Motions and Hearings
Forcing Judges to Act
Move the Court!
The goal of every case is a court order.
There's no purpose for court proceedings other than getting court orders.
But! Judges rarely sign orders until moved to do so.
Motions are not pleadings. They are not prayers. They are not requests. They are motions.
They direct the court to grant some result that the law or rules require. If the law or rules require the judge to grant the motion, then the judge must grant them or be appealed!
You don't beg for orders. You move the court.
You don't pray or apologize. You move the court.
Everything you've learned so far is useless, until you know how to force judges to grant your motions and sign the orders you need to win.
So, let's get moving!
Spoken Motions
In the heat of battle on your feet in the courtroom, you speak motions.
“I move the court to order my opponent to stop chewing gum. It's distracting my witness.”
Yes. You can make such a motion! It may not be granted, of course. Neither the law or the rules may require the judge to grant a motion to order someone to stop chewing gum. But, you can move the court to order anything you wish. You can invent motions nobody has yet heard of. Doesn’t matter if it’s never been done before. You’ve never fought for justice on your own before. This is your case. You aren’t working from a form book like stupid lawyers do. You aren't afraid to try something new for fear of upsetting the judge or getting disbarred. You're a pro se litigant fighting for Justice without a lawyer.
Be creative. Move your case forward with motions. Compel the judge to enforce the law and rules!
“I move the court to disqualify my opponent’s expert witness. She's a math teacher, not a forensic scientist as my opponent unfairly is trying to make the court believe." (Notice the word “order” is not part of that motion. It’s clear from the context that an order is the motion's goal.)
“I move the court to take judicial notice that 17 October 2023 was a Tuesday.”
Spoken motions are sometimes called viva voce motions, which is Latin for “by voice”. No big deal.
Written Motions
Written motions are not more complicated.
They do the same thing as spoken motions but should follow a format generally used in courts.
Here’s an example.
IN THE THIRTIETH JUDICIAL CIRCUIT COURT
IN AND FOR SUNSHINE COUNTY, FLORIDA
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT,
Defendant.
____________/
Case No. 2012-123
Judge Benchpounder
MOTION TO RECUSE
PLAINTIFF Peter Plaintiff moves this Honorable Court for an Order recusing the assigned judge and assigning a new judge, stating in support:
1. Judge Benchpounder has an economic and family relationship to the defendant.
2. Judge Benchpounder is defendant's uncle.
3. Judge Benchpounder owns shares of a corporation in which defendant is controlling shareholder, director, and chief executive officer.
4. Judge Benchpounder has an impermissible interest in the outcome of this case.
WHEREFORE plaintiff moves this Honorable Court to enter an Order disqualifying and recusing Judge Benchpounder and appointing a disinterested judge having jurisdictional authority to rule in this proceeding.
RESPECTFULLY SUBMITTED this ___ day of ____________ 2013.
Peter Plaintiff, Plaintiff
[ Certificate of Service ]
The caption is the same as with pleadings. The title and preamble tell what the motion seeks. The numbered paragraphs set out the essential facts in support. The WHEREFORE clause clarifies what the order needs to say. The signature is obvious, and the certificate of service assures the court that the motion was provided to the opposing party.
Here is an example citing appellate court opinions in support of a motion to reconsider.
IN THE THIRTIETH JUDICIAL CIRCUIT COURT
IN AND FOR SUNSHINE COUNTY, FLORIDA
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT,
Defendant.
____________/
Case No. 2012-123
Judge Benchpounder
MOTION TO RECONSIDER
PLAINTIFF Peter Plaintiff moves this Honorable Court to reconsider and rescind its Order of 30 April 2021 granting defendant's motion for summary judgment and states:
1. There remain on the record of this action genuine issues of material fact that should preclude entry of summary judgment.
2. "Summary judgment should not be granted until the facts have been sufficiently developed to enable the court to be reasonably certain that there is no genuine issue of material fact." Epstein v. Guidance Corporation, Inc., 736 So.2d 137 (Fla. 4th DCA 1999) citing Singer v. Star, 510 So.2d 637,639 (Fla. 4th DCA 1987).
3. Plaintiff alleged in the complaint that defendant unlawfully deprived plaintiff of the use of plaintiff's strawberry delivery truck for a period of 24 months (from 1 April 2019 through 31 March 2021) causing plaintiff's strawberry farm to lose substantial income due to inability to timely deliver strawberries to plaintiff's customers.
4. The foregoing constitutes a genuine issue of material fact.
5. The foregoing issue goes to the heart of this controversy.
6. The foregoing issue has not yet been adjudicated by this court.
WHEREFORE plaintiff moves this Honorable Court to enter an Order rescinding its Order of 30 April 2021 nunc pro tunc and permitting plaintiff to continue with discovery and to proceed to trial, granting such other and further relief as the Court may deem reasonable and just under the circumstances.
RESPECTFULLY SUBMITTED this ___ day of ____________ 2021.
Peter Plaintiff, Plaintiff
[ Certificate of Service ]
There are exceptions to the foregoing general rule. Some state court motions may be ruled on without a hearing. Some federal court motions require a hearing. However, in general, the rule applies. In the following pages we explain what you must do to get a favorable judgment in both state and federal courts.
In state court (for the most part) if you want a judge to rule on a motion (yours or the other fellow’s) you’ll probably have to set the motion for hearing. You can set your own motions or the other side’s motions for hearing but (with few exceptions) if you don’t set state court motions for hearing they may never be ruled upon.
[How to set hearings is explained later in this class.]
Failure to follow the simple rules for motions and hearings is the reason many people with winnable cases end up losing.
In federal court (with few exceptions) if you’re the moving party (“movant”), instead of arguing your motion at a hearing, you argue by filing a memorandum in support of your motion. The motion tells the court what order you want the judge to enter on the books. The memorandum tells the court why the judge should enter the order, explaining the legal and factual basis for your motion and the order you seek. Then the non-moving party files a “response” memorandum in opposition to your motion, arguing the legal and factual reasons why your motion should be denied.
It’s no more difficult than that.
Making motions by themselves (in state or federal court) is not enough.
Until a judge rules on your motion by entering an order, your motion (or your opponent’s motion) simply takes up space in the court’s file cabinets.
It’s up to you to get your motion ruled upon (yours or the other fellow’s).
This is usually at a hearing in state court (where both sides have an equal opportunity to argue for and against) or in federal court after the judge has time to read and consider your motion, your memorandum in support, and the opposing party’s response memorandum in opposition.
In the pages that follow we explain motions and hearings (both state and federal) and how to use them effectively to win!
