Metaphor: Theory and practice
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A different way to begin a motion

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?

Comments

Mark Adler

I think it helps to begin with a note of what you are asking for, to put the rest into context. I don't know the US rules but I'd be inclined to try something like this:

"The defendant asks the court (or "seeks"?) to exclude Joe Blowhard's evidence (as it has been tendered too late) and Jane Runway's evidence based on it (on the same ground, and as it would also be an abuse of Fed. R. Evid. 703)."

And then go into the details.

Ol' McCreedy

I think it's great. It provides context, making it easier to read.

Alan Childress

I think it is a little bit dangerous. It works in this case because you were able to boil down the intro background so well. You clearly said what you wanted by the second paragraph.

But most people trying it will take longer to get to the core concern and requested relief. I still say start by telling the Court what you want. Surprise endings are great for novels and movies, but not legal motions.

I think, in most applications of this strategy, that the Judge and law clerk will start off with a sense of frustration.

Ray Ward

Everyone, thanks for the comments.

Alan makes a good point. I agree that if you try this, you must keep the intro short. The example above is just two sentences, and in the actual draft motion, the relief sought appears on the first page. If they're kept waiting, it's only for about 10 seconds.

Another important thing: though the first two sentences are persuasive (I hope), they are not argumentative. They state simple, objective, verifiable facts. The argument doesn't arrive until later, where it's interwoven with the request for relief.

Why might this work? It opens with persuasive writing, which for the court is a break from the ordinary. And if it's done right, the court is thinking "exclude" before seeing the request for relief. So the request for relief confirms what the court is already thinking.

D. C. Toedt

I agree with the others who think your motion should lead off with what you want the judge to do.

A busy judge or law clerk probably won't patiently read every document from start to finish. It's crucial to seize his [or her] focus as soon as his eye lights on the page.

Here's a possible alternative:

XYZ Corp. moves to exclude any reference by ABC or its witnesses to the putative expert opinions of Joe Blowhard. Mr. Blowhard apparently will not be testifying at trial himself (ABC has not designated him as a witness). Recently, however — long after the expert discovery cut-off — ABC produced a written report by Mr. Blowhard, and indicated that another designated ABC witness, Jane Runway, will rely on the report in her own opinion testimony.

[Don't call Jane a "purported expert"; it sounds a bit churlish. Instead, just refer to her "opinion testimony," which of course is what it is. I deliberately violated that principle in the first sentence, where I used the term "putative expert opinions" so that the judge / law clerk would quickly "get" what's going on.]

DC lawyer

If, as I assume, the motion is captioned something like Motion to Exclude Untimely Expert Witness, I doubt the court was terribly confused about what you were asking for or why you started as you did.

Aaron

For the few motions in limine I've done, I immediately request the relief before going into detail about the reasons thereof. Having seen firsthand how a lawclerk peruses a motion, the first line and the final request for relief usually have a lot to do with how it is treated. That said, it's six out of ten times when the judge is hearing it for the first time being argued in front of him.

Ray Ward

To answer D.C. Lawyer's comment: As a matter of fact, the working caption was "XYZ's Motion in Limine to Exclude Opinions of Non-Testifying Expert." Because the case settled, the motion was never filed. Still, the caption immediately informed the reader of the relief sought.

I should add one more comment: I'm not so concerned with what the judge or the judge's law clerk likes. I'm more concerned with persuading them. If the choice is between their being persuaded and their liking my motion, I'll take persuasion every day.

celia

Yes, please drop the "comes now" or "now comes" or any other legalese that adds nothing to communicating to the court what you really want. I agree with the comment to begin your motion with a short statement of what you want and exactly what authority gives the court the power to give you what you want. Then I'd repeat the same thing -- even though I don't like repetition in any document filed with the court -- in the prayer or last paragraph of the motion.

Your court rules will tell you exactly what elements are needed in a motion, and none to my knowledge require legalese.

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