HB Litigation Conferences Lead Litigation 2013

1. November 14-15, 2013

4. 
I. Before you Begin Drafting
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II. Motion Drafting – Best and Worst Practices
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III. Drafting in Anticipation of an Appeal
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IV. Oral Argument
V. Pre and Post-Argument Submissions
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VI.
Summary Judgment Motions

5. 
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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

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

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

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)
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
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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)

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
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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. 
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
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.

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.

36. Zachary Woods
Lipsitz&Ponterio LLP
Zachary Woods
Lipsitz&Ponterio, LLC
716.849.0701
zjwoods@lipsitzponterio.com