Once you understand the general principles we set out for you in this class (and familiarize yourself with the official rules that control your local court) you’re on your way to winning with or without a lawyer!
The Right to be Heard
An ancient maxim of law states simply, “A judge who rules without first hearing both sides, though his judgment may be just, is not himself just.”
Justice implies this essential right to be heard.
One might rather say, true justice requires the right to be heard. The court should give both parties an equal opportunity to present the facts and law on which the court is required to rule with regard to those facts. Each side has a different point of view, but both are given an equal chance to argue their case free from the court’s prejudice or penalty.
Anything less is, well, un-American!
But!
Simply arguing to a judge that your “constitutional rights have been violated”, and expecting such a simplified argument to cause the court to do anything at all in your favor is a total, complete, absolute waste of time … no matter what anyone tells you to the contrary.
Courts don’t operate that way nor should they.
Courts act on pleadings and on motions that move the court to enter orders (usually after a hearing where both sides argue their motions in person or after the court has read and considered written motions supported by memoranda and responses in opposition, as explained more fully later on in this amazingly valuable class).
The average courtroom is witness to dozens of complex and sometimes heated legal arguments in the space of an average day. The typical judge reads hundreds of pages of pleadings, motions, notices, and memoranda between the time he arrives at the courthouse in the morning and when he finally heads home at the end of the day. Multiply this judicial workload by the number of judges in a typical courthouse, then multiply by the number of days in a year, and you quickly realize why there must be order in the court.
Courts have strict rules that govern everyone, giving each person the right to put forth his arguments succinctly (and, as the litigant hopes, convincingly) while the court tries to pay attention to both sides and render fair judgments in accordance with the court’s rules and established protocols.
Your “right to be heard” doesn’t mean the right to yell back-and-forth like feuding hillbillies. [I was born in the “almost Heaven” state of West Virginia where, in the days of my youth, it was not uncommon to see rusty old cars propped up on wooden soda bottle cases in the front yards of coal miner shacks, slow-talking farmers punctuating colorful speech with a chaw of Red Man tobacco in their cheeks, and weary wives in gingham bonnets plowing cornfields behind mules. My reference to “hillbillies” is with affection, however hillbilly arguments don’t win court cases.]
Arguments outside the courthouse are not controlled by rules of procedure or rules of evidence.
Inside the courtroom everyone is expected to act with dignity and decorum. One hopes people would be civil with each other at home or on the golf course or baseball field, but in the courtroom civility is imposed by law! Violators can suffer serious adverse consequences.
Arguments in court are presented with pleadings and motions, sometimes amplified by memoranda or persuasively polite presentations at hearings or at trial never by raising one’s voice or making offensive comments about the opposing party or attorney. There’s absolutely no tolerance for rudeness. Bad behavior always works against you.
Pleadings state what a case is about. Complaints state what plaintiffs want. Answers state why defendants should not be required to pay. Counterclaims, cross-claims, third-party complaints, affirmative defenses, and replies (explained in other tutorials in this course) are pleading variations of the basic complaint and answer. Pleadings tell what parties are fighting about.
Motions, on the other hand, state what orders a party wants the court to enter.
Some examples are:
These, of course, are just a few of the more commonly encountered motions. There is no limit (other than reasonableness and the general requirement to stay within the rules of procedure and rules of evidence) to what a motion can move a court to do. If a disabled person needs special assistance because of a physical handicap, she can move the court to allow her seeing eye dog into the courtroom. Or, if one is hypersensitive to heat or cold he might move the court to adjust the courtroom thermostat. This doesn’t mean the court will necessarily grant such motions. Motions are as often denied as granted. The point we wish to make is that one may move the court to do nearly anything that is reasonable and within the rules of procedure and evidence. Getting judges to grant our motions (or deny those filed by our opponent) of course, is another matter covered more completely in the pages that follow.
In the typical lawyer’s library (or average law library at your local courthouse, law school, or university) are “form books” with page after page of standardized forms for various types of motions, pleadings, and other papers. Though these books may be useful for novices, they don’t include all possible motions one might make in the course of a single lawsuit. They’re only a guide to get you started.
One such form book used by Florida lawyers was written (and revised many times) by a very fine attorney by the name of Henry Trawick. His book is so often used by lawyers in Florida, that most refer to it merely as “Trawick’s” and consider it the bible of motion practice an excellent guide to help lawyers get started drafting various motions for various purposes, but not an exhaustive compendium of all possible motions.
Many years ago, in a complex case involving widely divergent positions on the facts and law, I filed a unique motion for which there was no “standardized form” in the books. The young lawyer for the opposing party objected saying, “I move to strike Mr. Graves’ motion!”
The court inquired, “On what grounds?”
The young fellow replied, “There is no such motion.”
“Oh?” the judge responded, peering over his bifocals with a covert smile in my direction, “How is that, counselor?”
“I went through Trawick’s form book cover-to-cover,” the young lawyer replied. “That motion does not exist.”
The judge denied the young lawyer's motion. Failure to appear in a form book doesn’t make a form invalid if it’s properly framed and conforms to the rules in other aspects (as mine did in this case).
You can move the court to do almost anything, so long as your motion is made to move the case forward without causing confusion, delay, or prejudice to the other side.
If you have access to form books for the jurisdiction where your case is pending (in addition to our excellent class Forms) by all means use them, but the examples are merely offered as a guide. No two cases are the same. Facts are never identical. Laws apply differently to different facts. Form books are intended only to help with commonly filed forms. Be creative.
Never use fill-in-the-blank forms!
To imagine you can win a contentious lawsuit by filling the blanks on pre-printed forms is foolish.
Lawsuits are knock-down, drag-out battles in which every party suffers some degree of damage. They are verbal warfare. The party who knows best how to move the court wins!
Motions in General
Every well-stated motion seeks one thing and one thing only a court order!
The singular purpose of every motion is to get the judge to enter an order.
If a motion doesn’t move the court to enter an order, it is improperly stated.
Many experienced lawyers write motions that begin like this:
COMES NOW the plaintiff, by and through her undersigned attorney, and prays this Honorable Court will compel the defendant to produce the records plaintiff previously requested, stating in support: blah, blah,
This is a “prayer”, not a motion. It doesn’t “move” the court at all. The example merely “prays” the court will do something. Though frequently seen in papers filed by experienced lawyers, it is nonetheless improper.
We don’t “pray” to judges. We “move” them!
Only obsequious lawyers “pray” to judges. (Political climbers who’d rather sell their clients down the river than stand up to a judge who disobeys the rules.) Though a prayer is not a motion, most judges treat them as motions. This is not good practice.
