The other day I was writing a motion to exclude an expert’s opinions on grounds that the other side failed to disclose them timely. Most motions like this would begin in this ho-hum fashion:
Now comes XYZ Corp., defendant, who moves the Court to exclude the opinions of Joe Blowhard, on grounds that ABC Corp. failed to disclose ....
Occasionally a bold writer may dispense with the “Now comes” and get right to the point:
XYZ Corp., defendant, moves the Court to exclude the opinions of Joe Blowhard, on grounds that ABC Corp. failed to disclose ....
That’s how I usually write a motion. But for no particular reason, for this motion I tried an unconventional opening. Since the case was settled a couple of days ago, I figured there would be no harm in sharing it with you. Here it is, with names changed:
On April 8, 2008, three months after its deadline to make expert disclosures, ABC Corp. produced an expert report authored by someone never previously identified or disclosed as an expert witness in this case: economist Joe Blowhard. Though Blowhard does not appear on any party’s witness list, ABC apparently intends to offer his opinions into evidence by having another purported expert, accountant Jane Runway, “consult with” and “rely” on Blowhard’s opinions.
XYZ Corp. moves the Court to exclude Blowhard’s opinions from evidence under Fed. R. Civ. P. 37(c)(1) and Fed. R. Evid. 802. XYZ further moves the Court to exclude any testimony from Runway purporting to “rely” on Blowhard’s opinions, on grounds that any such “reliance” would be an abuse of Fed. R. Evid. 703.
Instead of beginning with the relief requested, this begins with the events that motivated XYZ to seek relief. What do you think of beginning a motion this way?