him, I thought to myself: I hope this guy didn't sound as sleazy when he spoke to his son's class.
Starting off with a story, and accusing the other side of lying, really didn't seem to sit well with the court. In fact, may have made the panel more sympathetic to the other side. Since the issue was whether the lower court had the equitable discretion to set aside the foreclosure, focusing on the grey area of credibility rather than black-letter law may have been very poor move.
Not helping the Old Lady's side, of course, was that her lawyer was a hot mess. The two attorneys were like Felix and Oscar. The Old Lady's lawyer argued that he had personally filed and served documents (which neither the Court nor opposing counsel received - but he was apparently permitted to submit during argument below), but the clerk had lost them and opposing counsel was lying. He refused to accept even the possibility that he didn't send them, despite the fact that it probably would have been easily excusable. Adding to this, the business had appealed from a motion to renew/reargue, filing two seperate briefs rather than consolidating, and the old lady's attorney didn't respond to the second appeal because he had changed offices apparently forgot to forward his mail.
As entertaining as it was watching this train-wreck of an argument, neither side squarely addressed the main issue of whether the lower court had equitable power to halt a foreclosure sale after the auction was already complete.
* Don't be a jerk
As you may have gleened from the story above, courts don't like when one lawyer attacks another or makes anything unduly personal. If you think the other lawyer or the lower court deserves to be chastised, let the court do it sua sponte. There's an old saying: if the facts are in your favor, pound on the facts; if the law is in your favor, pound on the law; if all else fails, pound on the table. Those are your choices (the table being policy or sympathy) and attacking anyone personally is not one of them. It's unprofessional, discourteous, and generally a bad idea.
I had a client once -- a law school graduate who, until then, had appeared pro se -- who had been granted leave to move for reconsideration in the Appellate Division on a legal issue of national significance. I came in to handle the reconsideration motion, with an eye towards going to the Court of Appeals. Rather than focusing on substance, the client insisted on personally naming and attacking court personnel, whom he believed had made technical administrative errors. Eventually, we parted ways, he argued on his own and apparently didn't heed my advice. Despite having a very winable appeal, the outcome was scathingly against him.
I had another case where my adversary's arguments - despite winning in the court below - bordered on frivolous (and only became moreso with time). He seemed to be doing his best, but it was just bad. Rather than asking for sanctions, or criticising him, I focused entirely on the merits. I argued that not only was the lower court wrong for granting the defendant summary judgment, but the Court should search the record and give my client judgment as a matter of law. The record was sparse, but I suggested that my adversary would concede that certain facts were not in dispute (and he did). My client wound up with a judgment overwhelmingly in his favor, and I'm convinced it would not have gone so well if I hadn't taken the high road.
* Engage the court
Justice Scalia and Brian Garner wrote a book on appellate advocacy called "May It Please The Court," in which they suggest that oral argument is your opportunity to participate in the judges' deliberating process: listening to each judge's concerns and addressing them. It is one of the best books I've seen in this area, and the approach is well taken.
You need to make listening a priority, both with respect to your adversary and the judges. When a judge asks a question, answer it immediately. If necessary, make a quick note (such as a little star in your outline/flow-chart) to remind you to finish what you were trying to say. If you're good, you'll be able to weave your response seamlessly into your argument without losing your flow. The outcome of deferring or ignoring a question will be that the judges will either jump down your throat, or completely ignore everything else you have to say.
In the end, the outcome you want is an opinion in your favor. In your argument, you should be giving the judges fodder to use in crafting their decision. If you're lucky, one of your sound-bites will be adopted. I once received a decision that copied the preliminary statement from my brief almost verbatim. You will almost never see your advocacy explicitly complimented in a written decision, but being quoted (even if its not attributed to you -- which it won't be) is a huge compliment.
* Be Organized.
Don't read a prepared statement and think that's an argument. That is obvious advice, but it doesn't mean that you should "wing it." You need to plan out your argument, know which are your best points, and be prepared to jump around in response to the judges' questions.
When I argue, I use a flow chart. I put the main topics in bubbles, with sub-topics coming out on spokes (and key case names next to their respective sub-topic). I rarely look at the chart, since it's really a proxy for what's already in my head, but it has come in handy for planning out the argument. Then, before finishing, I can glance at the chart to make sure I've covered everything.
Whatever notes you use, keep them to one or two pages that you can place face-up on the podium. No-one wants to flip pages. One of the most common strategies is writing your notes on the inside of a manilla folder, which you can also put the briefs in.
On those same two pages, save room to make notes about your adversary's argument. I keep my flow chart on one page, then on a second page I make a line down the middle. Notes on my adversary's argument go on the left; my rebuttal points, if necessary, goes on the right.
Flag the record. Generally, you will not need to reference a specific page in the record during an argument. The judges have already been directed to the important documents or testimony by your brief, and usually won't ask you to point to a page number. It does happen, however, and it happens because there is something important on that page.
Sadly, all too often during oral argument, there will be a minute of awkward silence as a flustered attorney flips through pages on the verge of tears, then says "I know it's in here somewhere." Any documents or testimony that you think are important should be flagged and labeled with post-its. In the unfortunate event you do look for something in the record and can't find it, play it cool, give the best description you can of what it is and where it's found, and move on. In reality, it's probably not as big a deal as you think it is.
