Chapter 14: Effective

Effective motion practice rests on two fundamental benchmarks: brevity and clarity — disciplined preparation, written submissions, and oral argument tailored to the burden of persuasion, the type of motion, and the role the advocate must play before judge, arbitrator, or administrative law judge.

Chapter 14

■ ■ ■

The speaker who does not strike oil in ten minutes should stop boring.

Mark Twain

If you want to win a case, paint the Judge a picture and keep it simple.

John W. Davis

§ 14.1 Introduction to Motion Practice

Anytime a party wants something, and the other side says no, there is a reason to bring a motion. This chapter focuses on efficiently preparing and effectively presenting motions to a judge in a litigation case.

§ 14.1.1 Brevity and Clarity

Two fundamental benchmarks of an effective motion presentation are brevity and clarity. The presentation’s length should correspond with the issues’ complexity. And the essential information needs to be communicated so it can be understood with a minimum of effort.

How a judge decides a motion often depends on how the attorneys present their positions through briefs and oral arguments. Initially, an attorney needs to plan how to provide motion information to the judge. An attorney can significantly improve the persuasive value of motion advocacy through complete and thorough planning. This preparation can be accomplished with help. Discussions with colleagues, clients, support staff, and others familiar with the case or issues should begin at an early stage. And LLMs can help transform excruciatingly convoluted arguments into presentations that are tight, brief, and clear.

Rules of procedure, case law, local rule requirements, the preferences of judges, custom, and tradition all affect the manner and content of in information and arguments presented. The advocates face many tactical decisions regarding how specific factual and legal issues can be best be communicated to the judge, as covered in this chapter.

§ 14.1.2 Arbitration and Administrative Case Motions

The use of motions is less frequent in arbitration and administrative law cases than in litigation, in large part because there is less of a need for or availability of discovery and there is ordinarily no need for a summary judgment ruling. But motions can be and are quite useful in arbitral and administrative cases. The applicable arbitration code of procedure and the administrative law regulations typically provide procedural remedies, which a party may obtain by way of a motion.

Many of the tactics and techniques in this chapter, while focused on litigation, also apply to motions brought in other forums. Arbitrators and administrative judges who review and decide motions will be influenced by the various approaches discussed in this chapter.

§ 14.1.3 Motion Considerations

Planning the presentation of a motion involves some preliminary considerations, including: the burden of persuasion, the type of motion, and the role of the advocate.

Burdens. The manner of presentation of a motion is influenced by allocation of the burden of persuasion. The movant has the burden to convince the court that the motion should be granted. The opposing party has the burden to rebut such arguments. The degree of the burden of persuasion and rebuttal depends on the specific motion. The fact that the opposing party does not have as significant a burden as the movant lulls some opposing lawyers into believing they need not be overly concerned with presentation—an often-inaccurate perception.

The movant may provide the judge with enough information to meet the burden of persuasion and the judge may expect the opposing party to present an equally compelling argument in rebuttal. The failure to present an effective opposition prompts many judges into ruling for the movant. Opposing attorneys need to design a written and oral presentation that provides sufficient reasons for the denial of the motion.

The party whose conduct necessitated the motion being brought (i.e., often the obstinate, obstreperous party) may have a greater burden than the moving party. For example, a party who seeks an order under Rule 37 to enforce a discovery request may have been forced to bring the motion because of the refusal of the other side to cooperate during discovery. Some motions result from tactical maneuvering, questionable conduct, or intransigent behavior of an opposing party, and the burden, in effect, may shift to them.

Types of Motions. The type of motion involved also affects the presentation. Whether the motion is routine or unusual or whether it is commonly granted or often denied will affect how both attorneys approach memo writing and oral argument. The party bringing an unusual motion or one that is seldom granted will have a more difficult task.

Role of the Advocate. The primary obligation of the attorney is to promote and preserve the best interests of the client (i.e., win). But counsel must balance this dominant role with the attorney’s vital role as an officer of the court. This role requires the lawyer to be candid and honest and to avoid unprofessional and discourteous behavior. An advocate can be assertive and persistent while also being respectful and restrained.

An advocate must also adopt a professional belief and interest in the case, believing in the motion, the client, and the relief sought. Further, the lawyer needs to perceive the motion as interesting and significant to approach it with a degree of enthusiasm. These affirmative perceptions of belief and attention must also be communicated to the judge who otherwise may be disinclined to rule in favor of a party whose lawyer seems disinterested in the outcome.

These roles ought not to result in taking an approach that is overly aggressive or demanding. An advocate should not overly dramatize or exaggerate the effect of a non-dispositive motion being denied or granted, as the case will continue. A judge will be well aware of the effect of a dispositive motion, and need not be overly reminded of its significance.

§ 14.1.4 Motion Themes

Written and oral presentation should include reasons to grant or deny the motion. The advocate needs to review these reasons and develop an overall theme that reflects these reasons. Every motion presentation needs a central and unifying theme around which the argument revolves. Many motions lend themselves to more than one theme, or to a main theme with subthemes. Counsel should limit the number of themes and subthemes so that the argument does not become confusing.

Themes vary from case to case and from motion to motion. A theme may reflect the primary issues, factors contained in a procedural rule, criteria established by case law, equitable facts that require relief, or other relevant factors. The theme or themes should be emphasized at strategic times throughout the motion presentation. Phrases or words that capture the meaning of the themes need to be selected and consistently used to highlight reasons why the motion should be granted or denied.

The issues that need resolution are usually contained in the rule, case, statute, or other source that underlies the motion. The attorney needs to identify these issues and fashion an argument that resolves the issues in a favorable way. An effective practice is to compose these issues employing the language of the rule, case, statute, or other source. Some lawyers use their own language and paraphrase the issues. The judge usually is more interested in what the legal source of the issue states than what the attorney believes the source to state. Sections 14.3 and 14.4 explain more about these issues in briefs and argument.

LLMs excel at storytelling, making them valuable tools for developing persuasive themes. GenAI can rapidly generate multiple thematic ideas, allowing attorneys to explore different angles before settling on themes that are most compelling. If an LLM’s initially suggested themes lack impact, then the tool can instantly suggest other alternatives. Once you identify the strongest themes, LLM-backed tools can then integrate them across your written and oral advocacy, reinforcing key arguments throughout a motion’s presentation.

Beyond generating themes, LLMs can also craft clear, memorable phrasing. Arguably the most effective phrase in the 1995 O.J. Simpson trial was: “If the glove doesn’t fit, you must acquit.” (Former football star Simpson was on trial for murder and gloves allegedly his at the crime scene were too small for his hand when he tried them on in open court. The defense closing argument emphasized the lack of fit with this memorable phrase; see https://en.wikipedia.org/wiki/Murder_trial_of_O._J._Simpson.)

LLMs can provide dozens or hundreds of similar catchphrases. GenAI can analyze your facts and applicable law provide the most “fitting” phrases. LLMs can then weave that theme throughout your briefs and arguments. After all, repetition legitimizes. Repetition legitimizes. Repetition. . . .

§ 14.2 Motion Advocacy

§ 14.2.1 Selecting Issues to Present

A motion argument consists of a series of points that an attorney asserts and explains, often including both factual and legal contentions. A point is an affirmative and positive statement of an issue that reflects how the lawyer believes the issue should be resolved. The design of a motion presentation involves the determination of the points to be argued to advance the goal of obtaining the relief sought.

Points that cover the relevant issues, explain essential information, and contain persuasive arguments should be included. Collateral, marginal, and tangential topics should be excluded. Deciding what to exclude is as important as the decision of what to include. Issues that are significant must be presented in the body of the brief. Courts have held that a reference to an issue in a footnote is insufficient to raise that matter before the court and that points made only in a footnote are forfeited.

The order in which the points are presented affects their persuasive impact. Considerations determining the best order are:

Which point is the most important? The factors established by a rule, decision, or statute elevate the importance of some points.

Which points are the strongest? These points deserve the most focus.

Which point should be made first? The common goals for the beginning of a written or oral presentation are:

To capture the attention of the reader or listener.
To create an impression that the merits of the position support the relief sought.
To establish a framework for a persuasive argument.
To prevent the reader or listener from becoming disillusioned.

How should the remaining points be ordered and which point should be made last? Points are often presented in a chronological or logical order. An inductive approach, from the specific to the general, or a deductive approach, from the general to the specific, may provide a logical structure. Reread Aristotle. The final point in a memo or oral argument should be designed to leave the judge with the conclusion that the remedy sought should be granted.

*What if a point is missed? *In oral arguments, you can anticipate (and hope) the judge will interrupt and ask questions, often about a point not raised or not clarified.

LLMs can serve as sounding boards, always-patient virtual colleagues helping you identify issues that are most persuasive. If the LLM has access to legal databases (e.g., cases, motions, orders), these tools filter out weaker or less-relevant points, surfacing the strongest. Advocates can quickly refine their focus, centering their motion on issues most likely to succeed.

GenAI can also help organize arguments, suggesting an effective order for presenting points, either inductively (specific to general) or deductively (general to specific). LLMs can refine phrasing, ensure clarity, and eliminate ambiguity. Some GenAI-backed tools can also simulate judicial questioning, helping anticipate overlooked points or weaknesses.

§ 14.2.2 Determining Method of Presentation

After the appropriate points are selected, the lawyer should consider whether and how a point should be made in a written document, during the oral argument, or in both. Some points are more effectively made orally than in writing, and vice versa. Some points are critical and require an explanation in both formats.

Not all jurisdictions allow a motion to be presented both ways. Some judges and courts restrict an oral presentation and have lawyers submit motions in writing only. These jurisdictions perceive that an oral argument is unnecessary to the proper determination of a motion and that time and expenses can be saved by not having a motion hearing. Attorneys facing these restrictions usually have an opportunity to submit a request to the court explaining why oral argument should be scheduled.

Other jurisdictions have established different options. Some courts issue a preliminary decision based on the written submissions and make the decision available to the attorneys by a telephone or digital recording or by email. Either attorney may request oral argument in an effort to change the mind of the judge.

In all situations, whether or not a jurisdiction imposes restrictions on a motion hearing, an attorney should consider whether oral argument is worth the time, expense, and effort. Usually, the answer to this question will be yes, most often a resounding yes, particularly by the movant who has the burden of persuasion. However, there are situations when oral argument may be appropriately waived, even by a movant. A motion may be simple and straightforward and not need an oral presentation. A motion may be more effectively presented through a written presentation.

There are alternatives to attorneys appearing in court to argue a motion. The most common option is a conference call by video or phone including the judge and opposing lawyers. Some courts provide a teleconference call by rule. Even if the rules are silent on this subject, most courts will consider a request for a conference call. A conference call permits the attorneys to present their positions and to answer questions by the judge and saves the lawyers travel and waiting time.

A remote video motion hearing that involves testimony or the submission of evidence may also involve the participation of a party or witnesses in a distant location. Counsel will need to properly prepare witnesses and arrange for the submission of exhibits. See § 14.4.7.

§ 14.2.3 Presenting the Facts

Several levels of facts may need explanation. There are those facts that gave rise to the litigation, facts that specifically relate to the motion, facts that have not been discovered or developed, and facts no one cares about. The precise facts the judge needs to know to determine a motion depend on the motion and the case. Facts may also be distinguished by their dispute status: some facts will be undisputed; some stipulated and admitted; and others disputed.

Facts may be categorized on the basis of their content. There are facts, inferences, opinions, conclusions, and other shades of factual information (including surmises, guesses, and gossip). An attorney in presenting information usually mixes these various categories, omitting the latter types. Not all information that falls within these categories may be appropriate for a motion hearing. True facts, reasonable inferences, opinions based on rational perspectives, and realistic conclusions, are examples of proper information. Exaggeration or fabrication is obviously inappropriate.

Facts may be presented in either of two primary ways. The beginning of a written brief or oral argument may include an explanation of the facts. Or the facts may be intermittently explained in the body of the brief or argument. The nature of the facts and their importance to the motion affect their placement.

If the facts are simple, a concise chronological explanation at the beginning of the presentation will suffice. If the facts are complex, an outline of the basic facts may be initially explained followed with a more detailed description during the presentation. If the motion presents a legal issue for which the facts are not critical, their explanation may be minimal. If the motion presents mixed issues of fact and law, the relevant facts need to appear throughout the presentation. The description of facts should be done selectively and thoughtfully to avoid unnecessary repetition and to provide the court with all essential factual information.

Facts are presented at a motion hearing usually by the submission of affidavits/declarations or taking live testimony. Affidavits provide an efficient and inexpensive means of affording the judge with necessary information. Written affidavits should either accompany the moving papers or be submitted a reasonable time before the motion hearing. The presentation of live testimony through the direct and cross-examination of witnesses and the introduction of exhibits also provides relevant facts. These presentations may occur in person in court or through teleconferencing. See § 14.7.

Other modes of factual presentation include stipulations of facts, deposition transcripts, interrogatory answers, and responses to requests for admission. A party relying on these sources needs either to affirmatively offer this information during the motion hearing or refer the judge to the documents during oral argument. The judge may also accept facts through judicial notice of information that is generally known or is capable of ready determination by accurate sources. A court may also consider general factual information about the case. The type of motion brought determines the required or preferred means of presentation.