Move the court to get the orders Justice demands! Anything less isn’t good enough.
When we want a judge to order someone to do something, we don’t ask the court to “compel” them, we don’t “pray” the court will compel them, and we certainly don’t beg the court to do anything whatsoever. We move the court to enter orders that command people to do what we want.
When a court enters an order commanding someone to do something, that person is then subject to the penalty of being held in contempt if he disobeys. If one is found in contempt of court he may (1) be fined, (2) lose by default, or (3) be hand-cuffed and taken to the jailhouse where he may remain behind bars until he decides to obey the court’s order.
That’s why we move courts for orders commanding people to do what we want. It is the court’s contempt power that gets things done. Courts can order Sheriffs (state court) or Federal Marshals (federal court) to put people in jail or take their property and sell it if they don’t obey a court order!
This power belongs to YOU! It is the power you seek when you file a lawsuit as plaintiff and the power you rely upon when you are sued by someone, because it is the power of the court to enforce Justice! Jail time (or worse) is the power within the judge's pen!
It isn’t paperwork that makes the system function. It isn’t the judge banging his gavel on the bench. It isn’t the flag in the front of the room or the high ceilings or the black robe.
It’s the contempt power of judges to enforce their orders with handcuffs, firearms, and jail cells.
Motions move the court to enter orders that command people and carry with them the penalties of contempt for those who refuse to obey.
This is how you enforce your God-given rights in this country.
Move the court!
Spoken Motions
Spoken motions are sometimes called “via voce” from the Latin “by voice”. Via voce motions are made on-the-spot and are usually ruled on quickly.
One example is a motion to strike damaging testimony that should be excluded for hearsay reasons. You’ve seen many such via voce motions on TV. A cross-examining lawyer demands, “What did your neighbor tell you?”
The witness quickly answers, “She said she saw the defendant enter our backyard and carry away our chickens!”
Counsel for the other side, waking from a day-dream, jumps to his feet, “Motion to strike! Hearsay!”
The court calmly rules, “Sustained.” Motion granted! But, the toothpaste is out of the tube, and you can’t put it back. The jury heard the testimony. The judge may direct the jury to disregard the witness’ statement, but you can’t un-ring the bell. A jury will not disregard what they’ve already heard, no matter how many times the judge tells them they must.
If a via voce motion is not made promptly, the damage may be impossible to repair, and you cannot appeal if the testimony causes you to lose. Every party is responsible for paying attention and acting promptly.
Via voce motions, unlike written motions, must be made quickly. You don’t have the luxury of sitting at your word-processor weeks in advance, researching the law to draft a multi-page treatment of facts and supporting cases and statutes like you do with written motions. A spoken motion, like its near cousin the written motion, must have a sound legal foundation, and that legal foundation must be on the tip of your tongue!
When you make a spoken motion, the judge will ask, “On what grounds?”
If you stand there stammering as you thumb frantically through the rule book for answers, the court will deny your motion. Your motion may be proper. You may make it in a timely fashion. But, if you cannot give a quick response when asked why your motion should be granted, most judges will deny the motion and permit proceedings to continue as if no motion had been made.
Motions may be withdrawn is they are withdrawn before the judge rules on them. Once withdrawn, it is as if they never existed.
The following are examples of via voce motions you can make during trial or hearing:
Once made, a via voce motion becomes a pending motion that requires the court to rule before other business can be taken up. If a judge fails or refuses to rule, make that clear immediately on the record to preserve the issue for appeal.
And, of course, make certain there is a court reporter or official electronic recording so you can get a transcript of the proceedings if appeal becomes necessary!
If the opposing party's lawyer interrupts you while you are speaking (as most lawyers will) move the court to order him to wait until you finish what you have to say. Don't be timid!
Written Motions
Written motions are powerful because you can plan them carefully days or weeks in advance.
You can spend days writing a motion, researching law that supports your motion, reviewing your motion with colleagues to get second opinions before filing it.
In state court written motions may include extensive legal arguments supported by citations to statutes, court rules, constitutional provisions, and decisions of appellate courts that should control the judge (case law). If the motion involves complex issues, however, it may be filed with a separate "Memorandum in Support" containing the legal arguments and citations. The opposing party is not required to file a response (though it's sometimes a good idea to do so).
In federal court motions are usually accompanied by a supporting memorandum, and the non-moving party should always file a responsive Memorandum in Opposition. Motions in federal court should state only what the moving party is moving the court to order, while the movant's Memorandum in Support tells the court why the motion should be granted.
The non-moving party’s Memorandum in Response argues why the motion should not be granted, giving argument and citations to statutes, rules, constitutional provisions, and cases, explaining why the moving party's arguments should be ignored.
No other papers are permitted.
State courts allow memoranda in support of motions (optional with the moving party), while federal courts insist on them. In state court a response memorandum is optional. In federal court it’s mandatory and may be the only opportunity a non-moving party has to argue against the movant’s motion, since most federal court motions are ruled on without a hearing. (That's why this course urges students to file in state court whenever possible and avoid the complexities and delays of federal court procedures.)
In state court, most motions require hearings before the court will rule.
In federal court, the judge eventually rules on motions if he chooses to do so.
Differences between state and federal courts are explained elsewhere in the course.
Content of Written Motions - State Court
Make clear in the first few sentences of your motions what is the legal basis for the order you seek. If it’s a statute, cite the statute and include direct quotes to show the court what it says about the court’s duty to enter the order based on the facts. If the legal basis for an order you seek is case law, cite the case(s) and include direct quotes from the opinion(s) so the court can see how appellate courts have required judges to enter the order you seek based on the facts. There may also be court rules, codes, and constitutional references to support your motion. In every case include direct quotes.
Three authorities is usally enough. Four or more is usually too many.
After stating the legal basis for the order you seek, state all the facts necessary to trigger the command of the statute(s), case(s), or other authority cited and quoted as legal basis for the order you seek. Do not discuss facts that have no direct application. They’ll only get in the way.
Too many words diminish rather than enhance the effectiveness of motions. Judges are busy people. Come to the point. Say no more than necessary. Tell the court in simple terms why the order you seek should be entered.
Content of Written Motions - Federal Court
It isn’t necessary to state in your motions all the statute(s), case(s), and other authorities that support your motion. That’s what your Memorandum in Support is for.
Make crystal clear what order you seek with a detailed statement of the facts but a simple statement of the legal basis and reference to the Memorandum in Support you are filing contemporaneously.
Your motion tells the court what order you want the judge to enter.
Your Memorandum in Support tells the court why it should enter the order.