If you need to know a lot of cases, make one or two word notes in the table of authorities. That way, if a judge says what about such-and-such case, and you have no clue which case it was (which happens, despite best efforts), you have a readily available memory cue.
* Use Verbal Signposts.
If you want to get out three points, say something to the effect "there are three main issues I would like to address: first... ". This way, the judges know where you are going. Be careful, however, not to promise to talk about three things and only get to two.
If you are addressing your adversary's argument, reference it to let the court know what you are doing. If you are going back to a topic that a judge previously asked about, say something to engage that judge (especially if they are seemingly on your side).
* Use Caselaw Intelligently
This seems obvious, and you probably already did a lot of the work in your brief, but the back-and-forth of oral argument inherently gives legal discussion more depth.
You need to know the comparable cases extremely well, especially those that are binding on the court you are in front of. If possible, you should read underlying and subsequent decisions that give more detail on key cases. Frequently, the facts of a given case are described in very general terms, seemingly similar to your case, but key distinctions reveal themselves with further research.
Whenever you are discussing precedent, keep it closely tied to your own case. Your job when dealing with precedent is to compare and contrast relevent cases, not just explain them.
Update your research. There is always a lag between when briefs are filed and when the appeal is argued. If there is intervening case law that is on point, from the jurisdiction you are in front of or one that's binding on it, you should bring it to the court's attention. In the First Department, they provide you with index cards to write down any additional citations for the court. In any court, you can always bring it up during argument.
* Be sincere.
You are an advocate, and you should believe in your client's position. If you don't, perhaps someone else should do the arguing. Even if you don't agree with everything, and believe the court is going to side against you, there is always at least one point that deserves to be made clear. If necessary, focus on that, and build your argument around it. Policy arguments are the weakest type of argument you can make, but fundamental fairness and the rule of law are still at the heart of every good argument.
I watched an argument a few weeks ago where one side responded to progressively stronger requests that she sit down with statements such as "one last thing," followed by another minute or two of talking. Her adversary, on the other hand, agreed with nearly every yes or no question that was posed to him, even when the answers didn't help his client and were not things he had to agree with.
The two were actually rather skillful and experienced advocates. One was from a District Attorney's office, the other from a legal aid organization. They both likely knew that they were bending the "rules," but were engaged in passionate and sincere argument, which generally trumps any black-letter rules so long as it is done respectfully. There were a lot of examples of what not to do, but overall it was a great argument because both attorneys seemed to realy believe in their case and made good points.
RELATED POSTS:
* New York Motion Practice
* Notice of Entry and Notice of Appeal
* Keep it simple.
To be persuasive, you also need to be concise and straight-forward. No-one will be receptive to your argument if it's too drawn out to follow. Overall, put your best points up front to make sure they get out.
Prior to actually arguing before the court, go over the arguments again and again so that you can squeeze your best points into as few words as possible. Trim your argument down to your best sound-bites, and the rest will flow naturally. A short focused argument is better than a long and rambling one, and the simplest argument is often the most compelling.
Also, you don't always have to repeat everything in the briefs. Don't concede anything about your weak arguments, and be prepared for everything, but there is nothing wrong with focusing on the strong issues (or the ones that you feel the court will deem most important). If you are going to concentrate on one or two things, tell the court. You can say something like: Unless the Court has questions about the other issues, I would like to focus on X and Y. This is particularly helpful if you are the respondent in a scattershot appeal.
Different courts have different policies regarding time limits, and you should plan accordingly. For example, in lower New York where I practice, we have the First and Second Departments of the Appellate Division. In the First Department, time limits are relatively strictly adhered to, with colored lights signifying that you are running out of time. In the Second Department, they are more prone to being flexible with time limits, but you need to get the hint when the judges are suggesting that you sit down. Whatever the court's rules, you have a finite amount of time and need to make the most of it.
* Don't make unnecessary concessions.
The judges will occasionally cross-examine litigators with yes or no questions, trying to get them to concede points. On a rare occasion, such a judge is trying to help you strengthen your argument, or is using you to mouth their own argument in your favor. More often, however, the judge is trying to make you see the weaknesses of your case, or to concede something that may be fatal to your argument. I try not to say never, but be extraordinarily careful about conceding any issue during your argument. If you are going to concede a point, that decision should be made at the briefing stage, or at least prior to argument, not in the middle of your presentation. Don't press weak points, but you don't need to roll over if you disagree.
On the other hand, former Judge Wesley of the Second Circuit has argued that lawyers are often too-wary of conceding a point, thereby losing credibility with the court, saying "I would think that you would immediately concede it, if you're convinced that the judge is right and then immediately distinguish it." (NYLJ).
Overall, whether to concede a point is a fact-sensitive issue, and should not be done lightly. If you don't agree with what the judge is saying, you should confidently say so. If you think the judge may have a point, the best approach is to treat the question as meaning: even if this were true, why should you still win?
* Respectfully disagree with a hostile judge.