The movant typically has the responsibility to initially explain the factual basis of the motion to the judge. The opposing party may also need to address the facts. If the movant’s explanation is inaccurate, distorted, incomplete, or otherwise defective, then the opposing party will need to correct or add facts in a memo or during oral argument.

Factual descriptions should be objective, accurate, organized, narrative, selective, material, and descriptive. If you can describe facts like that, you are a natural story-teller.

Objective. The facts should be presented in a way that reflects an objective and historical explanation of what happened and that excludes subjective characterizations or interpretations of events. A judge is more likely to believe and trust an attorney who explains facts in an objective manner rather than in a slanted, biased fashion. Conclusions and judgments concerning the meaning of facts should be reserved for the argument portion of the oral presentation.
Accurate. It is obviously impermissible for an attorney to misrepresent facts. All facts, good and bad, supportive or harmful, strong or weak, must be presented in a straightforward manner. Misstating the facts is unethical, unprofessional, and a very ineffective tactic.
Organized. The most common methods to structure the explanation of facts include the chronological and topical structures. Simple facts may be more readily explained in a chronological sequence; complex facts may be better described in a topical order.
Narrative. Whichever structure is employed, the facts should be explained in a narrative manner that portrays a story in an interesting and informative way.
Selective. Facts should be selected that emphasize the strengths of a party’s position.
Material. Only those facts that are material to the motion should be explained.
Descriptive. The facts should be presented in a way so that the reader or listener is reliving the events as much as possible. Ideally, you want the judge to see, hear, and feel what happened.

A major problem with factual explanations occurs when an attorney improperly provides the court with facts that do not appear in an affidavit, in testimony or an exhibit, in the file, or on the record. The opposing lawyer should resist the use of such information by pointing out to the judge the inappropriate source of the information.

A blurred line exists in some motions in trying to determine if the facts must be specifically introduced or if the attorney can informally introduce the facts by summarizing them during oral argument. An attorney cannot properly testify concerning information (although many try), but an attorney can refer to the facts that support the position asserted in a motion and to their source.

§ 14.2.4 Presenting the Law

Many motions revolve around issues of law, and the bulk of an argument may involve legal explanations. Legal arguments can be divided into several categories. The movant may request the judge to grant the motion because:

Direct, established legal precedent exists.
Precedent from other jurisdictions supports a favorable ruling.
Precedent from another area of the law in the motion jurisdiction may be applied by analogy.
No precedent exists and the case represents a matter of first impression.
Legislative history dictates a certain result.
Recognized rules of statutory construction support a specific interpretation.
Agency rulings support a position.
The judge can do anything the judge wants.

Legal arguments may also be intertwined with factual arguments in which the movant asks the judge for relief because:

The facts match previous cases in which identical or similar relief was provided.
The facts can be distinguished from previous cases in which relief was denied.
Generally known or available statistical data support the movant’s conclusion.

A motion presentation should include an explanation of supporting cases, statutes, rules, regulations, constitutional provisions, secondary authorities, and other persuasive legal sources such as Mad magazine. The judge will be influenced by precise legal authorities and analyses and not by the lawyer’s personal or professional opinion. Legal authorities should be selected that have the most precedential value.

Court decisions from appellate courts within the same jurisdiction as the motion court are obviously most applicable and persuasive. State judges are most responsive to decisions from their appellate courts. Federal district court judges are most persuaded by appellate decisions from their circuit. Some judicial decisions from outside the jurisdiction of the motion court may also be persuasive. The following factors dictate the degree of persuasiveness:

The Status of the Court. A state court judge will be influenced more by a supreme court decision of another state than a state intermediate appellate court decision. A federal court judge will be influenced more by a federal circuit court opinion than a district court judge’s decision. State court judges will be more persuaded by a United States Supreme Court decision rather than another state supreme court. Federal judges will be more persuaded by state supreme court decisions more than federal court decisions on matters that relate to state law issues. Justices of the Peace will be influenced by lawyers who contributed to their campaigns.
The Similarities Between the Issues. If the motion involves the identical law, rules, or procedures adopted in another jurisdiction, how the courts of that jurisdiction interpreted and applied such provisions may be influential.
The Age of the Precedent. An older decision may be influential in a case dealing with traditional matters. A newer decision may be more influential in a case that deals with modern issues.
The Basis for the Precedent. Precedent from other jurisdictions will be persuasive if the reasoning of the courts in adopting the precedent matches similar public or private interests in the jurisdiction of the motion.
The Location of the Court. Decisions from neighboring courts will often be more influential than decisions from distant courts, except in Alaska and Hawaii.
The Reputation of the Judge. The greater the reputation of the judge who issued the decision, the greater its impact.
The Type of Case That Led to the Decision. The impact of a decision is influenced by whether it is a leading case in the area, a case of first impression, an unusual case, a case that represents a moderate position, or another type of case.
The Philosophy of the Court and Judge. The closer the philosophy of a court or a judge with the courts in the motion jurisdiction the more weight that precedent will have.

Some of these considerations also apply to the impact that legislative enactments from outside the court’s jurisdiction have on a motion.

The manner of presenting legal explanations will be critical to the judge’s understanding and acceptance of the legal arguments. Common problems that reduce the effectiveness of legal explanations include:

Inaccurate Descriptions. Advocates must avoid arguments that inaccurately describe the status of the law. The failure of lawyers to fully prepare for a hearing often account for this problem.
Vague Explanations. Advocates should not present a vague or ambiguous explanation or fail to clarify the status of the law.
Incomplete Descriptions. Poor arguments may contain partially correct but incomplete statements of the law.
Unethical Presentations. Ethical regulations require lawyers to disclose controlling legal precedent that resolve an issue.
Rambling Dissertations. The judge usually knows some or most aspects of the applicable law and general treatise-like dissertations are inappropriate.
Unnecessary Explanations. A memorandum or brief may be more effective and efficient to explain a legal position. Matters adequately addressed in a memo need not be repeated orally but can be referred to by location in the memo
Long Quotes. Arguments that contain lengthy case quotations usually are ineffective. Judges usually are more interested in an application of the case quotes rather than the reading of them.
Specific Citations. The reading of case citations, the spelling of names, and the repeating of numbers and pages only unduly lengthen the argument. It is more efficient for the attorney to provide the citations to the judge briefly or in the brief.
Sounding Like a Law Professor. Some lawyers remain enamored with their law school experience and retain questionable traits. Fortunately, most of these lawyers seek and obtain counseling.

§ 14.2.5 Effective Use of Facts and Law

The nature of the motion will determine whether the law or the facts will predominate as controlling factors. The most effective arguments will often be a mixture of factual and legal contentions. The usefulness of a fact will often depend on its relationship with the controlling law. The effectiveness of precedent will depend on the underlying facts that support the legal contentions.

The advocate must present to the court in a brief and during oral argument reasoned analysis why the position of the attorney should be accepted by the judge. Some motions will present matters that have no direct authority. In these situations, the task of the advocate is to explain what reasons support a ruling by the judge in favor of the advocate even though no authority exists.

Equity and Emotion. Additional factors beyond the law and facts also affect the manner of presentation of the oral argument. Positions that involve equitable matters and humanistic dimensions can also influence the decision-making process. Judges may rest their decision not only on matters in the head but also on matters of the heart.

Choice of Language. Language should be assertive and expressive but not biased or excessive in tone. Words and phrases that overstate a position, exaggerate a fact, or stretch the law undermine the persuasiveness of a point. The use of such language creates an impression that the attorney’s written and oral statements are unreliable, causing a judge to view the entire presentation with skepticism.

It is not easy for advocates to recognize the hyperbole of their statements, particularly after they read their advertising copy. An attorney may employ words and phrases that the attorney perceives to be correct and deserving but that the opposing lawyers may view as insulting and demeaning, and the judge may view as unfair and unnecessary. Unrestrained statements occur most often with the use of adjectives and adverbs. Words such as obvious, clear, ridiculous, inane, and similar words constitute excessive language.

Rhetorical Questions. A traditional argument technique is the rhetorical question. An attorney may ask questions the answers to which the attorney believes to be obvious and supportive of the position asserted. This technique may be ineffective because the answers may not be obvious, or because the answers may be so obvious there is no need to ask a question, or because it is the role of the judge and not the attorney to ask questions. Rhetorical questions can be used effectively if asked sparingly, at the appropriate time, and without making the attorney sound like a Jeopardy contestant.

Candor. It is critical for an attorney during the presentation of an argument to be candid with the court. Not all the facts in a case may support the moving party’s position; a movant should not inappropriately castigate the facts that weaken a position. The law may not clearly support the position of the moving party; a movant should not pretend precedent to be clear unless it is so supportive. Where the court has discretion to grant or deny a motion, a movant should not argue that the court has only one possible option. Ethical concerns also restrict the content of written and oral presentations. Section 12.5 explores the impact of these various ethical limitations.

Opposition Weaknesses. A motion argument needs to describe the weaknesses in the other side’s position. The movant may need to anticipate the positions of the other side and expose their weaknesses during the main argument, or the movant during rebuttal may later counter those points. Overly defensive comments about the other side’s position should be avoided. An argument appears weak if it only primarily attacks the other side.

Personalization of an Argument. An attorney should avoid making an argument containing personal views. The judge is not interested in the lawyer’s personal opinion, unless, of course, the lawyer is right. In arguments involving issues the resolution of which are unclear, a judge may be influenced by the professional opinion of an attorney. If a judge recognizes that the attorney understands the law in the area and has offered a reasonable explanation as it applies to the case, or if the judge has faith in the integrity of the lawyer and accepts the facts as explained by the lawyer, opinions by counsel may have an impact.

An attorney should always avoid interjecting personal comments about the opposing party, counsel, or judge. Characterizations critical of the integrity, behavior, and intelligence of individuals are usually unprofessional, discourteous, and ineffective, even if done only in retaliation. Such outbursts may seem appropriate and feel good at the time, but they will only make the violator the brunt of the judge’s conversation with colleagues the following day.

Collateral Considerations. Most motions do not resolve the litigation but only resolve one facet of the case. This reality may prompt some judges to consciously or unconsciously resolve a motion in favor of a party for reasons beyond the merits of the motion. Some judges will be inclined to use their ruling to steer the case in a certain direction or to place the losing party at a disadvantage, forcing that party to react in a certain way. These judges usually do not publicize their thinking but use appropriate law to support a result they intend. The judges justify their rulings based on pragmatic considerations.

Economic Factors. The manner of presentation is affected by the resources of the client. Whether the client can afford to pay for the attorney’s fees and costs to pursue or oppose a motion often dictates how an attorney proceeds. A moving lawyer has an obligation in bringing a motion to have available sufficient client resources to support the granting of the motion. An opposing attorney may not be able to fully resist a motion because a client cannot afford to pay for such resistance. These situations present difficult issues of client representation, ethical concerns, and motion practice. The influence of economic considerations needs to be addressed with a client before a motion is brought or opposed.

Pragmatic Concerns. Motion advocacy is only effective if attorneys take into consideration the realities of motion practice. Many approaches that appear to be persuasive in the abstract will have little impact when applied to real situations. Many lawyers misconstrue the usefulness of certain strategies and tactics. These lawyers fail to consider the time judges have available, incorrectly believe judges will not be distracted, improperly assume that judges will afford their cases special attention, inaccurately believe that their motions present interesting questions, and ignore the perspective of judges.

*Values and Principles. *The content of motion presentations should reflect values and principles important to the judge. The more an argument matches the beliefs and norms of the judge, the more likely the judge will accept the argument as compelling. It is less likely judges will make a decision that conflicts with their values and beliefs. If LLM-backed tools have access to legal databases (e.g., orders), these tools can assess how judges have ruled in the past, helping lawyers anticipate judges’ equitable or emotional considerations.

Everything a lawyer does involves applying facts to law—or, if you prefer, applying law to facts. LLMs can do both very well. GenAI tools can quickly analyze case law to identify relevant precedent and determine how factual distinctions affect legal outcomes. They can also help lawyers construct persuasive arguments without any direct authority, suggesting analogous cases, reasoning by policy, or drawing from related areas of law.

Beyond legal and factual analysis, GenAI can help refine the way lawyers present their arguments. AI-assisted editing tools can optimize tone, highlight hyperbole, and ensure that language remains assertive but professional. LLM-backed tools can help ensure that facts persuasively align with controlling or analogous law.

§ 14.2.6 Differences from

Appellate Advocacy

Many of the same considerations that apply to effective appellate advocacy also apply to persuasive motion advocacy. But not all. Motion advocacy at trial differs from appellate advocacy in several respects:

Usually only one judge decides a motion instead of a panel or an entire court.
Issues on appeal typically involve more vital matters than many motions.
The impact of a ruling on a nondispositive motion is usually much less significant than a decision on an appeal.
The trial record and transcript of a case establishes the set facts for an appeal. A motion often has several alternative ways for facts to be introduced and considered.
A motion memorandum is often substantially shorter than an appellate brief.
Detailed court rules establish strict requirements for the format and structure of an appellate brief.
Issues briefed and argued on appeal are limited by the record. Issues not raised before the trial court are generally not considered on appeal.
The scope of review limits the rulings of an appellate court, while trial judges often have reasonable or broad discretion to grant or deny a motion.
Many motion oral arguments occur in an informal atmosphere or in chambers.
Some appellate arguments appear in the media, whereas notable motion arguments may only appear in dreams.

