In contested litigation, there is the regular cut and thrust of motion practice. Many motions are routine and administrative. Others are dispositive. We spend substantial time evaluating the cost/benefits of our motions but little time evaluating proper responses to our adversaries advances. While it is prudent to consider the outcome and consequences of any motions we file, it is counterproductive to ruminate on the consequences of the opposing parties’ motions. Instead of brooding about a possible negative result, get to work!
Get a plan.
Develop a protocol for opposing party motions. First, determine the efficacy of the motion. Does the court have subject matter jurisdiction to grant the relief? Are the facts or allegations accurate? Deconstruct the motion for its basic validity. Determine if the motion seeks procedural or substantive relief and investigate options concerning a response (answer, motion to strike, motion to dismiss based upon subject matter jurisdiction, etc.).
Does the motion rely upon statutory or rules based relief? If so, review the rules or the statute. While this seems rudimentary, we sometimes take for granted the provisions of frequently used statutes, and a refresher is always helpful. In that regard, periodically review the court rules (both at large and local) to ensure compliance.
Evaluate the accuracy of the facts underlying the claim. If the facts are inaccurate, how can you disprove them? Research the facts as well as the law. Consider what information will be necessary to counter inaccurate facts.
Consider the form of the response. Is a routine admit/deny format appropriate? Is affirmative relief requested? How can the response be drafted in a manner that is both consistent with the rules and persuasive? Is a narrative preface permissible and advisable. Consider the response an opportunity to advocate, like in all other aspects of the case.
A helpful checklist.
Upon receipt of the motion (rather than the day before the hearing) determine what will be necessary to both respond to the motion as well as prevail. Consider the following checklist:
Notify the client of the receipt of the motion.
Diary the date the matter is noticed for hearing. Determine and address any scheduling conflicts immediately.
Line up any necessary witnesses.
Determine the legal viability of the requested relief. Research statutory and case law.
Consider whether the motion is subject to attack on legal grounds.
If a written response is necessary and/or appropriate, diary a production appointment with yourself to draft the answer or motion. In that regard, schedule time for preparation before the hearing.
Determine if an affidavit or other factual averment in a responsive pleading will be necessary. If so gather the necessary facts.
Gather any necessary exhibits. If the motion will be evidentiary, determine foundations and admissibility.
Would a phone call resolve the matter? Is the motion based upon mistaken premises?
What opportunities will defense of the motion present for advancing either your legal theory or your the case theme.
Don’t react, respond.
While we can control what leaves our office, what we receive from our opponent is outside of our control. This fact creates a sense of insecurity. Sometimes we react with righteous indignation, other times with irony or amusement. Often we sublimate our fear at the possibility of a negative development in the case. But litigation, like life, goes better when we focus on the present and what we can control (rather than future outcomes typically out of our control). Just as a past focus leads to depression, a future focus leads to anxiety. Instead of agonizing over receipt of an opposing party motion, dissect it, develop a plan, and finally deliver a response.