Motion practice is the bread and butter of a law practice. The bulk of a courtroom lawyer’s life is spent arguing motions rather than presenting evidence at trial. While motion practice does not have the gravity of a final trial, motions more often influence ultimate outcomes. Many CLE programs emphasize trial skills for practitioners, but they rarely speak to this stepchild of trial advocacy. This article looks to fill that gap and provide insights into effective motion practice for family lawyers.
When presenting a motion, a lawyer must convey the message quickly, clearly, and persuasively. In order to do this, consider the following sequence:
1.) State the reason you are before the Court. Give the court a context right off the bat. Frame the issue. For example, “we are here seeking an order of temporary support, Mr. Smith refuses to contribute any support for Mrs. Smith’s discretionary expenses. It is appropriate to do so here.”
2.) State what you want. “We are seeking an order for temporary support in the amount of $10,000 per month.
3.) Provide the legal authorities. “We are proceeding under Section 501 of the Illinois Marriage and Dissolution of Marriage Act, which permits the court to award support based upon the parties respective needs and abilities to pay.
4.) Demonstrate the facts necessary to achieve what is sought. “Here, Mr. Smith’s financial affidavit discloses a surplus of income beyond fixed expenses of $15,000 per month. The parties lived a comfortable, if not extravagant, lifestyle during the marriage including expensive travel, luxury vehicles, fine dining and country clubs.”
5.) Argue why your request is fair under the circumstances. “$10,000 is a fair sum here. Mr. Smith has the ability to pay that amount, which meets Mrs. Smith’s needs based upon the family standard of living during the marriage. She should be able to live during the case in a manner commensurate with that marital lifestyle.”
These five steps may be employed for any type of motion, whether procedural or substantive. This sequence can also be used when defending a motion. When defending, start by first framing the issues persuasively, “This case is not about reasonable financial needs as suggested by Mr. Jones, it is about prioritizing family resources.” Don’t just jump on the remarks by the moving party in a reactive manner. Reframe the issues advantageously before you start.
Be clear and specific about what you want from the court. Lawyers often start the journey without first knowing their destination. Make sure you are clear in your own mind about what you are seeking and communicate that early in your presentation. As an alternative, at the outset, present a proposed written order to the judge with your specific request and any findings you are seeking. By doing so, you have an outline to argue from and the court has a visual aid to reference throughout your presentation. And frankly, a busy judge may just sign the proposed order to more quickly get to the next case on the docket!
Where the motion hinges on legal authorities, bring copies of the cases or statutes highlighted for the judge’s ease and convenience. Be honest about any adverse authorities and be prepared to distinguish them. Take the opportunity to preemptively distinguish adverse law if you present first. Likewise with bad facts, confront them directly. Don’t ignore any of your problems as your opponent assuredly won’t.
When referencing any documents make sure you have copies for the court, highlighted where appropriate. Use summaries or demonstrative exhibits to help streamline the presentation. As noted above, judges are pressed for time during routine motion calls and will appreciate anything to make the information more accessible and understandable. It will also enhance the argument.
Maintain eye contact with the judge throughout the argument. Speak slowly and clearly to lucidly convey the argument. Incorporate interesting language and emphasis to enliven the argument. Also vary your presentations. I know a lawyer who villanizes the opposing party in every one of his motions, regardless of the circumstances. I commented during one such argument that “if everyone is a villain, nobody is.” The Judge nodded and smiled, acknowledging that I made my point.
In deciding any matter, a judge is focused on doing what’s fair. Bait the hook for the fish rather than yourself or your client. Appeal to the judge’s sense of fairness rather than grandstanding for a client or mugging for spectators in a crowded courtroom. And maintain your composure. While “fist-pounding’” sometimes has its place in court, it should be the exception, not the rule. As Judges John Madden and Michael Washington lectured to students at the Family Law Trial Advocacy Institute several years ago, “if the lawyer is angry the judge doesn’t need to be.” If you are seeking righteousness, present the facts in a persuasive way to invoke that sentiment from the judge. Except in highly unusual circumstances, leave the anger out out of the presentation. Reasoned arguments are much more persuasive than snarky or angry diatribes.
While as competitive advocates we obviously want to win the motion, don’t tie yourself up in knots worrying about the outcome. As Martial Artist and philosopher Danielle Boleli observed:
“I don’t think too many human beings are naturally above caring about victory and defeat. It’s imprinted in us to care about the outcome of our actions. While this may be natural and normal, the problem is that we can never fully control the outcome. Usually, in life there are too many variables at play. So, no matter how mightily we strive or how intense our effort, odds are that at least some of the time we will come up short of our goals. And what makes things even more complicated is that the more attached you are to the outcome, the more tension and fear you will experience at the thought of possibly facing a crushing defeat—which reduces our effectiveness, since part of our energy is trapped in the jaws of fear.”
Relax, do your best and don’t worry about the outcome. It is outside of your control. I like to think of any legal argument as a relay race. Our leg of the race is to compile the facts and the law, frame the issues, and argue why it is the right thing for the judge to do. We then pass the baton to the court to finish the race. At that point, the race is out of our hands and we need to just wait for the ruling and plan from there.
Lawyers should treat motion practice with the same respect that they do a trial. Prepare early and properly. Aim for a target. Know your facts and the governing law. Cater your argument to your judge and her proclivities. By doing so, you will increase your effectiveness in this underappreciated yet vital aspect of a family law practice.