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Basic Motion Practice Structure for Injury Trials

First and foremost, we need to remember the importance of motion work as trial approaches. We want to be limiting issues as much as we can prior to trial. We also want to be limiting objectionable evidence as much as possible. The reason for this is primarily that we want our trial presentation to be as compressible for our jurors as possible. The more issues before the jurors and the more evidence which counsel must fight over in the middle of trial equals greater confusion and ambiguity in trial. Confusion and ambiguity is our enemy as plaintiff's injury trial lawyers. We need the jurors to be able to take in evidence and be confident in their decision making at the end of the trial. To do this we need to narrow and streamline the issues and evidence so as to be easily digestible for these jurors. We accomplish this task, in party, through heavy pre-trial motion practice.

Many of these same principles that apply to juries also apply to judges. What I mean by this is that we need to keep our trial issues straightforward and digestible for our judges just as we need to do for our jurors in trial. Although judges may be educated in the law, as most jurors are not, we need to remember that judges have hundreds of other cases on their dockets. Your case is nothing special to your judge and thus you should assume that your judge knows nothing about your case at all times. You also need to keep in mind that many judges rely on inexperienced law clerks to make decisions for them. Thus you need to make sure that your motions are limited to only important information and that information in your motion is structured in a way that is easily digestible to inexperienced law clerks.

To do this you need to state up front, in your motion, what the question(s) before the court are. We then need to immediately and clearly articulate to the judges what the standard of review should be for each question presented. When we refer to the standard which should apply, I don't necessarily mean the legal standard of review though that may be necessary. More importantly, I am speaking to industry or reasonable person standards aka the "rules" you have already found in the law and/or in admissions from the Defense. To do this you should list each of your applicable rules up front in your motion so that your judge can see the applicable rules in your case. This will be essential in any case where you are defending a summary judgment motion. You need to show the judge what the rules of the game are. Basically, list the rule and then cite the best authority for that rule. Then go to your next rule, state the rule and cite the authority. In this way you quickly and easily list the rules and their corresponding authority for the judge. Don't assume that the judge knows anything about the rules applicable to a specific industry, trade, or way of doing things. You need to educate the judge up front as to what those rules are so that he or she can then view the facts as later presented in your brief through the proper lenses of interpretation.

Given the fact that you are ahead of the game with your motion filing practice you may not have even conducted your depositions at this point in litigation. However, you don't need your affirmative deposition transcripts supporting your rules if you simply find these rules in other relevant legal authority. At this point you don't need to refer to your "rules" as rules. Just cite them as legal authority so as to not confuse your judge and to avoid any type of challenge by the defense. Of course, if you are at the stage of the game where depositions have been conducted and you have established agreement to your rules by the defense then include these affirmations. You can call these rules "uncontested principles and standards". After you state what the principle and standard regarding a course of conduct you then cite any supporting legal authority along with any agreement found in defendant's deposition transcript.

After you have completed your list of relevant principles and standards and cited legal theory for those standards as well as any agreement by the defense to those principles you can now go on to explain to the judge that a jury could conclude that these principles were violated. To do this you simply need to repeat each rule one by one as a heading for each argument. Then in the argument section go through the evidentiary facts at hand to establish that such rules were in fact violated. Essentially, your brief writing in a lot of way parallels how you present evidence to your jurors at trial. The first step in either case is to show the jurors or the judge what the applicable rules are. Then you go on to establish that defense agrees with your rules. In this way there is no doubt by the finder of fact as to the validity of such rule or principle. Next, demonstrate to the jurors or judge through evidence that the defendant violated each of these uncontroverted rules. The idea is to keep it very simple and easy for y9ur decision maker to understand what the rules are, that those rules are not in contention, and that defendant violated those rules.

The rules concept is a basic tenant of lawyering. We are taught in law school how to create briefs using the "Issue, Rule, Application, Conclusion, (IRAC) formula. Of course there are other formulas which are similar but essentially include the same step by step concept. We are now simply remembering to simply apply this same concept to brief writing in our pre-trial motion work. We then use the same concept in the jury trial itself. Rick Friedman and Patrick Malone have written a great book on the concept called "Rules of the Road". I get a lot of my information from these guys and this book in particular. They teach you how to create rules and then demonstrate rule violations to your jurors using a very persuasive methodology. I would recommend to anyone wanting of a comprehensive understanding of this material to pick up one of their books on trial advocacy.

Categories: Personal Injury