These differences determine whether or not an approach effective on the appellate level is likewise useful in a motion setting.

§ 14.3 Briefs and Memoranda

§ 14.3.1 Memorandum Contents

A motion memorandum may contain various types of relevant information. Commonly, a memorandum includes descriptions of the facts of the case intermingled with the applicable law. Some judges and lawyers differentiate between a brief and a memorandum, defining a brief as a lengthy memorandum and a memo as a shorter, less inclusive document. This book uses the two terms interchangeably, and the labels are widely viewed as synonymous, or nearly so. A brief is a memo is a memorandum.

A memorandum may be required by court rule, requested by the judge, or voluntarily submitted by a lawyer, as previously described. It is advisable for an attorney in seeking a ruling from a judge to provide some written legal documentation supporting the relief sought, as long as the attorney knows how to write. Attorneys who oppose motions should almost always submit memoranda.

Memoranda take several forms. A motion memorandum may be:

A lengthy brief consisting of several separate sections.
A moderate length memo.
A short outline of points and authorities.
Paper or electronic copies of relevant rules, cases, and statutes.

There is no set or established format for memoranda, unless mandated by the applicable court rules. A motion brief should be structured in a way that most effectively addresses the issues and meets the needs of the judge. A short memo may not need any elaborate structure. The longer the memo, the more important the structure becomes to ensure the clarity and persuasive value of the written argument. The length of a brief is often dictated by court rule or customary practice.

Many motions can be adequately supported with an outline listing the major points and a summary of the citations of cases, statutes, and rules that support the points. The format for an outline can be as varied and flexible as the needs of the judge to receive the necessary information. This format is appropriate for simple motions and for situations that do not justify the expenses, time, and effort necessary for a memorandum. Another efficient way to provide a judge with the relevant law is to provide all or part of a rule, decision, or statute.

A motion memorandum may consist of some or all of the following parts:

Caption and title.
Introductory explanation.
A description of the facts.
A statement of the issues.
Legal analysis and argument.
A conclusion explaining the relief sought.
Footnotes.
Appendices.

Additional sections for a brief may also include a Table of Contents and a Table of Authorities. The parts and their sequence may vary depending on the scope and length of a memo, the applicable format rules, and the practice in a jurisdiction. An LLM can assist with the format and content of a memorandum, as explained further in this section.

The length of a memo depends on what needs to be written and the verbosity of the attorney. Maximum page limits commonly imposed on appellate briefs may or may not exist for motion memos. The primary reason court rules do not specify precise page limits is because the practice is such that attorneys typically submit short memos without having to be told, just like law school assignments. The expenses and time necessary to produce a substantial memo is not justified unless a motion involves significant issues similar to appellate issues. Some jurisdictions not only impose format and page limits but also specify page size, paper quality, type size, and other details. If in doubt, erring on the side of brevity is usually the better judgment.

Caption and Title. The first or cover page of the memo should contain the caption (title of court, identification of parties, docket number) in the upper part of the page along with a title of the memo in support of or in opposition to the motion. Preliminary information may also include the names and addresses of counsel, a statement indicating whether oral argument is requested, and the date of the memo or the phase of the moon.

Introductory Explanation. The prefatory statements of a brief may include a variety of information. The opening statement may:

Describe the parties.
Concisely explain the case.
Briefly describe the status of the litigation.
Explain the nature of the motion.
State the jurisdictional basis for the court.
Summarize the reasons supportive of the motion.
Explain the relief sought.
Unintentionally convince the judge that the other side should clearly prevail.

An introductory statement should be concise, i.e., a paragraph or a page in length. Its purpose is to provide the judge with an overview of the legal situation and an understanding of generally what is requested, why it is requested, and what relief is sought. It may be advisable for a brief to include a summary of the issues, the points that will be made, or an outline of the positions that will be asserted. The introduction should not become overly lengthy or repetitive of other parts of the memo.

Presentation of the Facts. The effective presentation of facts is critically important in all briefs, as emphasized previously. The attorney, in drafting a recitation of the facts in a memo, often needs to indicate the source of the facts, that is, what document, witness, affidavit, discovery response, or testimony supplies the facts. An explanation of facts in an appellate brief routinely includes a reference to the page number of the record. This easy reference may not be available in a motion presentation, but it may be critical for the judge to know what support and source there is for the factual statements presented.

The placement of the facts in the beginning of a brief provides an opportunity to grab the attention of the judge. Explaining relevant facts in an interesting style can highlight the human dynamics of the motion. Usually, a compelling narrative story employing descriptive and impact words is effective.

Statements of Issues. A statement of an issue is a question the answer to which resolves all or part of a ruling on the motion. Relevant issues presented in a motion brief serve several purposes: they present the questions raised by the motion; they provide the judge with a concise explanation of what has to be decided; and they provide an opportunity to subtly influence the judge.

The following guidelines help to compose effective statements:

A limited number of issues should be selected. These questions should be distilled to major, critical issues. Usually this results in a few or, at the most, several issues. Complex motions may involve more issues. The statement of issues can be structured to include both major issues and minor sub-issues to distinguish between critical and less important issues.
An issue should not present a self-evident proposition. No information is conveyed and little persuasive impact is made by stating an issue the answer to which is obvious. A question such as “Should the complaint be dismissed because the plaintiff failed to comply with the proper rules?” says nothing and requires an affirmative answer regardless of the facts of the case.
An issue should combine a legal proposition with factual information. A question that contains a general abstract proposition without reference to the specifics of a case serves little purpose.
An issue should be informative. It should not merely state a conclusion but should include some information that focuses on the subject matter of the motion.
A question should be concise and not unnecessarily lengthy. A question should not be so concise that it omits important concepts.
The question should comprise a complete sentence. The use of the common preface “whether” will create a phrase but not a grammatically correct question.
The question should be readily understandable on the first reading.
The issue should be reasonably acceptable to the opposing lawyer. The question should not be designed to be self-serving but should objectively reflect what a judge must decide.
The issue should be drafted in a persuasive way. The lawyer as advocate should attempt to phrase a question that places an issue in as favorable a position as possible. A judge after reading the issue should perceive some justification for answering the question in favor of the drafter.
The issue should not cause the judge to erupt with an uncontrollable fit of laughter.

It may not be necessary to include a separate statement of issues section in a brief. The questions may be initially presented in the body of the argument immediately followed by a legal explanation. A memorandum may not need any separation between a question and the written answer provided by the lawyer. It may be more effective to use the “argument” section of the memo to employ points that explain conclusions in an affirmative manner rather than as questions.

The appropriate composition of an issue can be achieved through drafting and redrafting. An attorney needs to edit drafts to create a favorable issue. The following examples have been redrafted to obtain a more effective description of an issue:

Instead of: Whether the defendant failed to respond to discovery requests by the plaintiff justifying a Rule 37 sanction.

Rather: When a Defendant fails to respond to the Plaintiff’s Interrogatories and Requests for Production of Documents, should a Court dismiss the Defendant’s Counterclaim under the authority of Rule 37?

Instead of: Is it appropriate for this Court to permit Plaintiff to file an amended complaint at this stage of the proceeding pursuant to Rule 15.

Rather: Should this Court under Rule 15 permit the Plaintiff to amend paragraph 3 of the Complaint to conform the pleadings to the evidence?

Argument. The argument constitutes the main portion of the brief. Its ultimate purpose is to demonstrate that favorable legal precedent and the facts support the asserted position. The overall approach to be taken in a legal argument is to argue the propriety of the relief sought. Section 14.2 has discussed in general the manner of effectively presenting this information. This section will consider additional factors applicable to a written brief.

The legal argument is usually organized according to the points that need to be made. A typical organizational structure asserts a point and follows it with a narrative explanation and analysis. The points selected for a brief usually reflect the issues presented by the motion. Points are typically phrased as affirmative statements of the questions and are placed as headings for the parts of the legal argument.

A memo can be made easier to understand if it visually looks organized. Headings and subheadings that reflect the points and subpoints assist in creating a well-organized structure. Sections of a memo should be separated into divisions or subdivisions. Numbers, letters, spacing, capitals, underlining, italics, boldface, and other devices may also be used to provide a visual structure.

The points and argument should be sequenced in an orderly and personal manner. The rules, decisions, or statutes may detail the order of the points to be argued. For example, Federal Rule 23 establishes four initial factors that need to be addressed in determining the propriety of a class action. Another effective sequence is to order the points from most significant to least significant.

Transitions should be employed to connect the separate parts of the argument. These transitions demonstrate the relationships between points and strengthen the cumulative effect of the entire brief. The type of transition depends on the sequence of the argument. A short paragraph transition may be necessary to bridge two major arguments. A sentence transition may be sufficient to connect some points.

It may be desirable for lengthy briefs to draft the initial paragraph of a section as an introductory paragraph that summarizes the assertions made in that section. A prefatory paragraph may make that section of the legal argument more comprehensible. Some appellate courts require the inclusion of a “Summary of Argument” prior to the argument. A summary paragraph should not be lengthy nor merely repetitive of the argument. The following examples demonstrate the difference between poorly drafted points and edited improved drafts:

Instead of: An order declaring that the applicant be deemed an appropriate intervenor in this action should be issued by the Court.

Rather: Applicant has a right to intervene under Rule 24(a) because applicant has a substantial interest in the subject matter of this case.

Instead of: This Court must vacate the previous judgment entered in this case.

Rather: The ineffective method of service in this case constitutes a clerical error under Rule 60(a) permitting the default judgment entered against the defendant to be vacated.

The legal argument needs to include those facts applicable to the law presented. These facts may need to be interpreted as well as described. The advocate may draw reasonable inferences, comment on the meaning of specific information, and argue the effect the facts have on the law.

Legal Sources. The most direct and applicable legal source should obviously be used as a source and citation. Direct sources such as cases, statutes, rules, regulations, and opinions by the judge should be the primary sources and citations contained in a memo. The weight afforded secondary sources, such as treatises, encyclopedias, articles, canned briefs, and horoscopes will vary. If a jurisdiction has adopted the analysis or conclusions of a secondary source, the weight may be persuasive. The preference, though, should be to include a direct citation that supports the proposition in the secondary source. Some non-direct sources are particularly useful in providing a historical explanation of a law, in summarizing a legal development, or in providing a survey of an area of the law.

Legal Descriptions. The court decisions contained in the written argument may be described in several alternative ways including:

A detailed explanation of the facts and the holding of the case.
A summary explanation of the holding of the case.
The inclusion of quotations from the case.
A historical description of the decisions preceding the case.
An analysis of the public policy and other reasons underlying the decision.
A reference to the court or judge who decided the case.
A summary of commentaries about the case from legal articles or other cases.
The citation of a case following a statement of law it supports.
A photo or Facebook entry of the judge who wrote the opinion.

These alternatives also reflect, with some modifications, ways to describe statutory and regulatory law. The extent of a description of legal precedent depends on the importance of the source of law to the argument. The attorney should provide the judge with sufficient information about a source of law to permit the judge to appreciate and evaluate the significance and effect of the case, statute, or rule. The more important the precedent the more detailed and elaborate an explanation can be.

The use of quotations from a case or other legal source is effective if properly presented and not fabricated. A quotation must be accompanied by an exact cite to its source. A quote without any reference to the facts or holding of a case is usually ineffective. A quote will usually need to be accompanied by information about the source that places the quote in perspective. Some applicable major cases, statutes, or rules may be well known in a specific case that such an explanation is unnecessary.

Exact language from a court decision or other legal source can be very persuasive and should be used in many situations instead of paraphrasing a decision. Attorneys should never rely on headnote summaries, since they are tools for locating law and not the law itself. Lengthy quotations should be limited. A judge will usually be more interested (or amused) in a lawyer’s professional analysis and less interested in reading a long quote. A case, statute, or rule that is critical and that deserves a lengthy quotation should probably be read by the judge in its entirety. The careful selection of quotations provides a proper balance of precise information. Numerous quotations should also be limited.

Citations. The source of law relied on in a brief must contain a proper citation. A uniform system for citation of legal authorities and publications (“The Bluebook”) exists and is widely accepted and extensively used. Citations should usually conform to this preferred method contained in the Bluebook.

There may be reasons why a prescribed form should not be used. The local practice or custom of a jurisdiction should take precedence over the standard form. The use of an alternative citation form should also be employed if that alternative is a more understandable way to communicate the source of the law to the judge.

Signals or abbreviations should not be improperly used in a motion brief. “Supra” refers to previous citations; “infra” refers the reader to a subsequent source or point. These signals should be avoided because they interrupt the train of thought of the reader and require the reader to take extra time to locate the other cite. “See generally,” “see also,” and “C note” refer to general background material or music that is usually not useful or persuasive information for a motion. Some signals are designed to designate the type of authority contained in a citation. “See” refers to basic source materials that support the proposition. “But see” or “contra” refers to contradictory authority.

