A different (better?) way to begin a motion

The other day, I was writing a motion to quash a subpoena to appear at a trial in Florida. Most lawyers would begin such a motion something like this:

Comes now A.B., a non-party witness, and moves the Court to quash the subpoena served on him to appear at trial. A.B. brings this motion under Fed. R. Crim. P. 17(c)(2) and offers the following reasons in support of this motion ....

For reasons explained in this old blog post, I never use “Comes now” or any similar antiquated verbiage to begin a motion. So the first draft of the motion to quash went something like this:

A.B., a non-party witness, moves the Court to quash the subpoena served on him to appear at trial. A.B. brings this motion under Fed. R. Crim P. 17(c)(2) and offers the following reasons in support of this motion ....

That opening is concise, direct, and informative. But on reading it, I realized that it did nothing to persuade. So I thought, why not try something different? So I did. Here’s what I came up with:

On a motion made promptly, the court may quash or modify a subpoena if compliance would be unreasonable or oppressive. Fed. R. Crim. P. 17(c)(2). Non-party witness A.B. moves the Court to quash the subpoena served on him to appear at trial. A.B. resides in Louisiana. Compliance with the subpoena would be unreasonable and oppressive because the testimony the Government proposes to elicit from A.B. would be inadmissible .... Thus, requiring this Louisiana witness to travel hundreds of miles to appear at trial in Florida would serve no useful purpose.

I like this opening because its structure reminds me of how a child persuades a parent to let him or her do something. “You said that if I clean my room, I can go to the movies. I cleaned my room. So can I go to the movies?” (This is a child with an instinct for deductive reasoning.) But mostly I like it because the work of persuasion starts with the very first sentence.

Comments

[Andrew Weltchek]

Woke up this morning, saw this post, and revised the opening for a motion I'm working on as follows: "A dissolved corporation cannot sue to enforce a contract entered into after it was dissolved or file a mechanic’s lien for work done after it was dissolved. I submit this affirmation in support of the motion by Defendant [XYZ] for summary judgment dismissing the Complaint, discharging the Plaintiff’s mechanic’s lien, and cancelling the Plaintiff’s notice of pendency because the Plaintiff was dissolved as a corporation prior to the contract and work at issue." Thanks.

[Mike Shpiece]

I agree that both are better than the standard (boring) approach. But I would lead with the facts, stated in a fair way but in a way that leads the reader to believe in the inherent justice of my client's position.

So, in the Subpoena-quashing case, I might do something like:

The Government wants to require A.B. to travel hundred of miles to this Court for no good reason. A.B. is not a party to this case, [he] lives in Louisiana, and the testimony the Government seeks to elicit from A.B. is inadmissible. Therefore, the subpoena would force A.B. to travel hundreds of miles, at great personal expense, and will cause [him] to lose two days of work. This would be burdensome in any event, but is particularly so in this case because nothing that A.B. will say will be admissible.

Fed. R. Crim. P. 17(c)(2) authorizes this Court to quash or modify a subpoena if compliance would be unreasonable or oppressive. This subpoena is, and A.B. moves to quash it.

* * * * *
Obviously, I don't know any of the facts or law, and I'm sure this could be improved upon. But my point is that it is more persuasive if you begin with the basic factual injustice and then go to the law authorizing a remedy.

As to Andrew's case, I am unclear as to the basic justice. Does his client owe the money and are using the dissolution as a way of avoiding paying? If so, maybe his version is the best that can be done. But if there is some reason why his client hasn't paid, I would start with that.

Does any body have any thoughts on whether it is more effective to start with the facts or with the law?

BTW, for what I think is the definitive short article on beginning a brief, see Burlingame, "On Beginning a Court Paper," which was published in both Vol 6 of The Scribes Journal of Legal Writing and the November 2003 issue of the Michigan Bar Journal, pp 42-3.

[Ray]

Mike: Thanks for your thoughtful comment. My answer to the question of whether to start with the facts or the law is “it depends.” In the motion that prompted this blog post, I was going for something resembling syllogistic reasoning: major premise, minor premise, conclusion. The major premise is the rule of law. The minor premise is the set of facts fitting that rule of law. Similar to the “deep issue” that Bryan Garner teaches, except it’s framed as a nutshell of the argument instead of as the question presented by the motion.