Align legal arguments with the motion’s procedural posture.
Procedural rules should be top of mind when deciding how to write your brief and what authority to rely on.
This post is excerpted from Ryan McCarl’s book Elegant Legal Writing (Univ. Cal. Press 2024).
Most litigation motions are made by invoking a procedural rule that allows litigants to file that type of motion. Different motions have different procedural rules that constrain what facts judges may consider and what law they must apply. These procedural rules should be central to attorneys’ decisions about how to write briefs supporting or opposing the motion.
Briefs that seem unaware of procedural constraints—for example, motions to dismiss that introduce facts from sources other than allegations in the plaintiff’s complaint—put you at risk of losing the court’s trust.
Procedural context also affects which authorities you should cite to support or oppose a motion. It is more effective to cite cases that were decided in a similar procedural posture or one even less favorable to your side. For example, if you represent a plaintiff and need cases to cite in opposing a defendant’s motion to dismiss, look for cases where an appellate court reversed a trial court’s dismissal order. If you deviate from this rule and rely on cases involving different procedural standards, alert the judge if there is any risk that they might feel misled. Here’s an example of how to do so in a case parenthetical:
Aeroflot ignores James’ citation to the Seventh Circuit case Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., which does not relate to removal or subject-matter jurisdiction. See 522 F.3d 776, 786-87 (7th Cir. 2008) (holding, in an appeal following a bench trial, that a plaintiff could pursue a setoff claim under Illinois law).
Try to choose favorable battlegrounds for your arguments so that the procedural rules favor you rather than your opponent. That might mean, for example, deferring a challenge to the opposition’s claims until trial instead of trying to hit an early home run through a motion for summary judgment. At trial, the plaintiff will have the burden of producing evidence for their claims and proving each of those claims’ elements without the benefit of favorable procedural rules.
Here’s another good example, a legal standard section that uses its space effectively to show that the court has little choice but to grant the motion:
II. Legal standard for Anti-SLAPP fee motions
A party that successfully moves to strike claims under California’s Anti-SLAPP statute is entitled to recover their costs and attorney’s fees, including the fees incurred in preparing both the motion to strike and a later motion seeking to enforce the statutory fee provision.
Statutory fee provisions are designed “to provide financial incentives necessary for the private enforcement of important civil rights.” The Anti-SLAPP statute’s fee provision is broadly construed to carry out the legislative purpose of reimbursing a party for expenses incurred in extracting themselves from a baseless lawsuit. [citations omitted]
As with any argument device, emphasizing a favorable standard can be overdone. For example, I have seen plaintiffs’ attorneys file briefs opposing motions to dismiss in which most of the brief elaborated on the procedural standard. Such overlong procedural standard sections conclusorily imply—not by analyzing the complaint’s allegations, but by accumulating pro-defendant quotations from judicial opinions denying motions to dismiss—that because the standard is difficult to meet, the defendant has not met it in the current case, so the motion must be denied.
Ryan McCarl is a founding partner of Rushing McCarl LLP and the author of Elegant Legal Writing (Univ. Cal. Press 2024). For more writing tips, subscribe to the Elegant Legal Writing newsletter and follow Ryan on LinkedIn. McCarl’s book is available on Amazon.
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