Lead Litigation Conference 2013

November 14-15, 2013

Pretrial Motion Practice

Tips For Successful Motion Practice in New York’s Courts

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

Before You Begin Drafting

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

Best and Worst Practices

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!

Best and Worst Practices

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

Best and Worst Practices

Presentation of Evidence – “Best Practice”

Tell the Court a Story

Tell the Court why you are presenting each piece of evidence

Tell the Court whether any material inferences can or cannot be drawn from the evidence

Best and Worst PracticesPresentation 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

Best and Worst Practices

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

Best and Worst Practices

Presentation of Case Law – “Worst Practices” Over citing

Overusing parentheticals

Stretching the case law

Best and Worst Practices

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

Best and Worst Practices

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

Editing Your Motion Papers 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)

Drafting in Anticipation of the Appeal

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)

Drafting in Anticipation of the Appeal

Your argument is preserved when:(1) Your Attorney Affidavit contains a

discussion of all of the facts essential to make the argument; and

(2) 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)

Drafting in Anticipation of the Appeal Byrd v. Roneker, 90 A.D.3d 1648 (4th

Dept., 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”

Drafting in Anticipation of the Appeal

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

Oral Argument

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

Oral Argument

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

Oral Argument

Phrases to Avoid “With all due respect ….”

“I don’t understand why the Court ruled this way ….”

“As you know, Your Honor ….”

Pre and Post-Argument Submissions General Rule - Must seek Court permission

in order to make these submissions. See, Lumbermens Mut. 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.

Summary Judgment Motions Raising triable questions of fact with a

mortgage agreement

1. Right of Entry & Duty to Make Repairs;2. Knowledge that Property was built Prior to

1978;3. Knowledge of Chipping Paint at Property;4. Knowledge of Health Hazards of Lead-Based

Paint; and5. Knowledge of Young Children at Property.

Summary Judgment Motions• Raising triable questions of fact with a

mortgage agreement1. Right of Entry & Duty to Make Repairs;2. Knowledge that Property was built Prior to 1978;3. Knowledge of Chipping Paint at Property;4. Knowledge of Health Hazards of Lead-Based

Paint ; and5. Knowledge of Young Children at Property.

Speaker

Zachary WoodsLipsitz & Ponterio LLP

Zachary WoodsLipsitz & Ponterio, LLC716.849.0701zjwoods@lipsitzponterio.com

Questions