Dealing with a judge who clearly opposes your case is possibly the most difficult part of arguing an appeal. Most often, unless there is also a judge who seems to be on your side and they decided to play good cop/bad cop, an overtly hostile judge may signal that at least that judge (if not the entire panel) will side against you. If no-one else on the panel is bolstering your argument, they didn't give your adversary a hard time, and one or two judges attack your arguments vehemently, the panel is probably going to side against you.
At that stage, when you see a loss looming, don't give up. Don't unnecessarily drag it out, but your client has a right to be heard. Not only is it possible that you are misreading the judges, but in an appeal your arguments have a broader implication than just the case before you. Even if the judges disagree, you need to make sure they understand and respect your reasoning and issue a decision that is not bad precedent. Possibly, if your arguments are strong enough, you'll get a dissent. There are judges -- albeit relatively rarely -- who are more timid and won't speak up against a colleague during oral argument. Moreover, although the merit of an appeal is usually decided based on the briefs, there is always a possibility that a strong argument will sway one or more judges.
"With all due respect," is a phrase that very strongly signals that you disagree with someone. It can be seen as a polite F-U. I recently used it where a judge kept cutting me off, and the judge quickly cut me off again and said "the respect is implied counsel." (He then compared me to Charlie Brown listening to his teacher - but that's neither here nor there). The phrase "with all due respect" generally does not help you persuade the judge you are speaking to, or any that agree with that judge. It is adversarial, and its only real purpose is to draw the attention of any other judges on the panel who may be leaning (or teetering) in your favor.
* Focus On The Issues
Generally, appeals involve questions of law, and the judges are already familiar with the record and the issues. Get to the point, and stick to the real issues. It is not a jury argument, and shouldn't be treated like one. Be concise and straight-forward.
As a general rule, do not overtly appeal to sympathy or other emotive factors, but this rule very flexible and depends on what issues you are dealing with. When the panel is reviewing a jury verdict, for example, your argument may sound similar to a dense, evidence-focused, closing statement.
I watched a rather entertaining argument a couple months ago where a local Brooklyn business purchased an investment property at a foreclosure sale. The property had been owned by a rich old woman, there had been some confusion with the water bill, and it eventually went up for a foreclosure sale without the woman realizing it. The business was obviously a good faith purchaser, and had no knowledge that the woman intended to pay the bill. The old woman, however, wanted the building back because it had sentimental value (she grew up in one of the apartments) and wanted it to be part of a bequest in her will towards a complex for a medical school.
The lower court put a hold on the sale until a hearing could be held as to whether the woman's default could be vacated, and the business appealed. An overly-cocky lawyer represented the business, and started with a story about how he went to his son's class for career day and explained what lawyers do. The story had some moral about telling the truth, and the argument was that the other lawyer was lying about having served papers. While the lawyer snarkily grinned with pride that the judges let him finish his story before lashing into him, I thought to myself: I hope this guy didn't sound as sleazy when he spoke to his son's class.
Starting off with a story, and accusing the other side of lying, really didn't seem to sit well with the court. In fact, may have made the panel more sympathetic to the other side. Since the issue was whether the lower court had the equitable discretion to set aside the foreclosure, focusing on the grey area of credibility rather than black-letter law may have been very poor move.
Not helping the Old Lady's side, of course, was that her lawyer was a hot mess. The two attorneys were like Felix and Oscar. The Old Lady's lawyer argued that he had personally filed and served documents (which neither the Court nor opposing counsel received - but he was apparently permitted to submit during argument below), but the clerk had lost them and opposing counsel was lying. He refused to accept even the possibility that he didn't send them, despite the fact that it probably would have been easily excusable. Adding to this, the business had appealed from a motion to renew/reargue, filing two seperate briefs rather than consolidating, and the old lady's attorney didn't respond to the second appeal because he had changed offices apparently forgot to forward his mail.
As entertaining as it was watching this train-wreck of an argument, neither side squarely addressed the main issue of whether the lower court had equitable power to halt a foreclosure sale after the auction was already complete.
* Don't be a jerk
As you may have gleened from the story above, courts don't like when one lawyer attacks another or makes anything unduly personal. If you think the other lawyer or the lower court deserves to be chastised, let the court do it sua sponte. There's an old saying: if the facts are in your favor, pound on the facts; if the law is in your favor, pound on the law; if all else fails, pound on the table. Those are your choices (the table being policy or sympathy) and attacking anyone personally is not one of them. It's unprofessional, discourteous, and generally a bad idea.
I had a client once -- a law school graduate who, until then, had appeared pro se -- who had been granted leave to move for reconsideration in the Appellate Division on a legal issue of national significance. I came in to handle the reconsideration motion, with an eye towards going to the Court of Appeals. Rather than focusing on substance, the client insisted on personally naming and attacking court personnel, whom he believed had made technical administrative errors. Eventually, we parted ways, he argued on his own and apparently didn't heed my advice. Despite having a very winable appeal, the outcome was scathingly against him.