More is not required.
Memorandum in Support - State or Federal
Your memorandum should clearly reference the motion it is offered to support. This is done not merely by name (e.g., Plaintiff’s Second Motion to Compel Better Answers to Interrogatories) but also by the stating within the memorandum the date when the motion is filed. (e.g., “This memorandum is in support of plaintiff's motion that was filed 17 October 2005.”) Let there be no mistake about what motion you are arguing for with your memorandum.
The memorandum should re-state your motion briefly and argue with citations to controlling authorities with direct quotes from those authorities. Everything in your memorandum should support entry of the order you seek.
If a controlling case reads, “Upon motion of a party, the court must examine the document in camera, ” (i.e., in the court’s private chambers) and you wish the judge to examine some document in camera, then quote directly from the controlling authority so the court has no wiggle room to deny your motion. Make things crystal clear. Assume nothing.
Make it clear by controlling case law that failure to grant your motion will result in the judge being reversed on appeal! They hate that. If you do as this lesson teaches, it's more than likely the judge will grant your motion, rather than risk being reversed on appeal. Judges must obey the law like everyone else.
Make the record clear as to what is the judges’ duty.
Many courts limit the number of pages you may use for a memorandum. There are also paper-size, type-size, and margin-size limits that must be obeyed. Your motion can be denied on technical grounds. Avoid this catastrophe consulting and complying with the official local rules for your court.
Make your memoranda readable and concise. Writing to sound “high-brow” or “scholarly” are far less likely to obtain the desired goal than those that speak plainly. In some cases it’s appropriate to introduce a bit of humor. Most judges are bored by the unimaginative paperwork they must go through on a daily basis. If your papers take some of the hum-drum out of the judge’s job, they will be more favorably received. Highly-technical writing should be avoided.
And, please don’t use words you don’t know nor fail to use your spelling checker.
If your memorandum is difficult to read, your argument will be difficult to follow.
If your memorandum makes the judge smile a little well it can’t hurt!
Memorandum in Opposition - State or Federal
Your Memorandum in Opposition should do two (2) things.
First, it should show the court why the motion should not be entered by citing and directly quoting from controlling authorities that undermine the points asserted by the moving party.
Second, it should show the court how the movant’s arguments are without support and how the authorities he cites are not controlling. If the movant cites authorities that do not apply to the facts of the case, make that clear in your response! Quote the references cited by your opponent to show how they do not apply.
It is not uncommon for lawyers to rely on "headnotes" of authories (brief explanations written by salaried editors, instead of by the justices themselves. The headnote tell what the full text of the authority stands for. Many lawyers are too lazy to read the complete text. This gives you a golden opportunity to correct them with your Memorandum in Opposition.
You must read all the cases, statutes, or other authorities your opponent cites in his memoranda. Read carefully, analyzing every word of the authorities cited by your opponent to determine whether they say what your opponent says they say.
Cite your own authorities and include direct quotes. Explain why they apply and not those of your opponent.
Finish with a strong argument why your authorities outweigh those of your opponent.
Content of the Reply - State or Federal
The movant may not be obligated to file a reply memorandum in response to your memorandum in opposition, but there are times when the non-movant’s response memorandum misquotes or misapplies the law, in which case the original movant is permitted to file a reply.
The reply is not to re-argued what’s already argued. It should not go over old ground. The proper use of a reply memorandum is to point out error in the opposition memorandum. The reply should cite and quote from controlling authority to persuade the court that the argument and authorities set forth by non-movant in his response memorandum are misleading or utterly false.
Frequently Used Motions
In this lesson we look at a few frequently used motions you will encounter in both state and federal courts.
Motion for Extension of Time
This motion seeks an order giving movant a later deadline, e.g., extending the time to file a response to some discovery request [You’ll learn about discovery in other tutorials in this course.], to obtain additional discovery, or to take some other action that is constrained by time limitations. The motion needs to show (1) a good faith effort was made to comply within the deadline, (2) that the extension will not unduly burden or prejudice the other side’s case, and (3) that the interests of justice will be served by the extension. This motion should be filed as soon as the necessity for more time is known.
Motion to Exceed Page Limit
Many courts put a limit on the number of pages one can use with various documents (motions, memoranda, briefs, etc.). In unusually complex cases, this limit on pages may prevent a party from fully explaining a matter. In most cases the motion will be granted, unless the movant has previously abused an extended court privilege or otherwise acted beyond the scope of proper protocol and procedure.
Motion for Continuance
Judges don’t like continuances and generally oppose them. Continuances juggle the court’s calendar and delay efficient conclusion of cases. Good cause must be shown. The fact you wanted to take a family vacation during the week scheduled for a hearing or trial will probably be insufficient. A death in the family or some other genuine emergency that prevents you from attending will almost always be honored.
Motion to Seal
Sensitive papers must sometimes be filed with the court. The judge and the opposing party must see these papers to ensure due process, however in some cases the party filing the papers has valid reasons for not wanting anyone else to see the papers. The motion to seal seeks an order directing the clerk to put such papers in a sealed file and deny access to anyone who doesn’t have a court order authorizing inspection.
Motion for Leave to Amend
A motion for leave (permission) to amend may be filed anytime a party wishes to alter what’s been said in a document already filed. It might be a discovery response, a motion, or a memorandum. In most cases it is a pleading. [Pleadings include complaints, answers, counterclaims, cross-claims, third-party complaints, affirmative defenses, and replies. See our other tutorials for more information on pleadings, how to draft them, and what they are designed to accomplish.]
In the case of the initial pleading (the complaint) one may amend without leave of court (i.e., without a motion) so long as the other side has not yet filed an answer. In all other cases, if what’s been said needs to be changed, one must file a motion to amend and obtain an order authorizing the amendment. A sample copy of a motion for leave to amend is shown.
FIFTEENTH JUDICIAL CIRCUIT COURT
PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
PETER PLAINTIFF,
Plaintiff,
v. DANNY DEFENDANT,
Defendant.
____________/
Case No. 12345
MOTION FOR LEAVE TO AMEND
PLAINTIFF Peter Plaintiff moves this Honorable Court to enter an Order allowing him to amend his complaint to add DOROTHY DIRTBAG as defendant and to allege counts against her individually, stating in support:
- As a result of discovery and the ongoing proceedings in this matter plaintiff has acquired knowledge of torts committed against it by Dirtbag who should be added as a defendant in this action.
- The torts committed by Dirtbag arise out of fact circumstances common to this action.
- A copy of the proposed amendment is attached.
WHEREFORE the plaintiff moves the Court to enter an Order allowing him to amend his complaint by appending the pleading attached hereto.
