A Cynic's Gudie to Civil Litigation; Chapter 8 - Motions - As in "going through the..."

There is a whole world of practice called “Motions Practice”. It is mostly abused. Attorneys tend to over-litigate everything. The reasons for this are largely because we don’t want to be faulted or sued by our client if something goes south and there are hard feelings. This happens quite a bit. It is generally not the attorney’s fault. There is a slew of reasons why your case will fall apart. But, if we humans didn’t have some sick desire to blame someone for when our lives hit the shitter, there wouldn’t be a need for civil litigation. Of course, there is always the attorney who is looking to increase billable hours to get more money out of you so feel free to grill your lawyer on the reasons why you are getting a huge bill for motions. If your bill is not itemized, tell him you want it itemized and then grill him.

Be forewarned. Court’s will set up rules for motion practice designed to resolve an attorney’s complaint about the litigation before the attorney files a motion. You will need to look to the rules, so you don’t get kicked out of court before your motion is heard. Most likely there is a rule or rules in your state that require you “meet and confer” or certify you have met and conferred before you file any motion. The idea is to get you to talk to Johnny Doe and resolve your differences before you involve the court.

Guess what? Don’t be shocked if it does'nt work. It doesn’t work 99% of the time. Why? Well, remember when I told you all lawyers think they are the bee’s knees? (An old saying for saying we are the best) Our ego gets in the way. We tend to disagree Johnny Doe has any rights whatsoever, or we are looking for something ridiculous in trade for what Johnny Doe wants. It just does not work. So, we certify, or do whatever we are supposed to do, so we can file a motion and get the court involved. You can call us children. We are in good company. We are not as bad as the United States Congress so that’s a positive.

Before you start composing any motion, figure out what you are asking for from the Court. You should have the format of anything you are filing from your answer or complaint. You can just copy that caption over to a new document and add a title and language but check your rules. You will need to find out if there are forms you need to file with or instead of your motion. You also want to check if there are some other documents you have to add to the motion, like a memorandum, an affidavit, or a proposed order. Follow the rules. They are there to drive you crazy. So let them, otherwise you just piss everyone off and get nothing done.

The truth here is simple. Rules are intended to handle everything that will commonly happen or need to happen to get a civil case through the court to trial and to a decision. Rules are routinely modified to meet new situations or to fill in gaps. The other truth is that rules cannot cure every eventuality and some attorneys are just difficult people. Expect to get hit with motions and expect you will have to file motions.

Remember, if you file a motion or an opposition, ask for sanctions if you prevail. If you truly have a viable position and Johnny Doe is unreasonable, you are entitled to ask they are punished either in money or in some other way like the exclusion of evidence.

War Story I sued a lawyer once. My client was a lawyer. Both lawyers were a piece of work. My client had been disbarred and was no longer practicing. The lawyer I sued was “good on his feet” but had a larcenous heart and was a nightmare administratively.

They had been friends and when it was clear my client was going to be disbarred, they had agreed that the lawyer I sued would take over my client’s cases and they would split the fee. The fee split was not the problem. The problem was that the lawyer had refused to pay my client the one-half fee which amounted to about $80,000.00.

The lawyer who had collected the fees had failed to keep any records of the fee, which was a violation of rules regulating lawyers. He had done this on purpose to confuse the issue of how much he was to pay my client. He also refused to disclose any records of the fees because he said they did not exist and were privileged.

The Court sanctioned him and blocked him from introducing any evidence in contravention of the written split fee agreement. He attempted, several times during the jury trial, to get in evidence that they had agreed to split the fee but not tell the IRS, but the Judge blocked him. On one occasion, the Judge chastised him for attempting to get the evidence in despite the Court order. This happened in front of the jury which was the last straw.

The jury returned a verdict in favor of my disbarred lawyer client.

The other lawyer didn’t pay the judgment. He was disbarred shortly after the verdict because he had lied to a client about money and kept most of the award to that client.

If there is a leeson here, it is that if a motion is filed against you, oppose it and fight against an order compelling you to do or not do something. If you lose, behave. Refusing to recognize the Judge's power over you may make you feel like a rebel and principled, but is not a very constructive way to get your point across. If you win your case, it will not matter a fig. (another old saying). If you lose, you can always "take it up" (appeal)