So much emphasis and effort is (rightfully) put on your moving papers on your noticed motion, but don’t forget to prepare for the hearing. Even if you have a hunch how your motion will go, there’s still much to be gained from the hearing itself.
To state the obvious, the hearing on your noticed motion gives you an opportunity to persuade the judge to decide the motion in your client’s favor. But less obvious is that it also permits you to see how the judge and adverse counsel perceive particular aspects of the case and allows you to clear up any confusion or misconception.
To get the most out of the hearing:
Plan for it. Make sure to plan your argument and don’t just rehash points made in the filed memorandum and declarations. Remember that you are making an impression on the judge and opposing counsel; use the opportunity to its full advantage.
Be flexible. Begin your argument by stating points that support your position, but be flexible, prepared to answer questions when asked, and ready to shift to issues that the judge wants discussed.
Have your references ready. If you’re going to cite a statute or case in your argument, include the page where the judge can find the citation in the motion or opposition papers. It can be helpful to tab portions of declarations or documents to which reference may be necessary.
Prepare by asking yourself key questions. As you prepare for oral argument, consider and be prepared to address the following points:
- Were any arguments in favor of (or against) the motion omitted from the memorandums?
- Is new evidence available or needed?
- What points in your own memorandum or documents need to be highlighted?
- What points in the opponent’s documents are easily refutable?
- What reasons, if any, might give the judge difficulty in reaching a favorable conclusion?
- Are there points of compromise to suggest if the judge seems to be leaning the other way?
Want more advice for handling law and motion practice? Check out CEB’s new book California Basic Practice Handbook, chap 5. CEB also has you covered on noticed motions in California Civil Procedure Before Trial, chap 12. For more practical pointers on crafting and delivering opening statements and closing arguments, CEB’s program Effective Approaches to Opening Statements & Closing Arguments is available On Demand.
Here are other CEB blog posts you might find interesting:
- Should I Go for (Wr)it by Noticed Motion or Alternative Writ Procedure?
- 10 Things to Check Before Moving for Summary Judgment
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