Some signals will be unfamiliar to the reader of a memo. The exact meaning of signals may be clear to a law review editor but may not be clear to a judge or opposing lawyer. An explanation of the holding of a case may be more useful than a standard signal. Citations will be most informative if they are used consistently throughout a memo, if their abbreviated description is understandable, and if they are accurately cited, including a reference to the page of the legal proposition.

Citations should be made in the least intrusive manner possible. The placement of citations may disrupt the information intended to be conveyed. A full case name and complete citation, when placed in the middle of a sentence or paragraph, may cause some confusion. It may be more effective to place citations at the beginning or ending of a topical discussion or to include a case name in a sentence and the case citation after the sentence or in a footnote.

Citation of multiple authorities to support a proposition of law should usually be avoided. Legal sources that reflect the most recent and authoritative source will be more persuasive than a series of miscellaneous citations. Some lawyers include a list of “string” citations to bolster a legal proposition. A judge will usually prefer to be advised of the controlling case in a jurisdiction, not a list of cases. A listing may be appropriate in certain situations to show the historical nature of a proposition or its acceptance by many jurisdictions.

The order of citations, when more than one is legitimately used, depends on the status of the court and the date of the decision. The highest court decision that establishes the proposition must go first. That is, federal decisions should be placed in a sequence with the United States Supreme Court cases followed by court of appeals decisions followed by district court opinions. And state court cases should be placed in a sequence with supreme court opinions, followed by appellate court cases, then by lower court decisions. More than one court decision from the same tier of courts or from the same court must be ordered by date with the most recent decisions placed before older decisions.

Conclusion of Memorandum. A conclusion may serve several purposes. It provides an opportunity for counsel to:

Restate the themes of the motion.
Clarify the specific relief requested.
Summarize major issues and points.
Include a reference to a matter not included in a previous part of the memorandum, such as equitable considerations.
Beg for victory.

The conclusion should be concise and direct. A conclusion should not repeat what has been stated previously but should highlight some matters in a final attempt to persuade the judge to grant the client the relief sought. A short memo may require nothing more than a one or two sentence conclusion or no concluding statement. A paragraph conclusion will be more appropriate for a lengthier brief.

Footnotes. Footnotes, if permitted, can be an effective means to provide information about legal citations, supplemental facts, and supporting material. The proper use of footnotes permits an attorney to support a position without disrupting the flow of the narrative presentation. Propositions can be analyzed without having to include citations in the text. Footnotes also provide a location for the inclusion of collateral information, quotations, or the attorney’s résumé. Footnotes should be located or begin on the same pages as the textual statement. It is inconvenient and awkward for a reader to check endnotes located at the end of the brief.

Some limitations should be followed in employing footnotes. Substantive information should not be placed in a footnote if it provides direct or significant support for a statement. Footnotes should be reserved for secondary information. Footnotes should also not be overdone because many judges will not thoroughly read comments in a footnote. They reason that important comments should be in the text.

Appendix. Some information may be effectively disclosed in an appendix, if permitted and appropriate. Information may be placed in an appendix because it is too lengthy to be included in the text or because it is of secondary significance. Relevant statements, rules, regulations, and other materials and documents may need to be reproduced in whole or in part if the determination of some issues requires their review and study. Examples of information that may be included in an appendix are:

Copies of entire or partial cases, statutes, or rules.
Affidavits that contain factual information, although these usually will be attached to a motion or submitted separately.
Copies of pleadings, discovery requests, discovery responses, or other file documents.
Certified legal cartoons.

These materials will be included for the convenience of the judge and opposing lawyer and for their persuasive value. Attaching these documents to the memorandum makes the task of the judge that much easier, creates an impression that the submitting party is knowledgeable, and increases the chance that the judge will review all relevant information.

If advocates provide LLMs with an outline, as listed above, then GenAI tools can generate a well-organized memorandum that adheres to that structure. Whether drafting a short motion memo or a lengthy appellate brief, LLMs can help ensure that the document follows jurisdiction-specific rules, uses proper headings, and maintains logical organization. By using LLMs to help complete this structural framework, lawyers can focus more on refining legal arguments than on formatting.

LLMs can also integrate facts into each section of a memorandum, ensuring factual allegations align with supporting evidence. AI can extract relevant details from affidavits, discovery responses, and prior court filings, placing them in the appropriate sections. Beyond fact integration, LLMs that have access to legal databases can expedite legal research by identifying controlling authority, applying your facts to key precedents, and if on-point caselaw is lacking, suggesting persuasive analogies.

§ 14.3.2 Opposition Memoranda

A written response to the facts, issues, and arguments asserted by the opposing lawyer may be critical in obtaining relief or preventing the court from issuing a premature order. A written brief may create an impression with the judge that the other side’s position is accurate and convincing unless countered with an equally effective reply memo. Failure to respond to a brief may also suggest to the judge that the opposing attorney believes that the positions asserted by the other side are proper and appropriate or that the attorney cannot read. An opposing memo or reply brief should not be automatically prepared. Some positions deserve no rebuttal; others may be rebutted adequately during oral argument.

An effective responsive brief contains an approach describing affirmative reasons that support the position of the opposing party and arguments directly responding to the positions asserted by the other side. The explanations and arguments should be positive statements and not just defensive or negative comments. An attorney planning a responsive memo must initially analyze the other side’s brief to determine which arguments need to be rebutted in writing. This review of the other’s side statements should focus on revealing weaknesses and mistakes including the following errors:

Factual misstatements or omissions.
Legal errors, such as incorrect descriptions or inaccurate citations.
Inadequately supported factual or legal conclusions.
Excessive or inaccurate language.
Improper analysis of the facts or the law.
Inappropriate issues or points.
Illogical arguments.
Inconsistent positions.
Concessions.
Dropped fly balls.

The order in which the responsive arguments should be made will depend on which order appears to be the most effective. An obvious order is the sequence in which the arguments appear in the other side’s memo. Another order is to list the rebuttal points from the strongest to the weakest. Still another order is to weave the rebuttal points in with the arguments advanced by the drafting attorney. Whatever order is employed and whether the rebuttal arguments should appear in a separate section of the brief or mixed with other arguments depends on the favorable impact the order will have on the judge.

LLMs can expedite responsive briefs by analyzing opposing arguments, identifying weaknesses, and structuring persuasive rebuttals. AI tools can detect the other side’s factual misstatements, legal errors, and inconsistencies. Rather than just providing defensive responses, GenAI can also suggest affirmative counterarguments, reframing the issue.

By organizing rebuttal sequences, LLMs can help advocates ensure logical coherence and maximize persuasive impact. Additionally, AI-driven legal research can uncover overlooked precedent or statutory provisions, allowing attorneys to craft concise, compelling, and well-supported rebuttals.

§ 14.3.3 Effective Brief Writing

The following suggestions are helpful in drafting a clear and understandable brief that effectively blends the law, facts, and arguments:

Be specific and concrete. Avoid being vague and gravel.
Use simple sentences. Write in a straightforward manner. (In this regard, Hemingway is a better role model than Faulkner.)
Untangle complex or run-on sentences. Divide a long sentence into two or more sentences; subdivide separate ideas into independent sentences; avoid the use of lengthy clauses; do not write like this.
Use simple and common words. Unusual or unknown words may confuse and slow down the reader, although they will increase dictionary usage in the jurisdiction.
Employ positive statements. Affirmative statements make more of an impact than neutral or negative statements.
Avoid unnecessary legalese. Words that too frequently appear in legal documents should be excluded, such as “whereas,” “hereafter,” and “them dummies.”
Selectively use foreign language words and phrases. Some Latin and other foreign terms have commonly understood meanings. Outdated or unusual phrases will only confuse readers unless they have taught classical language.
Avoid showing off. Do not use words merely to impress the judge or opposing lawyer or to unnecessarily require them to ask a law clerk the meaning of a word.
Use the active voice (unlike parts of this Chapter). The subject of a sentence, not the object, should perform the act described by the verb.
Use the passive voice occasionally and for variety. Passive voice may present a less forceful but persuasive explanation.
Use proper verb tenses and number. Do not mix verb tenses in the same sentence or paragraph. Do not use a plural or married verb with a singular noun clause or phrase.
Match the noun with the correct possessive adjective. A singular noun requires a singular possessive adjective; a plural noun requires a plural possessive adjective. Not “The corporation breached their contract” but “The corporation breached its contract.”
Sparingly use parentheses (if you can control yourself). Parenthetical material (if important enough) should be included in the text and (if of secondary importance) can be included in a footnote. Parentheses are useful to designate an abbreviation or citation.
Eliminate unnecessary words. Do not use two words when one will do or one word when none will do. Sometimes, saying nothing is a better choice.
Use the same terms to denote the same thing. Avoid creating word puzzles by using the same word to mean different things or different words to mean the same thing like our use of “brief” and “memorandum.”
Eliminate repetitive, unnecessary, and superfluous redundancies. Eliminate repetitive . . . oops. Do not use pairs of words that have the same effect, like “each and every” and “final and conclusive.” Avoid using pairs of words that include each other, such as “necessary or desirable” and “authorized and directed,” unless you have stock in a paper or software company.
Use parallel construction. If more than one section, paragraph, sentence, or clause is similar in substance, structure them similarly.
Avoid ambiguous sentences. Do not misplace modifiers: “Plaintiff saw defendant while signing the contract” does not clarify who signed the contract.
Avoid indefinite pronouns as references. Avoid phrases such as: “After a party sues another party, she. . . .”
Use shall, will, must, and may appropriately. “Shall” indicates an obligation to act. “Will” indicates a future act. “Must” indicates a command. “May” indicates a discretion to act or a month.
Employ definitions or shortened names where necessary. These can provide necessary information and reduce repetition but should be used sparingly, e.g., for the identification of parties, citations, or terms.
Avoid using the words like “such” and “said.” Use the, that, or those instead.
Use gender-neutral terminology. Avoid the use of gender-specific nouns or pronouns when not appropriate.
Modify dangling participles. The noun or pronoun modified by a clause should be included in proper relation to the modifier.
Do not follow all these rules slavishly. Even Herman Melville and Emily Dickinson recognized the need to write freely if the result sounds better due to frequent conversational use and acceptance. To make a brief really hum, restrained rebellion is alright.

The writing style of a brief should be varied to avoid a monotonous memorandum. The following guidelines offer assorted suggestions:

Vary the length and form of sentences.
Alter the length and format of paragraphs.
Use different words to begin sentences and paragraphs.
Use transitional words, phrases, and sentences.

LLMs can follow style guides, such as those above. If a lawyer provides a detailed prompt—including the stylistic principles outlined in this section—GenAI can produce a document adhering to those guidelines. Whether ensuring concise wording, avoiding unnecessary legalese, or maintaining active voice, AI can systematically apply writing best practices. By following preferred writing styles, LLMs can help lawyers and their firms maintain consistency across briefs, reinforcing credibility and professionalism.

Beyond drafting, GenAI can serve as a powerful editor. LLMs can simplify language, break up run-on sentences, and remove redundant phrases, all while preserving the argument’s impact. AI can also flag vague or ambiguous statements, helping attorneys refine their writing for precision.

For example, LLMs can identify misplaced modifiers or unclear pronoun references, enabling lawyers to communicate their intended meaning more effectively. Additionally, AI can support parallel construction, clarify multi-part arguments, and create a logical structure that enhances readability.

LLMs can also improve sentence variety, suggesting alternative sentence openers and optimizing paragraph transitions. As such, GenAI can avoid repetitive patterns that might weaken persuasion. LLMs can also balance sentence length to keep writing dynamic, alternating between shorter and longer sentences. When applied strategically, these refinements can make legal writing not only more readable but also more compelling.

Lastly, GenAI can help ensure that briefs remain professional and inclusive. AI can detect and suggest alternatives for language that’s gendered or biased, allowing legal arguments to align with modern standards of neutrality. LLMs can effectively enhance clarity, logic, and tone, allowing attorneys to draft more effective, polished briefs in less time.

§ 14.3.4 Redrafting and Reviewing the Brief

A major technique in producing well written memoranda is redrafting, redrafting, and redrafting. An attorney should plan to edit drafts of memos until they present a clear and precise argument.

Consider an LLM as an ever-patient virtual editor, enabling attorneys to refine their briefs through unlimited revisions, while consistently suggesting improvements. GenAI can identify structural weaknesses, clarify ambiguities, and increase persuasiveness. Beyond substantive edits, LLMs can also correct grammar, eliminate typographical errors, and verify citations for accuracy. GenAI can also simulate judicial perspectives, offering feedback on readability, clarity, and persuasiveness.

Counsel may review several considerations in editing a brief:

Is the structure appropriate?
Is the meaning distinct?
Is the impact persuasive?
Is the writing style understandable?
Have grammatical mistakes been corrected?
Have typographical errors been eliminated?
Was the brief spell-checked?
Have citations been cite checked?
Will the brief win a Pulitzer?

The practice of many lawyers to extend the deadline for finishing the writing of a brief until the last moment leaves little or no time for redrafts. Time needs to be taken to make necessary revisions. A second re-draft substantially improves the substance and style of a memo. A third draft should produce a final draft or a near final draft. Some lawyers edit a second draft for substance and a third for style. Citations that have been cite-checked may also need to be corrected during one of the drafts.

