Motion Practice is the New Trial Practice

September 19, 2017


Since a large percentage (upwards of 95%) of cases are settled well before trial, your only opportunity to argue your case before the court begins, and frequently ends, in motion practice.  Your advocacy is particularly crucial in a motion for summary judgment when the case may be continued or cast aside based upon your argument at court and in the brief.  Beware of the misconception that motion practice is just that -- “practice”  --  for the “real”

test of trial.  Very often, there is no trial.  Preparation of your papers and for your argument is key. 


My first point:  prepare for your motion as you would for trial.    


Motion practice is governed under the Civil Practice Law and Rules (CPLR), Section 2214.  The procedure is specific in the statute, so follow it as required, and don’t forget to include the exhibits to back up your argument, including tabs for the judge!  Believe it or not, the most crucial document in your motion papers is the Notice.  If it does not accompany your filing, the motion will not be entertained by the court.  Contrary to general and routine procedure, I suggest that you expand the statutory time for response.  Sometimes, softball is the better game plan in your strategy.  By providing the opposition with a longer time to prepare his/her papers, you may derail your adversary’s argument that (s)he did not have sufficient time to address the issues. 


My second point:  now you can play hardball. 


You are cautioned to never use an Order to Show Cause in lieu of the standard motion papers.  It will raise the ire of the judge, unless, of course, the case demands expediency.  Examples of such immediate attention may be dissipation, damage or secretion of the assets underlying the action.  Remember, also, to check out the jurisdictional limitations in the local lower courts.  In particular, New York City has a separate Civil Court Act.  While the issues are similar under the CPLR, your civil court action may be constrained to monetary ceilings and other specific applications.


Civility Counts.


I want to spend some time in my closing remarks on court demeanor and collegial conduct.  It seems to be on a downward spiral.  I witnessed it when I was on the bench and according to a sizeable number of colleagues, it appears to be escalating.  I have heard recent comments relating to uncivil, hostile, even brutal, behavior by our brethren.  The key is to keep your cool, without retort, i.e., avoid playing in the mud.  Be forewarned that the judge does not like such demonstration, and whether or not the jurist steps in to stop the fray, it will register.  My third point:  disrespectful conduct does not win favor. 


Do not be stonewalled by a continuing lack of communication by your adversary.  Keep making contact and noting each attempt.  If necessary, apprise the court of your perseverance, to no avail.  Speaking from my own experience as Judge, the Court recognizes that a lapse in communication slows the process, so the chances are favorable for some judicial intervention on your behalf.  


The bottom line is to serve your clients competently and professionally.  In order to reach that objective, I request that you keep two thoughts in mind that summarize my points:   Preparation and Professional Conduct.


Working with you to raise the bar.                             Eileen N. Nadelson



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