4.
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
5.
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
6. 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!
7.
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
8.
9.
10. 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
11. 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
12.
13.
14.
15.
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
16.
Presentation of Case Law – “Worst Practices”
Over citing
Overusing parentheticals
Stretching the case law
17.
18.
19.
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
20.
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
21.
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)
22. 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)
23. 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)
24.
25.
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”
26.
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
27. 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
28.
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
29.
Phrases to Avoid
“With all due respect ….”
“I don’t understand why the Court ruled this
way ….”
“As you know, Your Honor ….”
30.
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.
31.
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.
32.
33.
34.
35. • 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.