Another technique to improve the quality of a brief is to have another person critique the memorandum. This person should read the brief both from the perspective of the judge and from the perspective of an editor. Portions of the brief that are unclear or incomplete can be marked. Other portions of the brief that need editing can be rewritten by this or another person. The revision need not necessarily make substantive changes regarding the facts and the law, but focus on stylistic and grammatical revisions unless the editor has a comprehension of the case, motion, and the law. As suggested, Al can assist with deadlines, drafts, and critiques.

Typografikal or speeling erors substancialy reeduce the impahkt of the Breef. A memo should not be submitted until all mistakes have been eliminated. An imperfect brief may leave a judge with an impression that the attorney was also sloppy in stating the facts or researching the law.

§ 14.4 Oral Argument

§ 14.4.1 Role of Oral Argument

Oral argument in motion hearings serves many purposes:

Acquainting the judge with the purpose and reason for the motion.
Stating the precise relief sought.
Explaining the relevant facts and controlling law.
Highlighting important issues in the case.
Narrowing issues to be resolved.
Clarifying any misconceptions held by the judge.
Covering matters unresolved by written memorandum.
Persuading the judge concerning the merits of the argument.
Answering and inviting questions of the judge.
Convincing an undecided judge.
Suggesting alternative ways to resolve the problem underlying the motion, if necessary.
Fulfilling a lawyer’s desire to be a Shakespearean celebrity.

Oral argument can be extremely effective. The written brief may inadequately provide the judge with the information necessary to resolve the matter in the client’s favor. An in person or teleconference presentation may dispel problems and misconceptions a judge has with a motion. The argument permits an advocate to focus on those aspects of the case critical to a resolution of the motion. The motion argument also reduces the chance that an unfair decision may result because of an erroneous impression the judge has formed prior to the argument.

The most common form of oral argument involves the moving lawyer proceeding with an argument, followed by the opposing lawyer, and often followed by rebuttal. This section will focus on how best to present an oral argument in this format. But this is not a universal method.

Some courts and judges alter this basic pattern by orally announcing or reading their preliminary decision before the oral argument and then allowing the lawyers an opportunity to argue. They base their initial decision on the motion documents. The approach taken by these judges places a high premium on the quality of the written memorandums submitted by the attorneys prior to the argument.

Oral argument then follows. The losing lawyer has the opportunity to argue why the order is wrong. The winning lawyer also has a chance to talk and say very good things about the brilliance of the judge. This method provides both advocates with the chance to focus their arguments on the issues decided by the judge.

This approach does focus the oral argument. It can be disquieting, if not depressing, to be on the losing side before the argument. But then, what is another small challenge like that compared to surviving law school?

Many of the following subsections are helpful in planning and presenting argument in courts, as well in arbitrations and administrative law cases before arbitrators and hearing officers.

§ 14.4.2 Preparation

Preparation initially includes the selection of the attorney to make the argument, preferably one who is licensed and able to appear before the court. A lawyer licensed in another state or court can appear and argue by requesting “pro hac vice” admission status: that is, the judge allows the lawyer to appear and argue the submitted motion. It’s common for the court to have a rule requiring that local counsel be retained to work with the out-of-jurisdiction attorney.

Proper preparation by an attorney for a motion argument requires the attorney to know the facts of the case, the purpose of the motion, the relief sought, and the supporting law. Counsel should review motion documents and memoranda. It may be necessary with some motion briefs to update the law cited. This updating may reveal recent favorable developments and prevent the embarrassment of relying on unauthoritative law.

Thorough preparation also involves answering the following:

How Much Time Will Be Allowed for the Argument? Some courts schedule motion argument for specific and limited periods of time; other courts schedule motions in sequence and permit lawyers an unspecified reasonable time for argument. These limits are appropriate for most motions, while other motions require additional time. If more time is needed than allocated, the clerk or administrator may be contacted and additional time requested, or the attorney may set the courtroom clock back.

Counsel should not prepare the presentation to occupy all the time available. Oral argument is not designed to cover each and every issue but rather is designed to focus on important matters. The time should be structured to cover only significant points with time left unstructured to deal with anticipated questions from the judge.

How Familiar Will the Judge Be with the Motion? An attorney must determine the degree of familiarity a judge has with a case and motion. Some judges will not have been able to review the file and moving submissions; other judges will have perused or skimmed the relevant documents; others may have had their law clerks brief them on the motion; and still others will have read the file and the motion submissions. The extent of the judge’s familiarity with the motion dramatically affects the content of the oral argument. An attorney must plan a different beginning and explanations depending on what the judge knows or does not know.

Determining the familiarity a judge has with a motion may or may not be difficult. The general background of a judge is easily obtainable; the specific knowledge a judge has about a motion may not be as obvious. The usual practice or habit of a judge in preparing for motion hearings provides information about the probability of the judge being prepared for a particular motion.

More specific information may be obtained from local co-counsel or by properly contacting the clerk or law clerk and inquiring whether the judge had or will have time to read the moving documents. Some judges advise the lawyers about the degree of their preparation. It may be necessary or advisable to prepare two arguments: one for the unprepared judge and the other for the prepared judge. The advocate is then prepared for both contingencies and able to sleep better the night before.

How Does the Judge Typically Conduct Oral Arguments? Judges differ in their approach to motion argument. Judges commonly act in a professional and courteous manner, although a few judges are hostile or rude. Every jurisdiction seems to have at least one, which helps make the other judges look better. Judges may ask questions in a curious, polite manner or in an aggressive, attacking style. It is critical for the attorney to discover the tendencies of the judge before a motion so the argument can be shaped for the judge and prepared to respond to queries the judge may pose. But judges do not always act according to their reputation, and it helps to be flexible when what was expected does not occur.

How Will the Sequence of Arguments Proceed? Usually, the moving party has the opportunity to open and close the argument. The movant typically argues first, followed by opposing counsel, who receives an equal opportunity to present an argument. Other parties to the case argue at the appropriate time in support of or in opposition to the motion. The order of the parties listed in the caption or their support or opposition to the motion usually provides an appropriate order.

Rebuttal argument opportunities are usually offered to all parties. Judges typically allow lawyers to continue to argue as long as their statements appear relevant and not cumulative and as long as time permits or until the judge is put to sleep.

Will the Argument Be Held in Chambers or in the Courtroom? Arguments on motions commonly occur in the courtroom, or may occur in the chambers of the judge. The formality of the argument and the type of presentation made will vary between these settings. A chambers location permits a more informal basis for an argument. A courtroom location requires a more formal presentation.

In federal courts, arguments typically occur in the courtroom. This is also the practice in most state courts. Some judges have a strong preference regarding the location of the argument, other judges may be neutral. Some judges prefer motion discussions to occur in chambers unless testimony is required; other courts routinely schedule arguments for the courtroom regardless of the type of motion. An attorney who believes the location of a presentation may affect a judge’s ruling should request that the matter be heard in the most advantageous place, short of Tahiti.

Reasons that support a courtroom location include: (1) the motion hearing is a public hearing and should take place in the courtroom; (2) the judge will better understand the complexities of the motion if a formal presentation is made; (3) the party has a right to attend and hear an argument in a courtroom; (4) evidence, including testimony or exhibits, will need to be formally introduced; (5) visual aids will be used as part of the argument; and (6) the courtroom paneling matches the lawyer’s briefcase.

Reasons that support a chambers discussion include: (1) an informal atmosphere is more appropriate; (2) matters that are private and confidential will be discussed; (3) a chambers discussion will take less time than a formal presentation; and (4) counsel can admire the judge’s photographs and awards.

Will a Record Be Made of the Argument? Federal courts commonly have a court stenographer present, as do many state courts. Other courts electronically record motion hearings. These jurisdictions record hearings because the proceeding is a public matter and should be preserved, because factual matters will be presented and such evidence needs to be preserved, or because everything in a courtroom is traditionally recorded.

Some jurisdictions do not record oral motion arguments. Other jurisdictions that traditionally have recorded are changing their practices and no longer record arguments. Restrictive state court budgets are often a reason for the absence of making a record, although technology supports affordable digital recordings.

Some judges request that the lawyers stipulate that no oral record and transcript be made. A lawyer may request that a record or album be made. A judge may refuse to supply any means to make a record. An attorney who believes that a record is essential should request that a record be made. Should the court deny this request, the attorney, with the permission of the judge, may provide and pay for a reporter or equipment.

Should a Record Be Made of the Proceeding? A motion hearing that includes the presentation of facts by live testimony should be recorded and a transcript later made if the case proceeds to trial. These facts may be a basis for evidence or impeachment at the trial. A motion hearing that involves legal discussions may need to be recorded in limited situations. A record of legal presentations holds everyone accountable for statements made and restrains everyone, well, almost everyone, from saying inappropriate things. Absence of a record affects what some lawyers and judges say and do.

Should the Client or Other Individuals Be Present at the Hearing? The advocate should consider having the client appear at the motion hearing. Appearance is necessary if the client is to testify. An appearance may also be advisable to help remind the judge that the motion does involve real life problems. Many clients may not be able to afford the time or expense involved in attending.

The client need not attend just for the sake of being there. The presence of some clients can prevent a tactical problem for the advocate. Clients may expect a lawyer to say or do something, and their presence may unduly influence a lawyer. For example, some clients expect their lawyer to be a Puppet Master Action Figure and too many counsel oblige. However, client attendance in apt situations demonstrates concern, can provide information, and permits impromptu settlement negotiations.

The presence of other individuals also depends on their need to be present. Those who will testify should be available; and those who may help the lawyer should also be available, including a law partner, an associate, a law clerk, an expert, a seer, or a clergy person. These individuals should not interrupt the advocate during the argument and should not pass notes or try to gain the advocate’s attention, unless there exists some critical reason.

LLMs can help focus the oral argument on aspects that courts really want to hear. Judges usually don’t want lawyers to regurgitate their briefs; they want attorneys to focus on nuances that may not have been overlooked or under-emphasized in the briefing. The best tools can help identify and elucidate overlooked or underdeveloped aspects of a brief.

GenAI can also help structure oral arguments by generating clear, organized talking points that prioritize the strongest legal and factual issues. AI tools can help refine language for oral delivery, making arguments more conversational and engaging while preserving legal precision. Additionally, LLMs can identify logical gaps or weak spots, ensuring that attorneys support each aspect of their position with well-founded explanations.

Beyond structuring arguments, GenAI can also simulate judicial engagement, predicting the types of questions a judge may ask. Those potential inquiries allow attorneys to prepare concise, persuasive responses. LLMs can also simulate opposing counsel’s strongest counterarguments, enabling attorneys to refine their rebuttals.

§ 14.4.3 Oral Presentation

Structure. An argument must be structured in a way that contains everything an attorney needs to say in readily understandable order. Typically, the movant needs initially to explain the motion, the relief sought, and the nature of the case. There is not much flexibility in the initial part of the motion argument because the judge will need to know certain information. Both sides will have substantial flexibility in structuring the substance of the argument.

The preparation of a structured argument should contain some “disposable” matters that may have to be abandoned because of lack of time. The judge may raise issues not considered by the attorney; or the other lawyer may raise some matters that need to be addressed. Flexibly structured arguments permit sections to be eliminated when necessary. An attorney should not expect to deliver an entire pre-planned argument. The argument should be designed to serve as a means of developing a conversational dialogue with the judge.

Oral presentation should be designed to take advantage of techniques appropriate for oral argument. Simple words, colloquialisms, common metaphors, informal phrases, timely sneezes, and persuasive coughs may be effective orally, although not suitable in written form. The written preparation for motion argument should be reviewed to eliminate statements that are effective in writing but fare poorly when said verbally.

A primary skill for an advocate is listening. The lawyer that can best discern what concerns the judge is best situated to address the concerns. The ultimate question a motion argument must address is: what can counsel say to influence the judge to accept the position of the lawyer? The facets of motion advocacy discussed in Sections 14.2 and 14.4.2 affect the degree of influence.

LLMs can generate flexible outlines tailored to the motion’s key issues. Those outlines can permit gametime adjustments, enhancing fluid arguments if the court raises unexpected questions or temporarily shifts the advocate’s focus. LLMs can help identify central themes to emphasize, and suggest alternative argumentative framings.

Beyond structure, GenAI can help refine language for oral persuasion, transforming formal legal writing into a more natural, engaging speaking style. AI can simplify legal complexity into digestible explanations that are easier for busy judges to follow. LLMs can craft impactful openings that quickly establish authority, as well as strong closings that leave a lasting impression.

LLMs can also support oral highlights of the most-relevant legal authorities. GenAI tools can create concise, relevant summaries of how the most-pertinent cases apply to your facts. A summary can present the most relevant legal principles to the judge without overwhelming the court with unnecessary string cites. AI can also format (e.g., multi-level bullets) key quotations from cases, statutes, rules—all for quick retrieval during argument, reducing the risk of fumbling through notes.

The following sections discuss particular considerations that apply to oral argument.