I had another case where my adversary's arguments - despite winning in the court below - bordered on frivolous (and only became moreso with time). He seemed to be doing his best, but it was just bad. Rather than asking for sanctions, or criticising him, I focused entirely on the merits. I argued that not only was the lower court wrong for granting the defendant summary judgment, but the Court should search the record and give my client judgment as a matter of law. The record was sparse, but I suggested that my adversary would concede that certain facts were not in dispute (and he did). My client wound up with a judgment overwhelmingly in his favor, and I'm convinced it would not have gone so well if I hadn't taken the high road.
* Engage the court
Justice Scalia and Brian Garner wrote a book on appellate advocacy called "May It Please The Court," in which they suggest that oral argument is your opportunity to participate in the judges' deliberating process: listening to each judge's concerns and addressing them. It is one of the best books I've seen in this area, and the approach is well taken.
You need to make listening a priority, both with respect to your adversary and the judges. When a judge asks a question, answer it immediately. If necessary, make a quick note (such as a little star in your outline/flow-chart) to remind you to finish what you were trying to say. If you're good, you'll be able to weave your response seamlessly into your argument without losing your flow. The outcome of deferring or ignoring a question will be that the judges will either jump down your throat, or completely ignore everything else you have to say.
In the end, the outcome you want is an opinion in your favor. In your argument, you should be giving the judges fodder to use in crafting their decision. If you're lucky, one of your sound-bites will be adopted. I once received a decision that copied the preliminary statement from my brief almost verbatim. You will almost never see your advocacy explicitly complimented in a written decision, but being quoted (even if its not attributed to you -- which it won't be) is a huge compliment.
* Be Organized.
Don't read a prepared statement and think that's an argument. That is obvious advice, but it doesn't mean that you should "wing it." You need to plan out your argument, know which are your best points, and be prepared to jump around in response to the judges' questions.
When I argue, I use a flow chart. I put the main topics in bubbles, with sub-topics coming out on spokes (and key case names next to their respective sub-topic). I rarely look at the chart, since it's really a proxy for what's already in my head, but it has come in handy for planning out the argument. Then, before finishing, I can glance at the chart to make sure I've covered everything.
Whatever notes you use, keep them to one or two pages that you can place face-up on the podium. No-one wants to flip pages. One of the most common strategies is writing your notes on the inside of a manilla folder, which you can also put the briefs in.
On those same two pages, save room to make notes about your adversary's argument. I keep my flow chart on one page, then on a second page I make a line down the middle. Notes on my adversary's argument go on the left; my rebuttal points, if necessary, goes on the right.
Flag the record. Generally, you will not need to reference a specific page in the record during an argument. The judges have already been directed to the important documents or testimony by your brief, and usually won't ask you to point to a page number. It does happen, however, and it happens because there is something important on that page.
Sadly, all too often during oral argument, there will be a minute of awkward silence as a flustered attorney flips through pages on the verge of tears, then says "I know it's in here somewhere." Any documents or testimony that you think are important should be flagged and labeled with post-its. In the unfortunate event you do look for something in the record and can't find it, play it cool, give the best description you can of what it is and where it's found, and move on. In reality, it's probably not as big a deal as you think it is.
If you need to know a lot of cases, make one or two word notes in the table of authorities. That way, if a judge says what about such-and-such case, and you have no clue which case it was (which happens, despite best efforts), you have a readily available memory cue.
* Use Verbal Signposts.
If you want to get out three points, say something to the effect "there are three main issues I would like to address: first... ". This way, the judges know where you are going. Be careful, however, not to promise to talk about three things and only get to two.
If you are addressing your adversary's argument, reference it to let the court know what you are doing. If you are going back to a topic that a judge previously asked about, say something to engage that judge (especially if they are seemingly on your side).
* Use Caselaw Intelligently
This seems obvious, and you probably already did a lot of the work in your brief, but the back-and-forth of oral argument inherently gives legal discussion more depth.
You need to know the comparable cases extremely well, especially those that are binding on the court you are in front of. If possible, you should read underlying and subsequent decisions that give more detail on key cases. Frequently, the facts of a given case are described in very general terms, seemingly similar to your case, but key distinctions reveal themselves with further research.
Whenever you are discussing precedent, keep it closely tied to your own case. Your job when dealing with precedent is to compare and contrast relevent cases, not just explain them.
Update your research. There is always a lag between when briefs are filed and when the appeal is argued. If there is intervening case law that is on point, from the jurisdiction you are in front of or one that's binding on it, you should bring it to the court's attention. In the First Department, they provide you with index cards to write down any additional citations for the court. In any court, you can always bring it up during argument.
* Be sincere.
You are an advocate, and you should believe in your client's position. If you don't, perhaps someone else should do the arguing. Even if you don't agree with everything, and believe the court is going to side against you, there is always at least one point that deserves to be made clear. If necessary, focus on that, and build your argument around it. Policy arguments are the weakest type of argument you can make, but fundamental fairness and the rule of law are still at the heart of every good argument.
I watched an argument a few weeks ago where one side responded to progressively stronger requests that she sit down with statements such as "one last thing," followed by another minute or two of talking. Her adversary, on the other hand, agreed with nearly every yes or no question that was posed to him, even when the answers didn't help his client and were not things he had to agree with.
