1 a  pretrial motion practice woods 1 hb lead-conf cx
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  • 1. November 14-15, 2013
  • 2.  I. Before you Begin Drafting  II. Motion Drafting – Best and Worst Practices  III. Drafting in Anticipation of an Appeal  IV. Oral Argument V. Pre and Post-Argument Submissions  VI. Summary Judgment Motions
  • 3.     Think about your argument Review your adversary’s pleadings Review the evidence marshaled in discovery Perform a search for new precedent ◦ Lead Poisoning Decisions ◦ General Premises Liability Decisions
  • 4. Preliminary Statement – “Best Practices”  Clearly explain what you want!  Clearly explain who you want it for!  Clearly explain why you should get what you want!
  • 5.  Preliminary Statement – “Worst Practices” Comprising your Preliminary Statement with vague, factually unsupported assertions: ◦ “Plaintiff cannot raise a triable question of fact” ◦ “Plaintiff’s arguments are discussed below” • Comprising your Preliminary Statement with detailed factual and legal argument that will appear in the body of your Brief
  • 6. Presentation of Evidence – “Best Practice”    Tell the Court a Story Tell the Courtwhy you are presenting each piece of evidence Tell the Court whether any material inferences can or cannot be drawn from the evidence
  • 7. Presentation of Evidence – “Worst Practices”  Providing the Court with an Attorney Affidavit that contains nothing but your interpretation of the evidence  Paraphrasing when you can quote  Providing the Court with a long list of facts
  • 8.  Presentation of Case Law – “Best Practices” Provide the Court with an understanding of the facts, reasoning and holdings of analogous precedent  Quote case law whenever possible  Distinguish adverse precedent
  • 9.  Presentation of Case Law – “Worst Practices” Over citing  Overusing parentheticals  Stretching the case law
  • 10.   Presenting the Novel Legal Argument “Common sense” argument that is neither supported nor rejected by controlling precedent Argument supported by the case law of another jurisdiction
  • 11.   Presenting the Novel Legal Argument Present as an alternative argument when the primary argument is not incredibly strong Protect your credibility by advising the Court that you are not depending on the argument
  • 12.    Always let a period of 24 hours lapse between the time you finish drafting and the time you begin editing (more if possible) Always ask a colleague to proofread your papers Always avoid the following: ◦ ◦ ◦ ◦ “clearly” or “obviously” “the court should ….” “it is plaintiff’s position that ….” “assuming, arguendo ….” (when making a factual argument)
  • 13. New York Trial Court Rule 202.8: “[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law” General Rule in the Appellate Courts: A Memorandum of Law is not to be included in the Record on Appeal    Montefiore Med. Ctr. V. Crest Plaza LLC, 889 N.Y.S.2d 506 (Sup. Crt. 2009); In re Taylor, 265 A.D. 858 (2nd Dept. 1942); 380 Yorktown Food Corp. v. 380 Downing Dr., 35 Misc. 3d 1243(A)
  • 14. Your argument is preserved when: (1) (2)    Your Attorney Affidavit contains a discussion of all of the facts essential to make the argument; and Your Attorney Affidavit introduces the Court to the legal argument Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405 (1st Dept. 2009); Bock v. Magee, 146 A.D.2d 730 (2nd Dept. 1989); and Gerdowsky v. Crain’s New York Business, 188 A.D.2d 93 (1st Dept. 1993)
  • 15.  Byrd v. Roneker, 90 A.D.3d 1648(4thDept., 2011) “we conclude that plaintiff’s memorandum of law was properly included in the record on appeal, but only for the limited purpose of determining whether certain of plaintiff’s contentions are preserved for our review”
  • 16.  Additional Tips If an authority is not cited in a major reporter, make sure you attach it to your Attorney Affidavit ◦ Trial Court Orders ◦ Statutory History ◦ Peer Reviewed Literature • Attach an affidavit from your client, even if sufficient evidence already exists in the deposition testimony
  • 17. Preparing for Oral Argument     Ask colleagues about the Judge’s style of oral argument Stage a mock argument of your weakest points with a colleague Shepardize your case law the night before the argument Consider whether a visual aid would be helpful
  • 18.  Use of Visual Aids Consider using for: ◦ Complex fact patterns ◦ Important Photograph Evidence ◦ Key quotes from case law that you went to stress to the Court
  • 19.    Phrases to Avoid “With all due respect ….” “I don’t understand why the Court ruled this way ….” “As you know, Your Honor ….”
  • 20.  General Rule - Must seek Court permission in order to make these submissions. See, LumbermensMut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624 (1st Dept. 1995); and, Kushaqua Estates Inc. v. Bonded Concrete Inc., 215 A.D.2d 993 (3RD Dept. 1995).  Best Practice – Draft and send to the Court when: ◦ Your adversary has raised a new argument in reply papers or at oral argument ◦ Your adversary has improperly served his motion papers ◦ A new opinion has been issued which has potential to impact the outcome of the motion being decided in your case.
  • 21.  Raising triablequestions of fact with a mortgage agreement 1. 2. 3. 4. Right of Entry & Duty to Make Repairs; Knowledge that Property was built Prior to 1978; Knowledge of Chipping Paint at Property; Knowledge of Health Hazards of Lead-Based Paint; and 5. Knowledge of Young Children at Property.
  • 22. • Raising triable questions of fact with a mortgage agreement 1. 2. 3. 4. Right of Entry & Duty to Make Repairs; Knowledge that Property was built Prior to 1978; Knowledge of Chipping Paint at Property; Knowledge of Health Hazards of Lead-Based Paint ; and 5. Knowledge of Young Children at Property.
  • 23. Zachary Woods Lipsitz&Ponterio LLP Zachary Woods Lipsitz&Ponterio, LLC 716.849.0701 zjwoods@lipsitzponterio.com