Opening Remarks. The argument should not begin until the court indicates that counsel may proceed. A few judges still say: “Ready, set, go.” The beginning of a motion argument should contain the following information in a few sentences:

A self-introduction by the attorney, the identification of the client represented, and the position of the attorney regarding the motion (i.e., movant, respondent, opposing lawyer).
An explanation of the motion. Describe the motion and the law that authorizes it. If the motion is a common, recurring procedure, this explanation may be very limited. If the motion is unusual, it may require more of an initial explanation.
A statement of the relief sought. It is critical to an understanding of the motion for the judge to know exactly what the movant or opposing party seeks. With some motions, the relief is obvious; with others, a clear explanation is required.
An outline of the content of the argument. A brief explanation of what will be covered informs the judge about what will be said, the positions asserted, the order of the points, the length of the argument, and whether the judge should pay attention or just pretend.

This overview should be concise and not become overly detailed, or merge into a mini-argument, or cause the judge to interrupt.

The judge’s knowledge concerning the case and motion and the judge’s conduct in the beginning of the motion hearing often dictate how an attorney should begin. If the judge is prepared, the lawyer should present a quick overview of information to refresh the judge’s recollection. If the judge has not reviewed the file or motion papers, introductory remarks need to focus on these explanations.

Presenting Facts During Oral Argument. An attorney must prepare to explain the relevant facts to the court. If a motion involves several independent issues, it may be more effective to include an explanation of the relevant facts immediately before each legal argument instead of describing all facts in the beginning. Some judges may instruct the lawyer to bypass the factual explanation and proceed to the argument because the judge is familiar with the facts.

The presentation of facts during oral argument differs in several respects from the description of facts provided in a written memo. An oral presentation provides the advocate with more flexibility concerning what is included and excluded. By observing the judge and the effect of what the attorney says, the advocate can alter the explanation to appropriately meet the needs of the judge. Oral argument also permits the lawyer to interject some emotion and perhaps drama into the factual description. The lawyer should attempt to impress on the judge the notion that the case involves persons with real life problems and not just problems raising abstract legal issues. It is easier and more effective for the advocate to emote during oral argument rather than in a law library.

Argument. The lawyer should usually plan to concentrate the bulk of an oral argument on the points likely to win or defeat the motion. After selecting the points, counsel should determine their most effective order and begin with as strong a point as appropriate.

Lawyers may exhibit a conscious or unconscious tendency to avoid arguing tough issues and instead focus on easier issues. Unfortunately, the tough points may involve dispositive matters and, because of that fact, must be addressed even if they are difficult to analyze. The advocate must rise to this challenge and confront the tough as well as the easier issues. Remember your first Socratic class adventure?

During oral argument, counsel should usually limit an explanation of the law to the essentials. The holding of a case, the language of a statute, the intent of a rule may be sufficient to support a point with legal authority. Oral argument is not well designed to provide the judge with a detailed description of the law. That can best be accomplished in a written brief.

Citations to the legal authorities should also be reserved for the brief, unless an authority is not included in the memo. References to cases during argument should include the full case name unless the case is well known to the judge by a shortened description. It may often be helpful to include the date of the case and the deciding court.

The use of quotations in oral argument presents some additional considerations. Quoted material may be the most effective way to make a point rather than a paraphrase of the information. The general rules concerning reading quotations—keep the quotation short and do not quote often—reflect good advice. The selective use of quotations in oral argument can be balanced by referring to the inclusion of a full quotation in a memo. The danger in editing quoted material is that the meaning of information may become distorted or the judge may perceive that the attorney is inappropriately slanting the quote, which is probably why the quote has been edited.

Quotes should be written out and readily available to the advocate during oral argument to avoid wasting time and interrupting the flow of the argument. Certain quotations, particularly those from statutes and rules, may be more effectively analyzed if the judge is asked to read along a copy of the quote provided the judge. Sort of like a prose sing-along.

Concluding Statement. Many arguments are more effective if they are short. Some arguments would have been more effective if they ended before they began. A well-conceived presentation need not be lengthy.

The argument should close with a statement that states the relief requested, repeats the theme or themes of the motion argument, and contains any other remark that may persuade the judge. Closing remarks should be concise and brief. The attorney should plan the closing statement in advance and reserve the last minute or so for closing remarks. An argument should not end with a verbal whimper but should conclude with an oral bang that the judge will remember into retirement.

If a judge has not been persuaded by the content of the argument and the manner of its delivery, a few ending remarks will have no impact. If time is limited, it may be better for an attorney to use available time for substantive rebuttal rather than for concluding remarks. “Nothing further, your Honor” may be the best possible form of a conclusion.

§ 14.4.4 Styles of Argument

The presentation of a motion argument involves consideration of matters that are similar to other oral argument situations. The specific techniques that should be applied depend on several factors including the type of motion, the position asserted by the attorney, the familiarity the judge has with the case, and the time available for argument.

The range of presentation approaches extend from the formal, appellate argument approach to the informal, conversational approach. The location of the motion hearing, the preference of the judge, and the type of motion will influence the approach taken by the attorney.

The advocate needs to be both assertive and deferential, and to avoid being overly aggressive and obnoxious, which can be difficult for many of us. One way to decide how to present the argument is to fashion a presentation that avoids pitfalls and deficiencies that weaken an approach. Counsel should generally avoid:

Reading an Argument. This form of presentation quickly bores the judge, causes the attorney to lose eye contact, destroys flexibility in dealing with questions and openings, and makes it difficult for the judge to listen and concentrate.
Memorizing an Argument. This approach prohibits effective rapport because the attorney is concentrating on what was composed instead of what is being presented, because forgotten information will cause an embarrassing period of silence and stammering, and because the flexibility and credibility of such an approach is inhibited. Further, the last thing any lawyer who survives law school wants to do is memorize anything more except their hourly rate.
Engaging in an Argument with the Other Attorney. The argument should be directed to the judge. While the positions of the other side need to be challenged and rebutted, the focus of the argument should be directed to the judge, notwithstanding the fun associated with verbally wrestling with the opponent. Judges really dislike being left out.
Debating a Point for the Sake of Debating. Do not lose sight of the purpose of the motion—to obtain specific relief for a client. Some attorneys get caught up in the argument and say things to debate a point that may have little to do with gaining relief for a client.
Sounding Overly Formalistic and Oratorical. Some lawyers argue motions with a very formal approach, identical to an approach they saw in an old movie or would take toward an appellate court. An overly formalistic approach may make the attorney appear to be too rigid, detached, and, yes, less effective.
Appearing Too Casual. Some attorneys, in an attempt to be conversational, take what appears to be an overly casual, relaxed tact toward the motion. The judge may sense that the attorney is not serious enough, undercutting the impact of the argument.
Interrupting the Opposing Lawyer. Interruptions should be reserved for situations when the opposing lawyer makes statements that are unfairly prejudicial or mischaracterize something that requires immediate correction. These circumstances become obvious when the hair on the back of the head bristles at a 90-degree angle. It is unprofessional and discourteous to interrupt opposing counsel unnecessarily. It is more effective for the lawyer to take notes and wait until the other attorney is done and then comment on any misstatements or inappropriate remarks. Good judges do dislike and prohibit bad interruptions.

Several benchmarks typify an effective oral argument approach:

The attorney has in mind the overall content of the argument.
Counsel has selected the relevant words and phrases to express.
The attorney persuasively delivers the information, combining the prepared argument with spontaneous remarks.
This flexible approach permits a natural conversational approach and the inclusion of compelling comments.
The argument is geared to the needs and interests of the judge, with the attorney directly responding to questions.
The lawyer engages the judge in a conversation focused on matters that increase the chance of winning the motion.
The advocate is open to questions from the judge and encourages the judge to reveal what the judge is contemplating.
Any questions asked are answered directly and candidly.
The lawyer does not sound like an advocate on the People’s Court.

Judges will vary in their general approach to motion hearings and in their specific approach to particular motions. Some judges are active and ask many questions; others are passive; and still others ask at least some questions. The approach an attorney takes during a motion argument may affect what the judge does. An approach that actively involves the judge in the motion hearing may be most effective. The more a judge participates in a motion hearing the better informed the judge will become and the more likely it will be that the questions and concerns that the judge has will be addressed.

§ 14.4.5 Responding to Questions

An attorney should be quite pleased when a judge asks a question and should conduct the argument in a way that encourages the judge to ask questions. The decision the judge makes will be based in part on answers to questions the judge receives. In reality, argument is only effective to the degree it addresses the needs of the judge. Responses to questions also clear up any misunderstandings or misperceptions of the judge. And, questions and answers ensure that the time will be well used and help make the presentation more relevant.

Questions can be classified into various categories:

Facts concerning the motion or case or facts involved in supporting legal authorities.
Information relating to procedure rules, including their impact on the motion.
Legal authorities, including cases, statutes, and rules.
Policy considerations.
Information about the relief sought.
Matters the attorney should have considered, but did not.

Questions can also be classified according to the manner in which the judge may ask:

Neutral, fair questions that seek relevant information.
Friendly, helpful questions designed to assist the advocate in making a point.
Adversarial, hostile questions that display the judge’s attitude and opinion toward an issue.
Difficult, probing questions that force the lawyer to respond.
Challenging questions that indicate the judge has some problems with the relief sought.
Confusing, awkward questions that reveal the judge has missed a point.

The proper classification of a question assists the lawyer in providing a responsive answer. Categorizing queries during the argument is often difficult, but may be necessary for the lawyer to determine why the judge is asking the question and what information the judge needs.

The proper response to a question can be a key factor in obtaining or opposing a motion. The following suggestions help in phrasing an effective response:

Understand the Question. The attorney should first make certain that the question is understood by counsel. Too often a lawyer does not listen to a question and responds to a query they wished they were asked instead of the actual question, just like law school exams. Some questions may be misinterpreted or misunderstood. If this occurs the attorney may need to rephrase and clarify the question or ask the judge to repeat it.
Do Not Interrupt the Judge. The lawyer should let the judge complete the question. Many judges chide an attorney who interrupts. Lawyers may be inclined to interrupt to show the judge they know the answer and attempt to rush and save time. The attorney’s preconception of the question often backfires because the completed question may be different than the anticipated question.
Promptly Answer the Question. An attorney should rarely postpone answering a question. The judge has a reason for making an inquiry and expects an immediate response. An unanswered question may cause the judge not to listen to the continuing argument until the answer is given and may be perceived by the judge as an effort to avoid responding to a question. In some situations, it may be sufficient to provide a short answer and to explain more later in the argument.
Directly Answer the Question. It will do the attorney little good to hedge or respond obliquely and add tangential explanations. A direct answer should be immediately made followed by any qualifications or explanations.
Succinctly Answer a Question. An answer should be given that responds to the question, just like law school exams. A lengthy answer that goes beyond providing the judge with responsive information should be avoided.
Candidly Respond to a Question. All answers must be stated in an honest and straightforward manner. Many questions will focus on a weak point and lawyers may attempt to argue a point rather than respond to it. An answer to a question may result in a concession that some lawyers are loath to make. An effective advocate realizes the need to candidly admit a weakness or a concession. The effect of an adverse admission may be reduced by providing additional information and the impact of a concession may be reduced by placing it in perspective.
Monitor Non-Verbal Reactions. What an attorney says in answer to a question should match the attorney’s delivery of the response. An uncertain look in the eyes, a flushed face, a quiver in the voice, an underconfident expression, an embarrassing silence, a lengthy stammer, falling to the courtroom floor, these and other non-verbal responses may signal the real answer by a lawyer. As much as possible the lawyer should maintain direct eye contact with the judge and visibly appear to be confident.
Phrase an Answer in as Favorable a Way as Possible. The lawyer should attempt to respond to an inquiry in a way that advances the client’s position.
Do Not Answer the Inappropriate Question Directly. Rare circumstances may permit the lawyer to attempt not responding to a question. Some questions may require a lawyer to qualify an answer or to explain to the judge legitimate reasons why a question cannot be answered. Some questions may permit a lawyer to postpone an answer until later in the argument. Still other questions may dictate that no answer be given. These circumstances occur quite infrequently. Many questions may seem irrelevant to the lawyer, but are not to the judge.
Be Cautious in Answering Some Questions. Certain questions will be more difficult than others to field. It may be necessary for the lawyer to candidly state that counsel has not previously considered the question nor has an answer. Some questions seek information the attorney lacks, and counsel can say: “I don’t know. . .but I can provide a response after this argument.”
Use an Answer to a Question as a Transition to Make a Point. After an answer has been provided, the lawyer should direct the response back to the planned argument. Counsel should blend desired points with responses to judge’s questions. An advocate should attempt to maintain some direction over the argument by shifting the discussion to strong points that support the client’s positions.
Do Not Repeat a Response to a Question. A prepared argument may contain responses to a previous question by the judge in a subsequent part of the argument. A lawyer should not repeat an answer but should flexibly revise the planned argument and continue on to a new point.
Do Not Laugh. It usually is ineffective for the attorney to double over in laughter or ask the judge for the punch line.
Do Not Engage in a Debate with the Judge. A line of questioning may prompt an attorney to engage in a sharp debate with the judge. This situation may arise because of intense questioning or because of some hostility by the judge. Persistent questioning by the judge may reflect an effort to test the validity of the advocate’s positions. The attorney should rise to the challenge and respond with equal persistency. Hostile questions may reflect a nasty judge who is acting unfairly or is oblivious to the demeanor portrayed. The advocate will need to act with restraint in responding. It will be more effective for an attorney to be tolerant and polite rather than contentious.

