Writing and Arguing Motions – Tips from Judge John Erlick

When Judge John Erlick, served as Chief Civil Judge of the King County Superior Court (Seattle), he created a column entitled “Tips from the Top” for the King County Bar Bulletin in which he answered questions posed by members of the bar. One lawyer wrote asking, “I’ve noted differing approaches by the judges. What should I do — or not do — when preparing and arguing a summary judgment motion? Do you have any insights on what judges want and what they’re looking for?” Judge Erlick’s response provides excellent advice for summary judgment and other motions as well.
He answered as follows:

Indeed I do have some insights (concerning summary judgment motions). My colleagues have been good enough to share with me their preferences, peccadilloes and pet peeves. I’ve created an amalgamation of some of the more salient and recurrent themes. Here you go:

Length of briefs
Stay within the page limits set forth in the local rule, unless you ask for and receive leave to file an overlength brief. Don’t ask lightly. Do not assume that an overlength brief will be read by your judge. It would be nice for counsel to file the motion for overlength brief prior to filing the actual motion for SJ.
Do not presume, because there is a stipulation (to my time) by both counsel for overlength briefing, that the motion will be granted. It is presumptuous of the court’s time and will be returned with an order granting the motion to shorten time and an order denying the motion for an overlength brief (along with instructions to re-file a brief within the proper page limitations). And please do not play games with margins, font size, etc., to get around the rule. Don’t try to do an end run around the page limits by including numerous footnotes that are single spaced and in “micro font.”
Counsel should be gently reminded that all judges hear about three or four summary judgments each week involving issues such as insurance coverage in the form of declaratory relief, medical malpractice claims, legal malpractice claims, constitutional issues, employer-employee cases, class actions, construction defect cases and the list goes on. The briefs that get my attention are those that are well-written and succinct.
Remember: Reply briefs are limited to strict reply and FIVE pages, even for summary judgments.

Organizing the brief
Trial judges do not have law clerks who write bench memos for us. We read everything submitted ourselves and are preparing for the Friday hearings while we are busy in trial all day long. In other words, be concise and clear because we don’t have the time to “figure out” what you are trying to say in your brief.
Simplify your argument if possible. A brief should not look like a draft of a law review article. Tell the judge what s/he needs to know about your case as concisely as you can. If the facts are at all complicated, a timeline is very useful.
Proofread! Then do it again.
One approach is to do an introduction listing the main points of the argument and then later flesh out each point. Make it visually easy to read with bold divisions/break points. I don’t want to read pages of single-spaced materials without breaks unless it is the in-depth part of a given section.
Don’t waste precious space on the standards for summary judgment unless you have something new to say. We know the basics.
PLEASE tab the declarations and exhibits, preferably with highlighting of quoted or important portions, and if possible give the judge summary judgment notebooks, and follow the local rules by providing out-of-state and federal authority to the judge and opposing counsel.

Supporting documentation
If you are relying on deposition testimony to support your position, DO NOT simply attach the entire transcript to a declaration and expect the judge to read the whole thing to find the evidence you want the judge to find. Redact, highlight, whatever, the court’s portions AND the portions you send to opposing counsel, so we can streamline SJ prep.
When presenting numerous exhibits, tab the working copies in a way that makes it easy for the judge to find each exhibit. It’s most helpful to have numbered or lettered tabs that stick out; if you can’t do that, at least put a colored sheet of paper between each exhibit.
Along this same vein, if an exhibit has many pages, have it Bates stamped, and cite to the exhibit number and the page number in your brief. It’s frustrating to go paging through an exhibit that does not have easily recognized page numbers, such as insurance policies, or some real estate documents, trying to find a particular portion that is cited in a party’s brief. If you have photos as an exhibit, give us ones we can see, not grainy black-and-whites that show nothing

Citation to authority
It is always appreciated (since the rule requires it) to attach authority (case law), especially out-of-state case law. Significantly limit string citations to cases. When you use string cites, summarize briefly what the case holding was for the important cases.
Be forthright about authorities you cite. Don’t quote cases out of context; don’t cite a case for a proposition it doesn’t stand for. Citing a case means telling me something about how that specific case has application. Don’t cite a case you have not read because you will be very embarrassed and lose a lot of credibility if you cite a case for a proposition based on a headnote and the actual case says something different.

Oral argument
Find out in advance how long each side will have in oral argument. If there is more than one counsel aligned on each side, decide ahead of time how you want to allocate your time. Don’t expect to necessarily be able to present your entire argument without interruption.
Different judges approach oral argument differently. Some run a “hot bench,” peppering counsel with questions. Others take the Justice Clarence Thomas approach, listening to the argument in its totality, without questions. The types of questioning may clue you in to the level of detail your judge has familiarized him/herself with the facts of the case and the issues involved.
Know your important cases and how they relate to the legal issues in your motion. Also, when referring to asserted facts, know exactly where they are supported and referenced in the record.

Other considerations
Call the court if you settle the issue or intend on striking the motion so the judge does not read all the materials for nothing.
Call well in advance of when you want the summary judgment heard to reserve a time. Check in advance the availability of opposing counsel. The court does not want to get in the middle of your scheduling disputes.
Please note that the dispositive motion cutoff date on your case scheduling order is the last date that a dispositive motion can be heard by the Individually Calendared (IC) judge. That date is tied to the close of discovery on your case. If you find yourself up against a deadline without time on the judge’s calendar, you might ask the bailiff if the judge would consider the motion without oral argument. Another option is to request to be double-set, i.e., oral argument will be granted if a time slot opens up on the judge’s calendar.
Don’t stipulate to changing the briefing schedule without getting approval of the court.

Originally published in the November, 2007 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association and Judge Erlick.