Civil Law and Motion Practice in Contra Costa County: A View from the Inside
After a lengthy career in private practice, I took a position with the court as a Research Attorney. If I’d only known then what I know now! Unfortunately, I can’t go back and do it all over again. But I can pass on a few tips about how to provide better advocacy for your clients.
Let’s start with some general ones first.
Litigation is stressful. The drive to do well for your client can lead to personal animosity with opposing counsel.
Delete all trace of this from your papers. Anyone who has ever had two children knows that the first instinct on hearing bickering is to order both children to go to their rooms, and ignore pleas of “But he started it!” There was a crime show from the 1960’s where the tag line for one of the lead detectives was “Just the facts, ma’am.” Write your papers with that adage in mind.
There is no resource more precious than your credibility with the court. Never risk losing it. Don’t twist the facts or the law. There is nothing more frustrating as a research attorney than realizing that an attorney is distorting the law, for instance, by taking a few words out of context from a case and suggesting they mean more than they do. This practice is offensive too, suggesting you think the court is not astute enough to realize what you are doing.
Many briefs are longer than they need to be, saying the same things repeatedly or containing long passages of boilerplate on topics such as the standard for ruling on a demurrer or a motion for summary judgment. Consider deleting all or most of this. The court has heard it all before. The judges’ eyes glaze over on reading it, and it adds nothing.
4. Number of authorities
No prudent attorney risks stating a significant proposition without citing supporting authority. On the other hand, no research attorney wants to read twenty cases when he need read only three. Cite one case on the basic rules that apply to your case if possible. Then highlight in some manner the key cases on which the ruling turns, for example, “This case is controlled by Rowland v. Christian.”
5. Make it easy
There is a real-life reason for most of the rules of court. Working for the court is not like working for a large law firm with vast resources, including large clerical support staffs. File your papers on time, particularly your reply papers or they may not arrive soon enough to be considered. Tab your exhibits so the court can easily find the key evidence. Be particularly careful about this when filing papers with exhibits through Fax and File, as the exhibit dividers on your file copy do not always appear in the court’s copy.
Provide tables of authorities in longer briefs. Number your objections so less typing is needed to draft a ruling. Number the items you want to be stricken when moving to strike for the same reason (and because it is required by the California Rules of Court). In both cases, be specific about the language to be stricken or ruled inadmissible, or your request may be denied.
Now for advice on specific aspects of law and motion practice.
6. Moving papers
Opening statements such as “Comes now plaintiff and files his demurrer to the Complaint” are unnecessary. When we read an accurate title, we know what you are filing.
Occasionally a related issue occurs with Opposition papers, and the party filing them starts the Opposition with Notice of Motion language. You do not need to give notice of your Opposition as you do of a motion. You simply file and serve it, labeling it an Opposition. This is all the notice required.
8. Reply papers
In addition to the tips provided above, do not offer totally new argument and authorities for the first time in the Reply Brief except where the need to do so could not have been anticipated. It is not fair to the other side. Further, the court may see the Reply too late to read new cases anyway. If you know something is important from the outset, put it in the Opening Brief.
9. Demurrers and motions to strike
A non-trivial number of these seem silly or avoidable. A meet and confer requirement applies to both as of January 1, 2018. A meet and confer by letter alone is insufficient. Defendants should not file demurrers unless there is a reasonable prospect of having a cause of action dismissed at the pleading stage. Plaintiffs should cure all possible defects by amendment before finally seeking a ruling from the court on the remaining issues.
As for demurrers to answers – really?
10. Motions for leave to file an amended complaint
Defendants should usually just stipulate to amendments, as amendment is liberally allowed.
11. Motions for summary judgment
In the abstract, it is understandable that a party fearing a motion for summary judgment will draft as long and as messy a responsive Separate Statement as possible in hopes of giving the impression that there must be a material disputed fact. It is not effective advocacy, however. It simply again attempts to mislead the court and offensively assumes the court is too imperceptive to realize it.
A more effective approach is to focus the court immediately and squarely on the limited number of disputed material facts that are necessary to compel denial of the motion.
Limit the number of objections and offer them only to the most key evidence. There is little that is more tedious than working through 50 or 100 objections, and there is a great danger of falling into the trap of the boy who too often cried “Wolf!”
Follow the tip above about numbering the objections and objecting to specific language and not, lazily, to longer passages that contain admissible material.