I CERTIFY that a copy of the foregoing was provided to Dewey Cheatham, Esq., 38 Liar Lane, Happiness, Florida 33333 this 19 April 2005.
Peter Plaintiff, Plaintiff
Motion for Default
If the defendant fails to file a responsive pleading (or delaying motion) within the time permitted for such filings, the plaintiff may move for entry of the clerk’s default. Defaults are usually set aside by showing (1) the failure or delay was a result of excusable neglect and (2) there is a reasonable likelihood that the defaulted party can prevail in the case. The defaulted party cannot proceed until he files a motion and obtains an order setting aside the default.
Motion for Default Judgment
If the clerk enters a default against the defendant, or if any party violates the rules so abusively that default is warranted as a sanction to punish the offending party, one may move the court for entry of an order of default judgment and the case is over.
Motion to Dismiss
Motions to dismiss may be filed for various reasons. The order sought is one that dismisses part or all of the other side’s case. The general rule is for dismissals to be set aside (upon motion by the dismissed party) if the error is cured within a reasonable time. The most common motion to dismiss is filed when the plaintiff fails to state a cause of action (or claim upon which the court can grant relief), however courts generally give plaintiffs additional time to amend complaints to cure this common defect. If one party has not taken affirmative action to move his case along and nothing is done within a certain period of time (varies by jurisdiction) one may move the court to dismiss for lack of prosecution.
Motion for Judicial Notice
A motion for judicial notice can be used in many ways, however it is important to know there are some things a judge must take notice of and some things it is discretionary whether the judge will grant the motion.
If the matter for which one seeks an order taking judicial notice is a law, treaty, official document (e.g., deed, previous court order, etc.) then the judge must enter an order granting the motion and stating that the matter may be relied upon as true for all purposes during the proceeding.
If the matter for which one seeks an order taking judicial notice is one of opinion or something about which reasonable persons may disagree, then the court will usually deny the motion.
If the matter for which one seeks an order taking judicial notice is a fact well known in the community or firmly established in the literature (e.g., that cyanide is poison, that Shakespeare wrote plays, etc.) the judge will almost always grant the motion and state that the matter may be relied upon as true for all purposes during the proceeding.
The principal thing is to consult local rules, because local rules sometimes require advance notice to your opposing counsel before filing a motion for judicial notice, and failure to follow the local rules may be fatal to your effort.
Motion to Intervene
A motion to intervene may be filed by an individual or other legal entity whose substantial rights, powers, privileges, and/or immunities will be affected by the outcome of the case.
The intervenor must have an actual, present, adverse, and antagonistic interest in the subject matter in both fact and law.
Motion to Strike
A motion to strike seeks an order deleting parts or all of an opponent’s paper on the grounds it is scandalous, impertinent, inflammatory, or absolutely false and known to be false at the time of filing. An example is the motion to strike sham, filed when a movant’s opponent files a paper containing false statements known to be false at the time of filing. If a plaintiff files a complaint, for example, containing false statements known to be false at the time of filing, the defendant may by this motion obtain an order dismissing the case in its entirety and with prejudice so it cannot be amended and filed again. Movant must, however, prove the falsehood and his opponent’s knowledge of the falsehood.
Motion for Summary Judgment
If a case presents no issue of material fact (i.e., not one single issue that could affect the outcome) so there remains nothing further to be decided by the court, you can move the court to enter an order of summary judgment. To obtain such an order, however, you must show there is absolutely nothing about the facts that can be seen in any way other than favorable to you. If there are any issues of material (relevant) fact remaining in the record of the case, summary judgment motions should be denied. If summary judgment is granted while there are remaining issues of material fact, appeal is necessary. Appeal is not permitted if summary judgment is denied.
Motion for Reconsideration / Re-hearing
This is an often misunderstood motion. Although it is recommended when one loses a motion (because it gives the losing party another opportunity to make his record in a cogent writing filed with the clerk) it is seldom granted. Moreover, it does not extend the deadline for appeal. Don’t make the common mistake of failing to file notice of appeal while waiting for the court to rule on your motion for reconsideration. The clock keeps ticking. Failure to file notice of appeal in the time allowed makes appeal impossible.
Motion to Compel Discovery
It’s amazing how many pro se litigants fail to move the court to compel discovery after receiving from a hired-gun lawyer for the other side bogus responses to reasonable interrogatories, requests for production, or requests for admissions. Most lawyers refuse to file good faith discovery responses. Instead, you’ll get, “Objection! Vague, ambiguous, seeks to inquire into the attorney-client privilege, outside the scope of discovery, and not reasonably calculated to lead to discovery of admissible evidence,” or something similar intended to throw you off. Don’t put up with it! File a motion to compel, citing rules that grant your right to discovery. Explain why things you sought to discover are “reasonably calculated to lead to admissible evidence”. If what you seek is reasonable, the court will command the other side to respond accordingly. If you don’t file a motion you won’t get your evidence, and you’ll likely lose your case for lack of proof.
Motion for Protective Order
If discovery (including depositions) is likely to unduly burden or prejudice a party, that party may move for a protective order to either prevent the discovery altogether or require that discovery take place under controlled conditions. If controlled conditions will afford sufficient protection, the movant should state the conditions requested, instead of seeking to avoid the discovery altogether, since judges are disinclined to deny discovery completely except under the most egregious circumstances.
Motion to Determine Sufficiency
This motion is used to challenge an opponent’s response to a request for admissions. The rules require no more than simple “Admitted” or “Denied” responses. But, the rules are intolerant of objections or outright refusals to respond.
The penalty for trying to avoid either admitting or denying a fact set forth in the request is to have that fact deemed admitted by court order using a “Motion to Determine Sufficiency” of the responses.
The penalty for lying in a response may be judgment for the requesting party, if the lie was intentional and can be proven.
If a party objects, he must give detailed reasons for his objection. An objection by itself does not suffice. Objections must be explained in detail.
If a party fails to either admit or deny or otherwise fails to respond appropriately to a request for admissions, the requesting party may file a Motion to Determine Sufficiency. If the motion is granted, the court’s order will deem the improper responses as admissions, in which case everything the other side refused to admit in a straightforward manner as required by the rules will be treated as true for all purposes in the case.
A good thing for you!
Here’s a sample motion:
FIFTEENTH JUDICIAL CIRCUIT COURT
PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT and
DOROTHY DIRTBAG,
Defendants.
