Monday Young Lawyers’ Tip- Motion Calendar

Hello everyone, and welcome back to the blog!  On Mondays we dole out a practice tip for young attorneys.  Today I want to discuss your approach to what is known in Florida courts as “Motion Calendar,” or sessions in which a trial court hears a series of motions from various cases over a period of approximately an hour.  Most trial courts hold 2-4 motion calendars per week.  Typically, motion calendar hearings on relatively minor issues in the case, such as a discovery dispute.  It is where young attorneys essentially cut their teeth in terms of oral advocacy, as most motion calendar hearings tend to fall below the partner’s pay grade.

I approach motion calendar by trying to picture the process through the judge’s eyes.  I mean look around you.  There is often a sign-in sheet with 40 or more cases on the list on any endless range of topics.  There is a room full of lawyers chirping, the courtroom door opening and closing, the clerk handing the judge orders to review and sign while he or she attempts to listen to the next pair of attorneys argue.  It is controlled chaos.  I therefore try to be a part of the solution, not a contributor to the problem.  Here are a few ways to do that:

1)  Send a courtesy copy a few days in advance, but prepare to be heartbroken. I make a point to send a courtesy copy of my motion or response with a cover letter a few days before the hearing.  However, I do so for two reasons — a) to not be “that guy” on the off chance that the Court is particularly about receiving copies and will be upset with the attorney who does not do so; and b) to provide it “just in case” the Court really wants to review it in advance of the hearing.  However, let us remember that judges, while knowledgeable about a remarkable range of law, are people just like us lawyers, with only so much room to store information on 40 different cases in a given day, all the while knowing that half of their cases will be no-shows because the parties resolved the dispute at the last moment.  We should send the copy without any reasonable expectations of them being read.  If the judge does not have your copy or clearly did not read it, do NOT roll your eyes or shake your head.

2) Have a concise presentation – 2 minutes tops!! This has little to do with the literal time limits of a motion calendar hearing and more to do with getting to your point immediately.  You should have one sentence of background about the case, one that includes your theme.  Consider a case by a buyer for specific performance on a real estate deal where no real estate contract was ever signed.  You represent the seller.  Your theme is that the contract is unenforceable under the Statute of Frauds, a concept we all remember back from law school.  You are at a hearing on a straightforward discovery issue.  Compare these two opening sentences:

“Your Honor, my name is John Doe, and I represent the Defendant in this three-count claim for specific performance, breach of contract, and violation of the Florida Deceptive and Unfair Trade Practices Act.”

“John Doe for the Defendant, judge; this is a case to enforce an unsigned real estate deal.”

I hope we can all agree that Option B is better.  Option A sounds more scholarly, but scholarly speech has long been confused with lawyerly speech.  The Court will value your brevity and simplicity, while your client will value the way you have driven home the theme of the case but with an accurate description of the case background.

Your next sentence should sum up the day’s dispute, again in one sentence and again with a healthy dose of advocacy.  In the same case, assume you are arguing a motion to compel the plaintiff, who has since moved to Texas, to appear for a deposition in your jurisdiction.  Compare these sentences:

“We are here on Defendant’s Motion to Compel Plaintiff, Jane Doe, to appear for deposition here in Miami-Dade County;  according to Rule W.XYZ, Plaintiff must appear for deposition in the Court where the case has been brought. . . ”

“Your Honor the Plaintiff has sought relief in this Court yet refuses to make herself available here for deposition.”

Again, I hope you went with Option B!!  First off, judges know all of the basic rules and a substantial majority of the complex rules.  You rarely need to cite a rule in open court.  Also, at the risk of alienating non-sports fans, consider the difference between watching your local sports team on most nights when the local announcers are calling the game with a clear bias to your team, compared to nights when your team is on national television with neutral announcers.  When you are advocating, be the local announcer!

3) Be sure you are bringing an appropriate issue to motion calendar. Fewer things upset a judge faster than when parties come before the Court with disputes on 9 interrogatories and 11 requests for production.  For an observing attorney waiting to go before the judge on another case, it is like watching a car wreck.  The attorney who filed the motion typically drones on while reading off an outline for 10 minutes while the court not only stops paying attention, but also gets angry that an attorney was presumptuous enough to bring an item before the court that clearly required at least 30 minutes.

4) Relax!  It’s motion calendar! Do not be mislead by this statement.  Any time you are in front of the judge is an opportunity to gain an edge for your client, either by winning the motion itself or by establishing credibility or rapport with the judge.   However, almost by definition a hearing brought on motion calendar will never single-handedly win or lose a case.  It is simply a small battle, not the war.  With this in mind, for new lawyers particularly, do not get swallowed up by the moment.  You will be back in these types of hearings hundreds of times in your career.  Embrace it.  Enjoy it.  Do not dread it.  I’m sorry to say that if you are overwhelmed with anxiety, chances are you will not be able to present your points eloquently.  Accordingly, practice your 2 minute presentation as many times as necessary until it is drilled into your head and impervious to nerves!!

I hope this is helpful and my apologies for making you wait past midnight for your Monday practice tip!

Explore posts in the same categories: Practice Tips for Young Attorneys

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