Almost all motions and demurrers must be supported by a memorandum. Cal Rules of Ct 3.1113. Your supporting memorandum convinces the judge that the law and facts support the order you want. The objective is to persuade—the memo may be your main shot at doing so, as judges issue a tentative ruling or come to the hearing with a ruling in mind based on the motion and response papers.
Here are seven tips for making your supporting memorandum as persuasive as possible:
- Tell it to the judge. Don’t forget a basic rule that applies to all writing: consider your audience. The audience for your supporting memorandum is the judge, and in some courts, the staff attorneys. This audience often reviews your memorandum under great time constraints, so keep it brief, clear, and focused.
- Sum it up. Even though the judge may have heard earlier motions in the same case, don’t assume that he or she remembers everything that went before. Start your supporting memorandum with a brief summary that gives the judge the context in which the motion arises. Because many judges start review of the papers with the summaries and begin to form an opinion about the probable resolution of the dispute after reading them, these few introductory paragraphs are perhaps the most important part of your memorandum.
- Tell the judge something new. Don’t belabor the obvious or detail legal procedures and statutes. Not only does this require the judge to waste precious time, it communicates an offensive implied assumption that the judge probably flunked civil procedure in law school and hasn’t learned a thing about the subject since then.
- Put your evidence in its place. Organize your supporting memorandum for easy access. Use short paragraphs, section headings, and bullets. Follow all factual statements with a specific reference to the supporting evidentiary documents. Organize your supporting evidentiary documents with tabs, sub-tabs, and, if appropriate, sub-sub-tabs.
- Don’t hide the law. The principle of “the more the merrier” doesn’t apply to citation to authorities. Select your authorities carefully. If there’s one reported decision that clearly applies to the facts of your case, cite it; don’t bury key citations among six others.
- Follow the rules. Be familiar with, and follow, the California Rules of Court relating to the preparation of the supporting memorandum. See Cal Rules of Ct 3.1113. Lawyers who demonstrate their ignorance of the rules and citation style requirements may not lose their motions because of it, but those who follow the required rules are more likely to impress the judge with their competence.
- Tell the judge what you want. Make sure that the reader of your supporting memorandum knows exactly what relief you seek. Conclude your memorandum with a short paragraph summarizing why the court should grant specific relief, including a clear statement of the relief requested.
This advice is adapted from an article written for CEB by the Honorable W.F. Rylaarsdam, Justice of the California Court of Appeal for the Fourth District. Get specific guidance on preparing a supporting memorandum in CEB’s California Civil Procedure Before Trial §§12.44-12.58.
Other CEBblog™ posts you may find useful:
- A Brief Browse on Briefs: Writing Tips from a Judge (part 1)
- 5 Creative Writing Techniques for Your Legal Briefs
- Should I Go for (Wr)it by Noticed Motion or Alternative Writ Procedure?
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