The two were actually rather skillful and experienced advocates. One was from a District Attorney's office, the other from a legal aid organization. They both likely knew that they were bending the "rules," but were engaged in passionate and sincere argument, which generally trumps any black-letter rules so long as it is done respectfully. There were a lot of examples of what not to do, but overall it was a great argument because both attorneys seemed to realy believe in their case and made good points.
RELATED POSTS:
* New York Motion Practice
* Notice of Entry and Notice of Appeal
Saturday, April 18, 2009
New York Motion Practice
Below are some thoughts on New York motion practice.
PROCEDURE
A motion is made whenever you want to request that the Court issue an order. Written motions can be made through either a Notice of Motion or Order to Show Cause.
A motion on notice is the "standard" form for a motion. The party making the motion chooses a return date and serves their adversary with notice that they will be making a motion on a particular date, in a particular courtroom, as well as any papers will be submited in support of the motion. At a minimum, you need to serve your papers eight days in advance of the return date, bearing in mind that service by regular mail is not "compete" until five days after mailing. (CPLR 2214-2215). Personally, I try to use methods of service that are completed immediately (e-mail or fax) whenever possible.
The second method for making a motion, an Order to Show Cause, involves immediate Court intervention. The moving party goes to the court with their motion papers (usually at the court's "ex-parte" part), and obtains an Order requiring the opposing party to appear on a certain date and time before a judge to oppose the motion. Orders to Show Cause are more burdensome for the judges involved, and so should not be used unless there is good reason.
There are two main reasons you would want to proceed by Order to Show Cause rather than Notice of Motion. First, the Court sets the timeframe for the motion to be heard, so a short and specific schedule can be ordered and adjournments are more difficult to obtain. Second, (provided the other party was provided with at least some notice, such as a phone call the day before, less such notice would be impractical), a judge can order immediate relief, such as a restraining order, injunction, or similar relief.
FORMAT
The Notice of Motion or Proposed Order to Show cause acts as a cover page to the main motion papers.
The affirmation/affidavit is the main document in your motion papers. It is the document to which you annex your exhibits and in which you make your written argument.
Like every formal document submitted to a court, the affirmation begins with a caption, which should be clean and neat. The rules are set forth in C.P.L.R. 2101, which says, essentially, each document should begin with a caption listing the name of the Court, the parties (all parties should be listed in summonses, complaints, and judgments; in other papers you only need the first-named parties and a notation such as "et al."), the index number, and a title identifying the nature of the document.
New York State courts do not require memoranda of law. Instead, they use what is called a "speaking affirmation." Attorneys are permitted to submit both their legal and factual arguments in an affirmation. An attorney's affirmation is not evidence, and factual statments must be supported by exhibits attached to the motion papers.
Pro-se litigant (even if they are also attorneys), must use an affidavit instead of an affirmation. An affidavit must be notarized, but the factual statements contained in an affidavit are considered evidence (provided the party making the affidavit has direct knowledge). Supporting exhibits, of course, still help.
In the Supreme Court, filing a motion costs $45; there is no fee in the NYC Civil Court or local District Courts. There is no fee for responding to a motion. You can find a form motion (formatted for NYC Civil Court), as well as other helpful forms, here.
CONTENT
Below the caption, the party making the affirmation or affidavit identifies themselves. An old rule of practice is that the writer's name is listed in all caps. As an attorney, I would write "SCOTT J. KREPPEIN, an attorney duly admitted to practice before this Court, affirms the following under penalty of perjury." If I were a pro-se litigant, the affidavit would begin "SCOTT J. KREPPEIN, being duly sworn, deposes and states."
After this first identification, every paragraph should be numbered. In the first or first few numbered paragraphs, the writer informs the court of their relationship to the litigation, what the submission is for, and what the papers will argue. For example, a pro se litigant submitting an affidavit in support of a motion would write: I am the plaintiff in the above action, and make this affidavit based upon my own knowledge. This affidavit is respectfully submitted in support of my motion for ABC, which should be granted because of X, Y and Z.
These first paragraphs should provide a readable roadmap for your submission. If you have four points, tell the court that you have four arguments and list them. You can use bullets and sub-paragraphs if necessary. If you haven't convinced the judge that you should win by the second page of your submission, then you haven't done your job right.
FACTS
The fact section should include four things: facts essential to your legal points; facts your adversary will undoubtedly rely on; enough procedural history and background to provide context; and a sparing dose of humanization. Organization is key, and your facts need not be in chronological order. You need to decide how to best present your case, and each case is different. Whatever you do, you should get to the point early. It is often good practice to start off with the pivotal event (the injury, the manner in which the contract was breached, etc.).
You should have topic sentences. Dates and witness names are not topics. If you reference a date, it should only be because it is an important fact. If you are referencing dates because of the time span between them, state the timespan, not just the date. Don't make the court do math, they don't like that.
Your statement of facts should be crafted as a coherent narrative. Tell your story. You do not want a balanced presentation: you want a coherant narrative that supports your side. The narrative must be truthful, but don't make your adversaries' arguments for them.
That said, there are two reasons to include adverse facts: either you want to prevent the shock of having not disclosed them, or you want to pre-emptively deflate your opponent's argument. Dealing with a fact that hurts you is always a judgment call.