____________/
Case No. 12345
MOTION TO DEEM REQUEST ADMITTED FOR DEVIOUS RESPONSES
PLAINTIFF Peter Plaintiff, pursuant to Rule 1.370 Florida Rules of Civil Procedure, moves this Honorable Court to enter an Order determining insufficient a response of defendant Dorothy Dirtbag (hereinafter Dirtbag) to plaintiff's request for admissions and deeming same admitted for all purposes, stating in support:
1. This court is not a forum for cute tricks nor a stage for clever use of smoke and mirrors word magic to evade responding to lawful discovery requests pursuant to the rules that control this court.
2. Dirtbag's response to plaintiff's request for admissions is nothing short of a word game.
3. Paragraph 1 of plaintiff's request for admissions sought to establish that a contract forming the basis for this lawsuit "contemplated" there would be a limit on Dirtbag's ability to trade her stock.
4. Dirtbag evaded answering by claiming contracts cannot "contemplate" because (as Dirtbag asserts with the transparent guile of a pre-schooler) contracts are "inanimate objects".
5. Use of the verb "contemplates" in reference to contracts is well known and widely recognized.
6. The Florida Supreme Court and Fourth District Court of Appeals use this term routinely in written opinions describing what contracts "contemplate". Pandya v. Israel, 761 So.2d 454 (Fla. 4th DCA 2000); Petracca v. Petracca, 706 So.2d 904 (Fla. 4th DCA 1998); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Potter v. Collin, 321 So.2d 128 (Fla. 4th DCA 1975); Belcher v. Belcher, 271 So.2d 7 (Fla. 1972); Bergman v. Bergman, 199 So. 920 (Fla. 1940); Bowers v. Dr. Phillips, 129 So. 850 (Fla. 1930).
7. Dirtbag's resort to word games is in contempt of this Court's lawful authority and should be sanctioned by entry of an Order deeming the requested admission admitted for all purposes.
WHEREFORE plaintiff Peter Plaintiff moves this Honorable Court to enter an Order deeming the request referenced herein admitted for all purposes during the pendency of these proceedings.
I CERTIFY that a copy of the foregoing was provided by regular U.S. Mail to the law offices of Dewey, Cheatham & Howe at 38 Liar Lane, Hogwash, Florida 33333 this 19 April 2005.
Peter Plaintiff, Plaintiff
Motion to Show Cause
If a party disobeys a court order or commits perjury (a material false statement that was known to be false when made) the proper procedure is a motion to show cause why that person should not be held in contempt. The motion will generally be heard, so the offending party has an opportunity to show either (1) he didn’t do or fail to do what the movant alleges or (2) that he had good cause to do what he did or didn’t do. If he cannot show good cause, an order may be entered requiring further performance.
Motion for Contempt
If a party fails to obey a show cause order, a motion for contempt should be made, seeking an order finding the offending party in contempt. In general, contempt orders give the offending party one further opportunity to cure. Failure to cure can result in a warrant being issued for the offending party’s arrest.
Motion in Limine
Motions in limine are filed before trial to either limit the introduction of evidence or to ensure that certain evidence will be allowed. These are a good idea whenever there’s a chance the other side may pull a “fast one” and bring in something at the last moment that the jury shouldn’t see, or if you’re pretty sure the other side will try to prevent you from presenting critical evidence you need to get in.
Here’s a sample.
FIFTEENTH JUDICIAL CIRCUIT COURT
PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT and
DOROTHY DIRTBAG,
Defendants.
____________/
Case No. 12345
MOTION IN LIMINE
PLAINTIFF Peter Plaintiff moves this Honorable Court to enter an Order preventing the defendants from presenting at trial argument or evidence in support of the "clean hands" defense and states:
- The clean hands defense cannot be used as a defense to intentional torts.
- All allegations of plaintiff's complaint are based on defendants' intentional torts.
- The clean hands defense is appropriate only in cases where plaintiff seeks equitable relief.
- The ancient maxim is, "He who comes to equity must come with clean hands."
- Plaintiff seeks only money damages caused by defendants' intentional torts.
- Plaintiff does not seek equitable relief of any kind.
- Therefore, the clean hands doctrine is inapplicable as a defense, and no evidence or argument should be permitted in support of same at trial.
WHEREFORE plaintiff moves the Court to enter an Order preventing defendants from presenting at trial evidence or argument in support of their alleged "clean hands" defense.
I CERTIFY that a copy of the foregoing was provided to Dewey Cheatham, Esq., 38 Liar Lane, Happiness, Florida 33333 this 19th day of April 2005.
Peter Plaintiff, Plaintiff
Motion to Invoke the Rule
During trials, hearings, and depositions it is generally improper for witnesses to be present if their testimony is not being taken. “The Rule” sequesters witnesses who are not being questioned at the time, so their independent testimony can be obtained when their turn comes. If the court does not invoke the rule on its own, you can move the court to enter an order invoking it.
Motion to Set Aside / Vacate
If an order was granted under circumstances contrary to the fair administration of justice (fraud, false statement, mistake, lack of proper notice, etc.) you can file a motion to have that order set aside or vacated. To prevail, of course, you must prove the fraud, false statement, mistake, etc.
Motion for In Camera Inspection
On occasion you may run into an obstreperous opponent who refuses to produce some document upon the specious claim that the document contains some “trade secret” or even that the document contains some sensitive information related to “national security”. To get past such nonsense, you may file the following motion and set it for hearing.
FIFTEENTH JUDICIAL CIRCUIT COURT
PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT and
DOROTHY DIRTBAG,
Defendants.
____________/
Case No. 12345
MOTION FOR IN CAMERA INSPECTION
PLAINTIFF Peter Plaintiff moves this Honorable Court to enter an Order compelling defendants to produce for in camera inspection the written agreement between them dated 27 November 2013 and states:
- On 23 October 2013, Plaintiff served defendants with a request to produce the agreement.
- Defendants have steadfastly refused to produce the agreement.
- Defendants claim the agreement contains "trade secrets" and should not be subject to plaintiff's request to produce.
- Upon information and belief, plaintiff asserts the agreement contains terms of an unlawful conspiracy between the defendants that threatens immediate harm to plaintiff if not made a part of the record in this case.
- Plaintiff further asserts the agreement contains no "trade secrets" as defined by law in this state.
- The agreement should be produced.
WHEREFORE plaintiff moves this Honorable Court to enter an Order compelling defendants to produce the said agreement for in camera inspection by the Court and, if the Court determines that same does not contain "trade secrets" as defined by law in this state, that said document be produced to plaintiff without further unnecessary delay.
I CERTIFY that a copy of the foregoing was provided to Dewey Cheatham, Esq., 38 Liar Lane, Happiness, Florida 33333 this 19th day of April 2005.