This does not suggest that there is nothing that counsel can or should do when facing an unfair judge. The lawyer may politely request that the judge refrain from inappropriate behavior or questioning, or the lawyer may state on the record what is happening in order to protect the client’s interests. These tactical decisions are difficult to make because the judge will attempt to rule impartially on the motion and the reaction of the attorney may unconsciously or consciously affect that decision. Section 12.5 explores some of these ethical dilemmas for the lawyer.

§ 14.4.6 Communications Skills

An attorney should have two primary communication goals: first, to emulate persuasive communication skills, and second, to avoid ineffective communication deficiencies.

Effective Skills	Ineffective Approaches
Appropriate dress and appearance	Poor grooming and demeanor
Maintaining eye contact with the judge	Avoiding eye contact and looking at notes, walls, or ceilings
Modulating voice tone, pitch, and volume	Speaking in a monotone or talking too loudly or too softly
Avoiding verbal glitches	Repeating verbal glitches such as “uh,” “ah,” or “you know”
Varying facial expressions	Maintaining constant, similar, expressions
Using natural and relaxed gestures	Using no gestures, or employing distracting gestures
Appearing confident and comfortable	Engaging in distracting habits or nervous tics
Using good diction and clear, distinct delivery	Displaying poor diction and delivery
Employing understandable words and phrases	Engaging in unnecessary legalese
Maintaining proper pace and timing and pauses	Talking too fast or too slow and not using transitions
Being respectful of court	Acting disrespectful toward court
The more common distracting mannerisms that occur during argument include swaying or slouching, tugging at clothes or glasses, holding a pen, drumming fingers on the lectern, shuffling papers, playing with a laptop, sweating through outer garments, and dry heaving.

Common courtesies that judges expect of lawyers include specific behavior and modes of addressing individuals involved in the motion hearing. The following guidelines reflect typical expectations:

Attorneys rise when addressing the court.
An argument begins with “Your Honor,” or “May it please the court,” or “If the court please.” “You look marvelous in black” is less acceptable.
Counsel preface a comment with the phrase “Your Honor” or “Judge” when appropriate.
Categorical answers are stated as “Yes, Your Honor” or “No, Judge.”
Opposing lawyers should be referred to by their last names prefaced with Ms., Mrs., or Mr. or as Honorable Counsel.
Other judges should be referred to by title, not simply their last name or any nickname. (e.g., “Justice Holmes,” not “Holmes;” “Judge Smith,” not “Hanging Tom.”)
Clients and witnesses should be similarly addressed and referred to by their last names and not first names, during both questioning of witnesses and during oral argument.
Comments toward all persons in the courtroom should avoid insults or sarcasm.
Counsel should be appropriately respectful toward all and should neither be rude nor discourteous.
Compliments or flattering comments to the judge should be avoided to avoid any appearance of impropriety or favors.
Faces, grimaces, rolling eyes, snickering, smiles and other non-verbal reactions made during the other attorney’s argument are bad manners.

Notes. Notes usually will be necessary for a motion hearing, and their proper use makes a presentation more effective. Notes provide the advocate with a convenient reference for information during the argument, with a ready listing of points and authorities, with a guide to the structure of the argument, and with answers to questions asked by the judge. The absence of notes may indicate that the attorney has not prepared for the argument and make it difficult to present a complete and accurate argument. Notes should not distract from the presentation and should be employed in a way that increases the persuasive influence of the lawyer. Various ways notes can be used include:

A printed or written outline of the argument, with key issues, facts, phrases, and words highlighted.
A laptop screen that scrolls through the argument.
A listing of important facts, citations, and other data that provide the attorney with readily accessible information.
An index or ready access to the motion papers and documents in cases involving numerous documents.
Concise summaries or relevant quotations of applicable decisions, rules, or statutes involved in the argument.
Minute etchings on the retinas of the eyes.

The notes may appear on a legal pad, a laptop or tablet screen, a limited number of index cards, or in a loose-leaf notebook. Whatever format is used should be geared to the needs of the argument. A lengthy or complex argument may require a comprehensive electronic notebook for quick reference to cases, statutes, affidavits, or memos. A single or short argument may only need note paper.

Lectern. Many courts have a lectern for the attorney to stand behind. Some courtrooms will have counsel tables arranged so that the attorney stands behind or to the side of the table. The availability of a lectern provides a handy place for notes or a laptop but may afford insufficient space for supporting documents or books. The lectern should be used appropriately. It should not be leaned on, clenched with unusual force, pushed around or slept on. Many courts expect an attorney to stand behind it and not move; other judges will permit the attorney to move from side to side.

Situations in courtrooms where attorneys must stand by counsel table cause many attorneys to appear uncomfortable or awkward. It is difficult for some attorneys to stand without something in front of them. They try to lean over on the table, stand in front of a chair, slouch, or place their hands in and out of their pockets. Attorneys need to become comfortable standing alone by practicing standing with their arms comfortably at their sides and by using appropriate gestures.

Visual Aids. Motion hearings may involve exhibits and various forms of visual aids. Real evidence in a case provides opportunities for the introduction or use of exhibits. Other types of visual aids may assist an attorney in the oral argument presentation. A power point presentation, electronic documents highlighted on a monitor, diagrams, graphs, models, photos, visual projector presentation, videos, CD or DVD materials, computer generated graphics, physical evidence, and copies of the lawyer’s accounts receivable may increase the impact of an argument.

The advocate must learn to use these exhibits and visual aids effectively during the hearing. They need to be easily seen and observed. Some can be enlarged or duplicated and provided to the judge and opposing counsel. Electronic exhibits need a machine and extension cord, which may not be available in the courtroom. A computer program can be displayed on a large monitor or individual monitors available in the courtroom. The attorney should rehearse with the exhibits to avoid making mistakes during the argument.

Visual aids are not always useful or helpful. They may confuse an argument or distract from the verbal presentation. They may cost too much or take too much time and effort to set up and explain. The other side may oppose them and require further argument on their propriety. Some judges perceive illustrative aids as gimmicks. These and other problems need to be considered in deciding whether visual aids should be employed.

Practice. Practice. Practice. The success of an argument depends on the thoroughness of the attorney’s presentation. It is critical to the effectiveness of a presentation that it be rehearsed. A rehearsal helps with timing, reduces reliance on notes, and builds confidence. The extent of a rehearsal depends on the complexity or magnitude of the motion and the experience of the lawyer.

There are several types of rehearsals. An attorney can informally prepare by mentally going over the argument, can verbally rehearse by spontaneously practicing out loud, can follow a prepared outline or script, or can combine these formats. Rehearsals may be several in number or ongoing as the attorney uses these opportunities to shape the argument. Rehearsals and self-critiques should continue until the presentation is smooth, the attorney feels comfortable and confident, and the time of the argument conforms to the time available before the judge.

Significant oral arguments should be rehearsed in front of someone. An imaginary judge or a mirror may be sufficient for most arguments, but presentations that involve substantial issues or money may deserve a more thorough rehearsal with someone present who can provide a helpful critique. Anyone—a friend (if any) or a non-lawyer (if known)—may be able to comment on the clarity of the argument. A colleague knowledgeable in the area can offer additional suggestions about both the content and presentation of the argument.

A colleague may also be able to ask questions typical of the ones a judge may ask. Both the advocate and the colleague can anticipate questions that probably will be asked in order to make the rehearsal as realistic as possible. Rehearsals may also include the use of video equipment with the advocate being able to watch a replay of the moot argument and to have someone else further critique the performance.

§ 14.4.7 Tele-Arguments

Courts may hear arguments remotely. (And “remotely” can include within the same city, but not in the courtroom.) Technological advances have made distant hearings more frequently available, either upon request of the parties or by insistence of judges. Some courts mandate that motion hearings will be conducted remotely unless the motions involve witness testimony or the submission of evidence. Counsel may request in person oral argument for other motions, particularly dispositive notions such as summary judgments.

Tele-arguments may be audio-only or full video argument. In many cases, a teleconference may be a money and time saver for the client. Arbitrations and administrative hearings also use tele-arguments, and many arbitrators and administrative law judges encourage and favor their use.

Most of the foregoing discussion on in-person arguments applies with equal force to teleconference arguments, but there are additional concerns to address for video presentations. It is important for counsel to make sure that the location of the lawyer is similarly set up with operational audio and video (if to be used) equipment and a professional-looking location for the argument. The computer system needs to have sufficient available bandwidth. Minimal background noise, silenced phones or other devices, and minimization of any distractions are all helpful to an optimal argument.

A few general rules also apply.

Prepare as you would for any argument.
Be especially conscious of when the judge or others are speaking, and avoid interrupting.
Familiarize yourself with the system used by the court and whose microphones are active, and how can they be muted.
For video arguments, dress as you would for the courtroom, as this is not an invitation to dress informally. Casual clothes might work for an audio argument, but experienced lawyers will dress for the courtroom even when there will be no video, just in case there is.
Be conscious of maintaining eye contact. This is natural in the courtroom, but looking into the camera—which should be eye level to avoid distortion—on your computer may take conscious effort.
These considerations apply to motion argument hearings. If an evidentiary hearing is held remotely, counsel need to address carefully how exhibits will be handled and how witnesses will participate and be sworn. Witnesses will need to be prepared for testifying in this electronic courtroom and need to be comfortable doing so. They likely will need to be rehearsed so they make their best presentation. Section § 6.7.4 provides some parallel guidelines.

§ 14.5 Post-Argument Briefs

Supplemental briefs may be necessary to provide the judge with some additional legal authorities, analysis, and citations. Post-argument briefs should be limited to new matters that arise during the argument, and not to satisfy the urge to have the last word. The attorney who receives a supplemental memo will be able to submit a post argument reply memo. Typically, a judge establishes deadlines for the brief, for example, ten days for a supplemental brief and another ten days for a reply brief. Or, perhaps the judge needs written comments from counsel regarding a recent development, and a short email or letter from the lawyers will be adequate.

Recording oral argument—if permitted—can ensure an accurate transcript of the judge’s concerns, allowing attorneys to focus post-argument briefs only on requested issues. LLMs can process those audio files into transcripts, identify key judicial inquiries, and suggest the most-relevant legal authority. GenAI can then generate structured outlines, when can lead to post-argument briefs that are efficient and precise.

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

You have been requested by Summit Continuing Legal Education to make a presentation at its annual Pretrial Motion Practice CLE Program. Prepare a concise outline regarding the topic:

(A) Effective Presentation of Motions.

(B) Effective Presentation of Facts.

(D) Top Ten Effective Memorandum Drafting Techniques.

(E) Top Ten Effective Brief Writing Techniques.

(F) Top Ten Effective Oral Argument Techniques.

(G) Effective Ways to Conduct Remote Video/Audio Hearings

(H) The current impact of AI on Pretrial Practice.

(I) The future impact of AI on Pretrial Practice.

Plan a memorandum in support of or in opposition to a motion assigned by your professor.
Outline a memorandum in support of or in opposition to a motion assigned by your professor.
Draft the memorandum in support of or in opposition to a motion assigned by your professor.
Edit the memorandum drafted by your classmate and provided to you by your professor.
Edit the memorandum provided by your professor.
Plan an oral argument in support of or in opposition to a motion assigned by your professor.
Outline an oral argument in support of or in opposition to a motion assigned by your professor.
Write out an oral argument in support of or in opposition to a motion provided by your professor.
Critique the outline or content of the oral argument provided by your professor.
Plan a list of guidelines for judges and lawyers to use for remote video/audio hearings.
Memorandum Assignment:

Memorandum Draft

UNITED STATES DISTRICT COURT DISTRICT OF MITCHELL

First Division

Martha Giacone, et al.,	)
Plaintiffs,	)
vs.	)
City of Mitchell, Mitchell Municipal	)	MEMORANDUM
Water Department, State of Summit,	)
State Public Utility Commission,	)
Defendants	)
Defendants State of Summit and Public Utility Commission bring this motion to support their motion that this Court dismiss Plaintiff’s pretended Complaint because it fails to state subject matter jurisdiction and a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12.

The Plaintiff’s Complaint alleges four causes of action including two Title 42, United States Code, Section 1983 claims, and two pendent state claims. The federal constitutional claims are based on equal protection and due process violations. The state claims are alleged breaches of contract and the Summit Public Utility Act, Summit Statutes 36.1 et seq.

Defendants submit this motion in lieu of an Answer responding to the Complaint.

ARGUMENT

PLAINTIFF’S COMPLAINT SEEKING MONETARY DAMAGES SHOULD BE DISMISSED BECAUSE OF THE ELEVENTH AMENDMENT.