Sympathetic but irrelevant facts should be used sparingly, and with decorum and respect for the judge's intelligent. A brief statement of a plaintiff's injuries is appropriate, such as "P fell and suffered a broken arm." A long, drawn out plea for sympathy is not.
DISCUSSION
The discussion is your legal argument. In law school, they teach you to make your arguments in four steps: identify the issue (and how it should be resolved), identify the applicable legal rule, apply the legal rule, and restate your conclusion. My prior "resources" post provides links to a free case law research database, important statutes, and several other useful links.
CONCLUSION
Motion papers conclude with a request for relief, which generally begins with something to the effect of "Wherefore, it is respectfully requested that an Order be issued...." and ends with "together with such other and further relief as is deemed just and proper." In this paragraph, you should tell the Court exactly what you want it to order.
DECISIONS AND ORDERS
In some courts, you are expected to appear on the return date prepared to argue; in others, all motions are done on submission. If you are not sure about the procedures in the venue where your motion will be filed, you should check with that court's clerk, motion support office, or pro se office.
Generally, judges are supposed to issue an Order deciding the motion within 60 days of when the motion is fully submitted. (C.P.L.R. 2219). In practice, however, a judge may take longer to issue a decision.
Once an Order is issued, it should be served with notice of entry upon the other party, which starts the clock for when an appeal can be taken (30 days under CPLR 5513), and may have other significance.
RELATED POSTS:
RELATED POSTS:
* How To Argue An Appeal
* Notice of Entry and Notice of Appeal
RELATED POSTS:
RELATED POSTS:
* How To Argue An Appeal
* Notice of Entry and Notice of Appeal
Tuesday, April 15, 2008
Notice of Entry and Notice of Appeal: A Boring Topic, With A Noble History
For the last 150 years, New York's courts have, for the most part, followed the same procedure for processing orders and judgments. When a judge issues an order, that order must then be "entered," i.e. filed with the county clerk. The county clerk keeps a minute book, which is essentially a ledger, and whenever anything is filed a notation is made in the book. The clerk's minutes are now usually entered twice: they are hand written and then typed into a computer system. If you go to the records room of most courthouses -- particularly older courthouses, like the Manhatten Supreme Court -- you will see clerk's minute books going back hundreds of years.
Entry is important for several reasons: judgments do not begin collecting interest until they are entered, and appeals cannot be taken from an order that was not entered. Often, there is a significant gap of time between when an order is issued and when it is entered. How long it takes depends on how quickly the judge sends the order to the county clerk, if they send it at all. Just because you were mailed a copy of the order does not necessarily mean it was entered, and in some instances the judge will leave it to the parties to enter the order with the county clerk.
It seems odd that you would receive a document from the court, but then have to re-file it with the court before it takes effect, but that is how it sometimes works.
Pursuant to C.P.L.R. 5513, to preserve an appellant's right to appeal, a notice of appeal must served and filed within thirty days after service upon the appellant of a notice of entry. In the Federal Courts and many other states, the time for noticing an appeal begins the moment an order is entered. New York State Court, however, adds the twist that a "notice of entry" must be served.
"To be effective the ‘Notice of Entry’ must strictly comply with CPLR 5513 and state exactly when and with whom the order or judgment was entered, and if it describes the judgment or order, the description must be accurate." Unique Marble & Granite Org. Corp. v. Hamil Stratten Props., LLC, 13 Misc. 3d 1239A, 831 N.Y.S.2d 357 (Queens County Sup. Ct. 2006) citing Reynolds v. Dustman, 1 N.Y.3d 559, 772 N.Y.S.2d 247 (2003)(service of an unstamped copy of the order, with a cover letter saying it had been filed with the clerk, did not constitute proper notice of entry).
Although modern litigation practice is often forgiving of minor mistakes, "strict practice must be pursued to limit the time to appeal," and thus a notice of entry must be accurate. Falker v. New York, W. S. & B. R. Co., 100 N.Y. 86, 2 N.E. 628 (1885). An incorrect date of entry is a material defect that renders a notice of entry void. Nagin v. Long Island Savings Bank, 94 A.D.2d 710, 462 N.Y.S.2d 69 (2d Dept 1983); Ping Lum v. YWCA, 136 A.D.2d 972, 525 N.Y.S.2d 82 (4th Dept. 1988).
There is, however, no formal requirement for how a notice of entry is formatted. A party can, for example, provide a stamped copy of the order and rely on the clerk's stamp to provide the material elements of "date of entry and the name of the clerk of the court where the order was entered." Norstar Bank v. Office Control Sys., 78 N.Y.2d 1110 (1991). See also Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596; 612 N.Y.S.2d 415 (2d Dept. 1994)(the absence of an index number is not a material defect in a notice of entry).
This system of entering orders and noticing entry appears to have originated in the 1840's and 1850's, when the Field Code and New York's first Code of Procedure was drafted. (Google Books has a good selection of old civil procedure treatises). At common law, there were no interlocutory appeals. After a judgment was entered, the losing party could submit a "writ of error" to the appellate court, and had the opportunity to include "appeals" regarding interim orders (such as discovery orders) only when they filed their write of error. With the enactment of the Code of Procedure in 1849, the term "appeal" was used for both final and interlocutory orders. For lawsuits that were pending in 1849, they were given two years from entry of judgment within which to file their appeal.