Peter Plaintiff, Plaintiff
– – – – – – –
These are just a few of the commonly encountered motions you will run into as you fight your battles in court.
There are as many different potential motions as your imagination can create, but these are a few that courts are used to seeing on a daily basis motions you can file without raising judicial eyebrows.
Certificate of Good Faith
In both state and federal courts it helps to attach a certificate of good faith to all your motions. In many courts it is required.
The certificate of good faith tells the court that the movant made an effort to communicate with the opposing party to resolve the matter without requiring the court’s valuable hearing time. (Non-lawyers do this by notarized oath).
All parties affected by a motion should be contacted and a good faith effort made to reach agreement that might eliminate the need for a motion hearing. It’s not enough to phone the other side’s office after business hours on Friday to leave a message requesting someone to call you back and then certify they didn’t call. That’s not a “good faith” effort.
At a bare minimum (best practice) speak with the other party (or their lawyer) in person. Tell them the gist of the motion you’re about to file and ask for ideas how you might resolve your differences without filing the motion or setting hearing time on the judge's calendar. Take notes while you talk about it! Write down the time you called, who you spoke to, what you told them, and what they said to you. Save your notes!
If they agree to cooperate you’ve gained ground. If they refuse to cooperate, make absolutely certain you have your notes in case the court wants to confirm that you made a “good faith” effort to resolve the matter before filing your motion. Be prepared to tell the court what you said to the other side, who you spoke to, when, and what they said in response.
If possible write down their exact words. [Never tape record conversations, either in person or over the phone, unless you first tell the other party on the tape so you have a record that you are recording the communication. Violation is a felony in many jurisdictions, punishable by fine and imprisonment.]
Whether your opponent agrees or disagrees, follow-up with a letter (always better than an email) that provides an outline of what was said. Requesting the other side to respond to your letter in writing if he believes yours misconstrues the position he stated on the phone. If he does not write back with a different story, he will have a hard time in court when you present a copy of the letter you wrote to him.
Once you’ve done all these things, file your motion and, at the bottom of the motion (below the certificate of service but above your signature), add a certificate of good faith something like this (or as local rules in your jurisdiction require):
I CERTIFY that a good faith effort was made to communicate with opposing counsel with a view toward resolving the issues raised by the foregoing motion, however the parties are at an impasse.
[You’ll learn more about certificates of service and good faith in other lessons in this valuable course.]
Keep your notes. Don’t be caught flat-footed when the other side complains, “Nobody contacted us about this motion. The first we knew of it was the day we received it in the mail!” Lawyers sometimes lie. Don’t be a victimed of their chicanery. Expect dishonesty. Fore-warned is fore-armed!
Protect yourself with copious notes of all communications with lawyers!
Scheduling Hearings
Before you send out a notice of hearing, schedule time with the court and the opposing party.
You need a time, date, and place where the court will give you and your opponent time to argue. You also need to reserve a particular length of time, e.g., 30 minutes or 4 hours, etc.
Most judges are very busy people. They can’t just drop everything, put everybody else on hold, and hear what you have to say when you’re ready to say it.
You must schedule hearing time on the judge’s calendar in advance. In some courts today, you must schedule months in advance.
If your motion (or the other side’s motion that you want to argue at a hearing) can be heard in 5 or 10 minutes, the court may provide what’s called Uniform Motion Calendar. This is hearing time set aside to hear simple motions that don’t require presentation of evidence or complex legal arguments. UMC hearings are reserved only for motions that should take no more than a few minutes to argue. Dozens of lawyers and pro se litigants will show up for UMC hearings. Get there before everyone else and put your name at the top of the roster so your case gets called first.
UMC hearings, like all other hearings, require an original Notice of Hearing to be filed with the clerk and copies sent to all parties involved.
[Sample Notice of Hearing in the Reference Menu “Forms” class.]
Scheduling Hearing Time
Motions that can’t be argued in a few short minutes must be specially scheduled. This requires tact and diplomacy.
The judges secretary may be called a “judicial assistant”. Stupid lawyers refer to her as the “JA”. This is unwise, and never let them hear you refer to them as the judge's secretary. They are the judicial assistant. Use that term. You will need them to help you win your case. Be friendly and respective, or the judicial assistant can make your life extremely difficult.
Rude litigants have their hearings set for the 12th of Never!
If you’re courteous and professional (and lucky enough to avoid the Nurse Ratchett type) it’s a relatively simple process to get hearing time for your or your opponent's motions.
That’s the process.
If, after making several reasonable attempts, the other side will not agree to hearing date/time, go ahead and set the hearing and send out your Notice of Hearing. If you’ve kept accurate notes (i.e., how many times you had to call the JA for different dates, who you spoke with at the office for the other side, when you spoke with them, what they said, reasons and excuses they gave) then, when time comes for hearing and they don’t show up, you’ll have a record to show the judge explaining why you set the hearing without their agreeing to the date. Pin down disagreeable opponents with a written record showing they were unreasonable in refusing to set a mutually agreeable time. Try an email like this:
Dear Counselor,
This will confirm my communication this morning with your secretary Sue who told me you could not attend a hearing before Judge Grumpy on my motion for more definite statement on any of the following dates: 13 September at 3:30, 14 September at 11:00, 15 September at 9:15, or 16 September at 2:30.
She told me you were scheduled to play golf on each of those days.
If I do not hear from you within 5 days, I will assume your secretary correctly conveyed your wishes.
Respectfully
yours,
Print the outgoing email and Keep a copy. Then, if your need it, you’ll have something to show the judge that you made a reasonable effort to get agreement.
You may set a hearing for your own motions or the other side’s motions. If the other side files a motion you don’t want to be ruled upon, let them set their own hearing. Maybe they’ll forget. If you want their motion to be heard, go ahead and set it for hearing yourself.
Noticing Hearings
Everyone is entitled to reasonable advance notice of when and where a hearing is to take place. This is done with a Notice of Hearing.
A proper Notice of Hearing must accomplish eight things:
In most courts (check local rules) the original of your Notice of Hearing is sent to the Clerk with a copy of the motion (or other pending matter to be heard) and a cover letter requesting the Clerk to file the notice and “forward the entire file to the assigned judge for the court’s consideration”.
If the motion is your motion, file the original of your motion along with your Notice of Hearing.
A copy of the Notice of Hearing and a copy of the Motion should be mailed (or hand-delivered) to your opponent. The Notice of Hearing requires a Certificate of Service attesting to the fact that you provided copies to your opponent and now those copies were transmitted.
