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

On Punctuation

I write a lot. I always have, and somewhere along the line I think I became halfway decent at it. Below are some of my thoughts on punctuation, with a few links to recent posts I've read discussing similar issues.

SEPERATING PHRASES

The Comma. A comma seperates clauses or items in a list. It is often optional[,] and should be used sparingly. Strategically, a comma is used in order to break the flow of a sentence. The comma before a conjunction at the end of a series -- i.e. "A, B, C and D" or "A, B, C, and D" -- is called the serial comma, oxford comma, or harvard comma, and (as with any comma that precedes a conjunction) it is a matter of taste. (See Wayne Scheiss' Legal Writing Blog).

The Em-Dash. An em dash (a long line, or two hyphens) can be used in lieu of a comma in any situation other than a list. It signals a long pause, and usually denotes that thought that is tangential to the rest of the sentence. (See Disputed Issues Blog). One of the most useful times to use an em-dash is when you want to set apart a phrase that contains additional punctuation, such as the example in the comma section above. When used at the end of a sentence, only one dash is used -- such as this sentence, here. As a practical point, the dash should be used very selectively. It makes a dramatic point, and tends to make a phrase stand out for the reader, but overuse can make your writing difficult to follow. As a rule of thumb, I never use more than one dashed phrase in the same paragraph, and I try to use no more than one such phrase every few pages.

Parentheses. Like the em-dash, parentheses can be used in lieu of a comma, particularly where the thought is a departure from the main point of the sentence. (As an aside, one of the interesting things about parentheses is that they can contain entire sentences, and even multiple sentences. When a parentheses contains a complete sentence, the period goes within the parens.) Parentheses can be used more liberally than the em dash, but should still not be overused.

COMBING WORDS

Hyphenation. Although many people would disagree with this, hyphenation is often merely a matter of taste. Hyphen usage is more common in British writing than American, and the overall trend is towards more sparse usage. A hyphen links two words so that they are viewed as a single concept, and thus can have a dramatic effect on readability. There are three reasons to use a hyphen: first, numbers, such as twenty-two or one-hundred, can be hyphenated; second, pre-fixes can by hyphenated to prevent mispronunciation or where the prefix/root combination is not common; and, third, hyphens can be used to combine words to create a stronger connection between them. A hanging hyphen is used for phrases such as one- or two-family home. (See Wikipedia)

The Slash. The jury is still out on the slash for me. A slash is often considered informal because of its use in abbreviations, such as w/. The slash, also called a virgule, can be use to instead of a prepositional phrase where the preposition would take two objects. Rather than saying "the X of A and B" or "the X between A and B," you can say "the A/B X." The phrase "prefix/root" in the preceding paragraph is one example. This device can be useful where you are discussing multiple contracts. I despite the phrase "and/or." Only the word "or" is necessary in most situations, and if you really want to emphasize that it could be both, you can say "A or B, or both." Similarly, "s/he" can easily be replaced by the plural.

THE COLON AND SEMI-COLON

The Colon. A colon says: here read this! It can be used to introduce a list, to denote speach, or to set off a single word or sperate phrase at the end of a sentence.

The Semi-Colon. The semi-colon is used to seperate independent clauses (that have their own subject and predicate). Some people claim it is under-used; but take caution, it can be habit forming. (See Disputed Issues Blog).

Re: Encouraging Discretion in Blogging Is Better Than Restricting It

Carolyn Elefant of the Law.com blog recently published an interesting post, here, entitled "Encouraging Discretion in Blogging Is Better Than Restricting It." Elefant's post was itself a response to Connecticut Employment Law blogger Daniel Schwartz' "The Blog Post I Didn't Publish," here, and here is my two cents:

I am a relatively new blogger, but there are definitely some difficult choices in deciding what to post. First, blogging is habit forming, and as a junior associate I don't want it to detract from my work. Second, there is a danger of damaging a pending case. In fact, a week or so ago I read a post that discussed an appeal where I had written the bulk of the winning brief, and I was tremendously tempted to post a comment that drew from an an off-the record discussion with the opposing attorney about his theory of the case. The comment likely would have been harmless, and was well intended, but with the possibility of the matter being re-filed I thought it tread into some questionable territory.

If my firm were to create guidelines, however, I would hope they would be along the lines of the ethical canons, as opposed to strict directives. The nice part of blogging is the freedom of it. Most of what I write is heavily constrained by seriousness and a desire to maintain a certain level of decorum, but in a blog post you can -- in theory -- write whatever you want and be as stylistically creative as you want.

Re: Skilling/Enron Appeal

A few days ago, the WSJ Law Blog published a post, here, discussing Jeffrey Skilling's 237 page appellate brief in the Enron criminal prosecution. Since I concentrate in appellate practice and commercial litigation, I thought the tome was worth taking a look at (although I did not have time to read the whole thing).

Generally, appellate briefs have strict page and word limits, (in federal court, the limit by default is 14,000 words (i.e., a little over 25 pages of text). Appellate courts also generally discourage bullets and charts, which this particular brief used a great deal. Noticibly absent from the brief, at least the version given to the WSJ, are a table of contents and table of authorities.

O'Melvany and Myers, however, is a good firm, and if you're at the top you get to bend the rules. The brief makes four arguments: (1) the prosecution's legal theory was faulty because "honest services" fraud, i.e. fraud that was meant in good faith to help the shareholders, is a misunderstanding of the criminal law, which requires intent; (2) the jury instructions were bias; (3) the jury was bias, both due to incomplete questioning by the court during jury selection and the refusal to change the venue from Houston, a city that was particularly hurt by the Enron callapse; and (4) prosecutorial misconduct consisting of withhelding and destroying evidence and coercing witnesses.

To weed out these arguments, however, you will need to read eleven pages into the brief. The strategy is clear: overwhelm the appellate court with rhetoric and complex argument so that they can better understand how the jurors and lower court were overwhelmed by the publicity and complexity of this case.

My guess is that the appellate court will grant some extension, perhaps double their ordinary word limit and give the prosecution a higher word limit and additional time to respond, but I think the court will see, as is clear from looking at the brief, that the brief needs an editor to go through and slash the surplus.

One of the main things they teach in legal writing courses is to be succinct and avoid excess verbiage. In practice, this skill is slowly pruned, since -- unfortunately -- the "weight of the evidence" often refers to the literal heft of the papers submitted rather than the substance of the argument. Authorship on the brief is shared by nine attorneys (and, most likely, there are countless unnamed junior associates and researchers) and it seems that the overall editor did not keep the individual writers on as short of a leash as he needed. The arguments are good, and as someone who writes appellate briefs I understand that it is simply painful to cut out days worth of research, or catchy phrases that made you feel clever when you wrote them, but it needs to be done.

One of my pet pieves, although I do it all the time, is co-writing. In every complex matter I've worked on there has been at least one argument that I believe in strongly which is dropped from the final brief. I have a penchant for arguments where my opposition has failed to jump through a technical hoop, and my experience has been that most judges, particularly federal judges, are prone to agreeing with these arguments because they are clear cut: this person was required to do something, they didn't do it, hence, I win. My supervisor, on the other hand, is more a fan of what one of my appellate advocacy professors called "uncle joe" arguments: common sense, fact centered, moral arguments. Which, since judges are human, are persuasive. Overall, however, I can't be too angry about it, because the balance works well. They need someone with a liberal red pen.