For new lawsuits after 1849, the parties were given "thirty days from after written notice of the judgment or order shall have been given to the party appealing." In the commetary, the drafters explain that the time for appealing does not begin to run until after the order or judgment is entered. The language was somewhat ambiguous, but there were a few early cases that clarified the practice.
Entry is important for several reasons: judgments do not begin collecting interest until they are entered, and appeals cannot be taken from an order that was not entered. Often, there is a significant gap of time between when an order is issued and when it is entered. How long it takes depends on how quickly the judge sends the order to the county clerk, if they send it at all. Just because you were mailed a copy of the order does not necessarily mean it was entered, and in some instances the judge will leave it to the parties to enter the order with the county clerk.
It seems odd that you would receive a document from the court, but then have to re-file it with the court before it takes effect, but that is how it sometimes works.
Pursuant to C.P.L.R. 5513, to preserve an appellant's right to appeal, a notice of appeal must served and filed within thirty days after service upon the appellant of a notice of entry. In the Federal Courts and many other states, the time for noticing an appeal begins the moment an order is entered. New York State Court, however, adds the twist that a "notice of entry" must be served.
"To be effective the ‘Notice of Entry’ must strictly comply with CPLR 5513 and state exactly when and with whom the order or judgment was entered, and if it describes the judgment or order, the description must be accurate." Unique Marble & Granite Org. Corp. v. Hamil Stratten Props., LLC, 13 Misc. 3d 1239A, 831 N.Y.S.2d 357 (Queens County Sup. Ct. 2006) citing Reynolds v. Dustman, 1 N.Y.3d 559, 772 N.Y.S.2d 247 (2003)(service of an unstamped copy of the order, with a cover letter saying it had been filed with the clerk, did not constitute proper notice of entry).
Although modern litigation practice is often forgiving of minor mistakes, "strict practice must be pursued to limit the time to appeal," and thus a notice of entry must be accurate. Falker v. New York, W. S. & B. R. Co., 100 N.Y. 86, 2 N.E. 628 (1885). An incorrect date of entry is a material defect that renders a notice of entry void. Nagin v. Long Island Savings Bank, 94 A.D.2d 710, 462 N.Y.S.2d 69 (2d Dept 1983); Ping Lum v. YWCA, 136 A.D.2d 972, 525 N.Y.S.2d 82 (4th Dept. 1988).
There is, however, no formal requirement for how a notice of entry is formatted. A party can, for example, provide a stamped copy of the order and rely on the clerk's stamp to provide the material elements of "date of entry and the name of the clerk of the court where the order was entered." Norstar Bank v. Office Control Sys., 78 N.Y.2d 1110 (1991). See also Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596; 612 N.Y.S.2d 415 (2d Dept. 1994)(the absence of an index number is not a material defect in a notice of entry).
This system of entering orders and noticing entry appears to have originated in the 1840's and 1850's, when the Field Code and New York's first Code of Procedure was drafted. (Google Books has a good selection of old civil procedure treatises). At common law, there were no interlocutory appeals. After a judgment was entered, the losing party could submit a "writ of error" to the appellate court, and had the opportunity to include "appeals" regarding interim orders (such as discovery orders) only when they filed their write of error. With the enactment of the Code of Procedure in 1849, the term "appeal" was used for both final and interlocutory orders. For lawsuits that were pending in 1849, they were given two years from entry of judgment within which to file their appeal.
For new lawsuits after 1849, the parties were given "thirty days from after written notice of the judgment or order shall have been given to the party appealing." In the commetary, the drafters explain that the time for appealing does not begin to run until after the order or judgment is entered. The language was somewhat ambiguous, but there were a few early cases that clarified the practice.
The procedure today is substantially the same as it was in the nineteenth century. (See Falker, Supra). The one notable exception is that the Code's language indicates that only the successful party could serve notice of entry, not the prospective appellant. Thus, someone who won summary judgment, for example, could delay an appeal by not serving notice of entry. In his 1899 Encyclopedia of Pleadings and Practice, William McKinney suggests that the proper procedure in such a situation is to move the lower court to compel the successful party to serve notice of entry. The C.P.L.R. corrected this problem, and allows for either party to serve notice of entry.
Note: The motion that precipitated this post was: Barbera v. Summit School, 2008 NYSlipOp 71932U (2d Dept., May 14, 2008)("motion... to dismiss the appeal as untimely taken is denied on the ground that the notice of entry was defected and the entry date of the order was incomplete"). I did not want to mention the case in the original post until the motion was finally decided.
RELATED POSTS:
* How To Argue An Appeal
* New York Motion Practice
Looking for a Long Island Attorney? Call me at 631-482-9700, or email me at Skreppein@Qhmlaw.com.