The following is a typical Notice of Hearing that should work in most jurisdictions.
IN THE THIRTIETH JUDICIAL CIRCUIT COURT
IN AND FOR SUNSHINE COUNTY, FLORIDA
PETER PLAINTIFF,
Plaintiff,
v. DANNY DEFENDANT,
Defendant.
____________/
Case No. 2012-123
Judge Benchpounder
NOTICE OF HEARING
PLAINTIFF Peter Plaintiff hereby gives notice he will call up to be heard before the Hon. Barry Benchpounder in Courtroom 5 at the Sunshine County Courthouse, 10 Justice Avenue, Small Town, Florida at 10:00 a.m. on 31 February 2012 his Motion for a More Definite Statement.
TIME RESERVED is 15 minutes.
GOVERN YOURSELVES ACCORDINGLY.
Peter Plaintiff, Plaintiff
[ Certificate of Service ]
STATE OF FLORIDA
COUNTY OF SUNSHINE
BEFORE ME personally appeared Peter Plaintiff who, being by me first duly sworn and identified in accordance with Florida law, executed the foregoing in my presence.
Notary Public
Arguing Motions at Hearings
The day is here.
You’ve taken your seat. The courtroom doors closed behind you. The bailiff announces, “All rise!”
Enter the judge. Everyone stands. The judge looks around the room and says, “Please be seated.”
Don’t sit down!
The judge will announce the hearing, telling everyone including the court reporter you brought to write things down (You did bring a court reporter, didn’t you?), “We’re here on case number 05-123, Peter Plaintiff versus Danny Defendant. This is the plaintiff’s motion for summary judgment. Please proceed.”
The movant goes first.
Don’t let the other side interrupt. Crooked lawyers will jump to their feet and interrupt as often as you let them get away with it. After the second or third interruption, stop your presentation and say, “I have only a limited time to present my argument. May I proceed without interruption?” If the court allows your opponent to continue interrupting, say, "I move the court to order my opponent to stop interrupting." This will be on the record in case you must appeal.
You have a right to be heard. It was bought for you by the blood sacrifice of men and women who died for your right to be heard. Remember this. Demand to be heard.
Getting Started
The first question to ask the judge “Have you read my motion?”
If the judge says he’s read your motion, then refer to it as your outline while making your arguments why your motion should be granted.
If the judge says he’s not read your motion say, "If it please the court I will take a moment while the court reads my motion." If the court agrees, wait silently while the court reads your motion.
If the court gets angry, as is likely with some judges, then you read your motion into the record while adding any additional arguments that will convince the court to grant your motion. Do not get away from what your motion says! Touch on every point of your written motion, using it as your outline to keep you from wandering when your opponent interrupts, as he will continue to do.
Controlling the Opposing Party
When you finish arguing your motion and sit down, your opponent will do his best to shoot holes in everything you said. Some unscrupulous bums in the profession will take personal shots at you, insinuate that you’re trying to deceive the court, even suggest you’re a dishonest person who should never be believed no matter what you may say.
Don’t put up with it! Object! Make your record! Do whatever is necessary to ensure that the record reflects everything pertinent that takes place, including things done without words. “Let the record reflect opposing counsel is making childish faces at me, Your Honor, when you aren’t looking.” That will put a stop to it.
Help your opponent to shoot holes in his own case. If he cites cases or statutes that don’t apply to facts before the court, let him continue as you take notes. As moving party you will be allowed an opportunity for rebuttal. Then you can explain how the other side misrepresented what those statutes and cases truly say and stand for. Don’t interrupt if your opponent is going down the wrong path. Let him slide! Wait until he sits down then, in calm measured tones say, "My opponent has misrepresented the law and facts in this case and is attempting to mislead this Honorable Court.” You will then have the upper hand.
Don't let him testify to any facts. This was covered in the lessons on evidence and objections.
Rebuttal Argument
After the other side concludes his argument against your motion, the court should give you a chance to rebut what he said. This is especially true if the other side raised new points of fact or law that weren’t discussed in your own argument. This is not a chance to re-state what you said in your initial argument, but many judges will give you this second bite at the apple (whether or not the other side raised new issues that open the door for rebuttal).
If permitted, make a final summation why your motion should be granted then sit down!
Stick to your arguments. Don’t let your opponent throw you off course. Keep it simple.
Talk to the judge at hearings (not to your opponent). Talk directly to the judge and only to the judge. [At trial before a jury, talk to the jury or the judge but never to your opponent!]
Speak as if you were talking to a small child. Use measured tones, short sentences, one at a time. Do not imagine for a moment that the judge is “smarter” than you. He may know more about law, but when it comes to the facts you’re trying to present he may know nothing. Explain your case as you would if you were speaking to an acquaintance of average intelligence. Be understood.
Gain and maintain eye contact with the judge. Don’t look about. Pay no attention to anyone else. Look the judge straight in the eye and, if the judge looks away, pause and wait silently until the judge looks back at you. Scientific studies have proven that people who look away from a speaker are less likely to absorb and retain what’s being said to them. Those who maintain eye contact fare much better, as if one mind speaks directly to the other.
Don’t look down (except to find papers on the table or lectern). Stay alert.
Speak loudly enough to be heard clearly and no louder! Do not emphasize what you’re saying by raising your voice or wildly inflecting your pitch. Measure your words, Use vocabulary not physical emotion to emphasize points. Lawsuits are won with words, not gymnastics or histrionics (no matter what you see on TV court shows).
Don’t allow the judge or your opponent to rush you. You’re there for a purpose. This is your time to be heard. Valuable time. Make the most of it. Take your time.
If the judge says, “Hurry it along!”, thank the court then proceed as before. Cover all the necessary points in your argument. Use all the time allotted for the hearing. Each side gets equal time. Use all of yours.
Conclusion
Like soccer and other competitions, reading can only partially prepare you for the game. Mastery can only be gained by doing.
Stay calm under the demanding gaze of a grumpy judge and a rude attorney doing his best to make your life miserable. You're confident from what you've learned in this lesson. You don't need to be intimidated. Jump in the game with both feet kicking the ball toward your goal!
Say what you need to say, then STOP. Don't over-argue your points. Too many words get in the way of what’s really important.
In the middle of a courtroom battle long ago, a wonderful old country judge, who’d been wearing a black robe longer than I’d been alive at the time, interrupted me with, “Ok, you win.”
There was more to be argued. Hours had been spend preparing. Dozens of cases read and cited. Time to cut the opponent off at the knees with more clever argument. But, the old judge stopped that looked for opportunity with, “You win! Sit down, please.”
Once you win, shut up and sit down.
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