Plaintiff seeks money damages from the Defendants. Such money claims are barred by the Eleventh Amendment, which provides that no State shall be sued without its express permission. *See, e.g., *Clark v. Barnard, 108 U.S. 436, 447 (1883). In Hans v. Louisiana, 134 U.S. 1, 21 (1890), the Supreme Court reviewed this Amendment and interpreted it broadly, holding that a federal court could not entertain a lawsuit brought by a citizen against his own state.

Obviously, the Defendant State of Summit is a state of the United States and falls within the protective ambit of the Eleventh Amendment. The Public Utility Commission is a creature of the State, having been created by Article XVII, Section 4 of the Constitution of the State of Summit. The Public Utility Commission is an instrumentality of the State. Summit Statute Section 36.2 states that all immunities reserved to the State are reserved to the Commission making it completely immune from federal litigation. While there has been no holding by the Federal Circuit Court of Appeals in this District, other Circuits have upheld similar state institutions to be immune from money damage claims. E.g., Pediatric Specialty Care, Inc. v. Arkansas Department of Human Services, 443 F.3d 1005, 1017 (8th Cir. 2006). Congress did not enact Section 1983 to override the Eleventh Amendment. *See, *e.g., Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000).

It is clear that States are absolutely immune from 1983 actions. Quern v. Jordan, 440 U.S. 332, 343. The scope of the protection afforded States is well settled. No retroactive monetary relief can be obtained against a state, or even state official or agencies. Edelman v. Jordan, 415 U.S. 651, 659 (1974). There is no federal case allowing a plaintiff to recover money damages against a State or its instrumentalities, in a situation anywhere similar to the claims presented by the Plaintiff in this case. Plaintiff alleges no other federal constitutional or statutory claims, and their allegations that this Court has jurisdiction pursuant to 28 U.S.C. sections 1331 and 1343 are inaccurate and wrong.

THE PENDENT STATE CLAIMS MUST BE DISMISSED BECAUSE NO INDEPENDENT GROUNDS FOR FEDERAL JURISDICTION EXIST IN THIS CASE AND THERE THUS IS NO GROUND FOR THIS COURT TO EXERCISE SUPPLEMENTAL JURISDICTION.

The two state claims asserted by the Plaintiff must be dismissed by this Court because of the holding of the United States Supreme Court in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101–02 (1984). In Pennhurst, the Court held that state officials who violated state laws in carrying out their official duties are protected by the Eleventh Amendment from relief that seeks money damages as well as declaratory and injunctive remedies. This decision applies with equal force to this case, requiring this Court to dismiss all state claims against the Defendants.

Further, there is no private cause of action specifically provided in Summit Statutes Sections 36.1 et seq., the basis of the pendent state claims. If any utility user has any private remedy under Chapter 36 that decision should first be reviewed by the Summit Supreme Court as a case of first impression. This federal Court should not determine this issue under the doctrine of comity.

NO STATE OFFICIALS WERE INVOLVED IN THIS CASE, REQUIRING THE CLAIMS AGAINST THE STATE TO BE DISMISSED FOR THIS INSTANT REASON.

Only city employees and officials were involved in this case. No agent of the State of Summit was involved. No agent of the State Public Utility was involved. Paragraph 6 of Plaintiff’s Complaint alleges that the State Public Utility Commission reviews and approves the termination procedures adopted and used by the City of Mitchell. The correct facts, explained in the affidavit of Johanas Montague, the State Public Utility Commissioner, is that the state department accepts for filing copies of termination procedures used by municipal and public utilities. Neither the State nor the Public Utility Commission approves the regulations. There is absolutely no control exercised by the State or the Commissioner regarding the individual termination policies of utility companies.

In this case no state agent or employee knew the plaintiff, was involved in any decision to terminate her service, or terminated her service. See Affidavit of Johanas Montague, attached to this Memorandum. As a matter of law, the city employees and agents are not state officials. State officials may be enjoined in their official capacity from violating the constitutional rights of a Plaintiff and prospective injunctive relief may be obtained against those state officials. *Ex parte *Young, 209 U.S. 123, 156–57 (1908). But that is not the case here. The law of the forum state, Summit, applies in this case.

In Sams v. Zeliski, 346 Sum. 272 (1985), the Summit Supreme Court held in a tort negligence case that the acts of a municipal employee were not acts attributable to the state. There is nothing in the facts of this case, nor the law, that converts the city employees in this case into state actors.

For all these reasons the Defendants respectfully request that this Court dismiss all claims against them.

TERRI SHAWNBAUER

[email protected]

#98765

605.294.4535 Office of the Attorney General State of Summit State Capitol Building Mitchell, Summit 60601

(a) Critique this Memorandum. What could defense counsel have done to more effectively present the position of the State? You need not do any legal research.

(b) Redraft this Memorandum. Assume an associate in your firm drafted this memo and submitted it to you, before it was served and filed, for your comments and critique. Do not do any legal research, unless directed to by your instructor.

You represent Martha Giacone and receive the above memorandum. You need not do additional legal research, unless directed to by your professor.

(a) Plan a response to the memorandum.

(b) Outline a response to the memorandum.

Critique the following motion argument. What could defense counsel have done more effectively to represent the position of the College of Law? What could counsel for plaintiff have done more effectively to represent the plaintiff’s position? Further assignments appear at the end of this transcript.

Motion Hearing Transcript

Judge:	The next motion is, ah, Birk v. Summit College of Law. Appearances?
Wandell:	Your honor, I represent the defendant.
Judge:	And your name is?
Wandell:	Dominique Wandell.
Judge:	Your Honor.
Wandell:	Yes, Judge, your Honor.
Gara:	And I am Alexus Gara, your Honor, representing the plaintiff in this case and opposing this motion.
Judge:	Very well, proceed counsel.
Wandell:	Your Honor, the defendant . . .
Judge:	Up here at the lectern, Counsel.
Wandell:	Yes . . . Your Honor, the Defendant in this case is the Summit College of Law. We are bringing a Rule 12 motion to dismiss Plaintiff’s complaint for failure to state a viable cause of action before this court, in this jurisdiction. Specifically, the defendant Law School contends that it has no obligation to provide a due process type hearing to the plaintiff in determining whether the plaintiff did or did not deserve tenure and, secondly, that the procedures provided the plaintiff, a hearing by the faculty, was sufficient to provide plaintiff with a full and fair opportunity to contest the allegations against her in her seeking tenure.
	To the first point. The defendant institution is not a public university or anything like that. It is a private institution of the highest learning and has unfettered discretion to establish reasonable policies concerning the hiring, retention, and tenure of its faculty. The plaintiff in accepting employment at Summit College of Law agreed to be bound by the procedures and policies of the College. She cannot now claim they are improper or unreasonable because she agreed to abide by those same policies and procedures. The law is quite clear in this area. The cases are legion which support this position. For example, the Supreme Court of Coastland has held in Formath v. Pigmalion College of Fine Arts at 376 C.2d 764:
	The claims of the Plaintiff are meritless when directed toward this Defendant. The Plaintiff who seeks reinstatement as a faculty member has no right to pursue such a claim against a private institution. Pigmalion has established regulations which govern reinstatement. The Plaintiff is bound by these regulations. This holding clarifies and reaffirms our decision in Bjorke v. Rasmussen Business College, 309 C.2d 352.
	And so Your Honor . . . by the way, our brief provides a listing of other decisions which say the same thing.
Judge:	Do you cite any case from this jurisdiction?
Wandell:	Yes, Your Honor, we do on page . . . 11, no 13 . . . yes, here, actually the citations from this jurisdiction involve cases involving public institutions and not private institutions. There appears to be no case which has required private institutions, that is, has held private institutions to the same standards or requirements that public institutions have been held to. And that lack of authority provides the plaintiff with no cause of action against my client. May I continue, Your Honor?
Judge:	Do I understand that the Summit Supreme Court has yet to consider a case involving the facts in this case?
Wandell:	Well, basically Judge, the cases that the Supreme Court has considered have involved the denial of tenure of faculty members, but have not involved a private institution like Summit College of Law. It is explained in detail in our brief.
	Now, moving on to the second part . . . point. Summit College of Law carefully and reasonably determined that plaintiff did not meet the criteria required to receive tenure and provided her with a fair hearing to challenge that decision. The provisions of the College’s tenure policy are set forth in the Faculty Manual attached to the affidavit of Dean Groll submitted in support of this motion. Those procedures specify the criteria that a faculty person must meet to receive tenure. A vote of the tenured members of the Summit faculty determined, after detailed consideration, that the Plaintiff did not meet those standards. She then had an opportunity to again present her case to the Dean who agreed with the determination of the tenured faculty.
	This case is a relatively straightforward case, Your Honor. It is quite clear that the plaintiff has absolutely no valid claim to assert against the defendant and we submit that you have no choice but to dismiss this motion pursuant to Rule 12.
Judge:	Counsel, by my consideration of the affidavit of Dean Groll, does not that consideration transform the Rule 12 motion into a Rule 56 motion for summary judgment?
Wandell:	I don’t think so, Judge. You don’t need to even rely on the affidavit. The tenure policy of Summit was mentioned in the plaintiff’s complaint and you need go no further than reviewing that pleading to decide this motion.
Judge:	Why then did you provide an affidavit?
Wandell:	That point is addressed in our brief Your Honor. But, basically, well, it is detailed why in the memorandum. Do you want me to find that part, Your Honor?
Judge:	No, that’s o.k. for now. Counsel, you may proceed.
Gara:	The plaintiff, Beverly Birk, opposes this motion for several reasons. The complaint does state a claim on which relief can be granted. Count I of the Complaint states that the defendant has breached its employment contract with Professor Birk. Paragraph 3 alleges that the College of Law failed to follow the explicit provisions of its contract with Professor Birk in denying her tenure. Count II of the Complaint states that there exists an implied covenant in the employment contract which permits Summit College to deny tenure only for reasonable cause, which covenant the College breached in this case. The defendant admits that this second claim presents an issue of first impression before the courts of Summit. The facts of the complaint read in a light most favorable to the plaintiff clearly and forcefully allege two claims for which injunctive and monetary relief, as requested, can be provided by this Court.
Judge:	What implied covenant do you claim was breached in this case?
Gara:	The implied covenant of good faith and fair dealing. It is the plaintiff’s position that the defendant, her employer, cannot arbitrarily or without good reason fire her. They have in this case and that clearly provides her with a claim against them. The Supreme Court of Summit in two cases has implied this covenant in other contractual relationships. In Furth v. Allied Products, a consumer sued a retailer for breach of a retail installment contract, among other claims including fraud. The Summit Supreme Court held that the defendant retailer owed a duty of good faith dealings toward the consumer which arose from their contractual relationship. Four years ago, in Ogala Realty v. Ching Enterprises, the Supreme Court applied the Summit Commercial Code statutory standard of good faith dealings between merchants codified in Summit State’s Statutes Section 332–104 to a contract for the sale of commercial equipment. The plaintiff submits that these two cases provide by analogy an obvious viable claim for the plaintiff in this case.
Judge:	How do you respond to the Defendant’s position that because Summit College of Law is a private and not a public institution it should be dismissed from this case?
Gara:	First, Your Honor, the defendant’s position seems to be based on the premise that the complaint alleges constitutional claims, which it does not. And secondly the status of the College of Law, whether public or private, does not alter its contractual obligations towards the plaintiff.
Judge:	Surely you don’t suggest that a private institution cannot fire its faculty because of economic reasons. What if enrollment drops and it cannot afford to pay faculty?
Gara:	Those facts are not before this Court in this case, Your Honor. The plaintiff does not challenge the defendant’s right to terminate professors because of financial exigency. The precise reasons why plaintiff was terminated in this case are unclear at this stage of the litigation. We have noticed a motion for this hearing which we will address after this motion has been argued which seeks a court order requiring the defendant to disclose information about the tenure committee meeting and the votes of individual faculty at that meeting to clarify who voted based on what reasons. Without that information this Court cannot decide the propriety of defendant’s motion to dismiss, which should be denied, at least, because it is premature.
Wandell:	Your Honor, excuse me, that is a preposterous argument. It is quite clear that in this state that information is privileged and not obtainable.
Judge:	Let’s consider that motion now. Counsel, present your argument.
(a) Critique the presentation by both lawyers. What did they do well? How could they have been better? What would you have done differently?

(b) What questions could the judge have asked to clarify the issues? How would you resolve this defense motion?

(c) Regarding the plaintiff’s motion, rely on the materials in Chapter 5, § 5.5, on privilege law. Summit has not previously declared tenure proceedings and faculty tenure votes privileged information.

(1) You represent the plaintiff Birk.

(a) Plan an argument in support of your motion.

(b) Outline an argument in support of your motion.

(2) You represent the Summit College of Law.

(a) Plan an argument in opposing the motion.

(b) Outline an argument opposing the motion

Visit your local courthouse and observe lawyers conducting motion arguments. Evaluate their performances:

(a) How well prepared do they appear to be?

(b) What are they doing effectively?

(d) How well are they responding to questions from the judge?

(e) Do they appear to have anticipated the questions?

(f) List at least three things you have learned from your observations.

(g) If you could critique them, what would you tell them to do differently next time?

Conduct internet searches for websites containing motion hearing arguments. Some states have appellate court websites that contain appellate oral arguments. You can watch, listen, learn from, and critique these lawyers. Have fun.