Note: The motion that precipitated this post was: Barbera v. Summit School, 2008 NYSlipOp 71932U (2d Dept., May 14, 2008)("motion... to dismiss the appeal as untimely taken is denied on the ground that the notice of entry was defected and the entry date of the order was incomplete"). I did not want to mention the case in the original post until the motion was finally decided.
RELATED POSTS:
* How To Argue An Appeal
* New York Motion Practice
Looking for a Long Island Attorney? Call me at 631-482-9700, or email me at Skreppein@Qhmlaw.com.
Saturday, September 8, 2007
Re: Are Plaintiff's Attorneys Becoming Targets?
There was a post on the law.com blog today entitled, Are Plaintiff's Attorneys Becoming Targets? discussing whether the Federal Government and various special interest groups are now targetting the Plaintiff's bar. Plaintiff's publications such as "Trial: The American Associate of Justice Journal" have been discussing this issue for a long time, and there has been academic scholarship on the issue for decades.
In short, it is well established that yes, Special Interest groups and, in turn, the Federal and State governments are prone to attacking trial lawyers. It is a reciprocal relationship, since the goal of the Trial bar is for the most part, unfortunately, to go after deep pockets. The Trial layers vilify "Corporate America," and Corporate America vilifies the trial lawyers. It is so engrained in the anglo-american culture that it can be considered a quasi-governmental function akin to journalism. Trial lawyer's do not simply target insurance companies, and point out the most shameful conduct in that industry, they do it to every industry.
Tort Law, (the field of law that encompasses personal injury, medical malpractice, and the other retail t.v. commercial type issues, as well as more complex fiduciary and commercial matters), is the field of law that involves governmentally imposed morals, and thus Tort lawyers are, at least they are supposed to be, the gate keepers for public responsibility.
We probably are seeking an era where special interest groups are particularly influential and exploiting the Plaitiff's bar's failings (while hiding their own). The lesson from the situation, however, deals more with the big picture. If the less-ethical side of Corporate America (bear in mind I am a big fan of corporate america, I just feel that you need to keep an eye on its leaders, since not all of them are ethical) is winning this battle, it means that we need stronger gatekeepers.
What keeps the Plaintiff's bar down is a lack of public respect and unfortunately low salaries. Money is concentrated at the top, just like in corporate america, and Plaintiff's lawyers are disproportionately composed of sole practitioners and small firms. Salaries for the Plaintiff's bar, (median and mode moreso than average) are a mere fraction of the salaries for their large-firm and defense counterparts. There's two explanations: first, that the 1/3 contingency fees are less lucrative than hourly billing; and second (the one I find more credible), that the money does not trickle down (and I don't mean this to knock my current firm, it is an industry wide epidemic). The average Plaintiff's attorney, however, even if they are making less, has a chance -- if they are successful -- to do better than they would as a partner at a large firm.
What we need are better Plaintiff's attorneys, both as an ethical and practical matter. Top law school grads go to large firms, and Plaintiff's work -- as an entry-level job -- is considered profoundly less respectable than public interest but with near comparable pay. Until that changes, the Plaintiff's bar will be on the defensive.
In short, it is well established that yes, Special Interest groups and, in turn, the Federal and State governments are prone to attacking trial lawyers. It is a reciprocal relationship, since the goal of the Trial bar is for the most part, unfortunately, to go after deep pockets. The Trial layers vilify "Corporate America," and Corporate America vilifies the trial lawyers. It is so engrained in the anglo-american culture that it can be considered a quasi-governmental function akin to journalism. Trial lawyer's do not simply target insurance companies, and point out the most shameful conduct in that industry, they do it to every industry.
Tort Law, (the field of law that encompasses personal injury, medical malpractice, and the other retail t.v. commercial type issues, as well as more complex fiduciary and commercial matters), is the field of law that involves governmentally imposed morals, and thus Tort lawyers are, at least they are supposed to be, the gate keepers for public responsibility.
We probably are seeking an era where special interest groups are particularly influential and exploiting the Plaitiff's bar's failings (while hiding their own). The lesson from the situation, however, deals more with the big picture. If the less-ethical side of Corporate America (bear in mind I am a big fan of corporate america, I just feel that you need to keep an eye on its leaders, since not all of them are ethical) is winning this battle, it means that we need stronger gatekeepers.
What keeps the Plaintiff's bar down is a lack of public respect and unfortunately low salaries. Money is concentrated at the top, just like in corporate america, and Plaintiff's lawyers are disproportionately composed of sole practitioners and small firms. Salaries for the Plaintiff's bar, (median and mode moreso than average) are a mere fraction of the salaries for their large-firm and defense counterparts. There's two explanations: first, that the 1/3 contingency fees are less lucrative than hourly billing; and second (the one I find more credible), that the money does not trickle down (and I don't mean this to knock my current firm, it is an industry wide epidemic). The average Plaintiff's attorney, however, even if they are making less, has a chance -- if they are successful -- to do better than they would as a partner at a large firm.
What we need are better Plaintiff's attorneys, both as an ethical and practical matter. Top law school grads go to large firms, and Plaintiff's work -- as an entry-level job -- is considered profoundly less respectable than public interest but with near comparable pay. Until that changes, the Plaintiff's bar will be on the defensive.
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