Frequent Pincus Professional Education immigration speaker, Carl Shusterman of the Law Offices of Carl Shusterman, has recently published a blog clarifying President Trump’s latest executive order on Immigration. Read more here.
The following is a guest post from frequent Pincus Professional Education speaker Carl Shusterman. Carl has spoken at many of our California immigration programs including Asylum Law, Immigration 101 and our upcoming Visas 101. He has over forty years of immigration experience and served as an attorney for the Immigration and Naturalization Service (INS) until 1982 when he entered private practice. You can read the original post here.
By Carl Shusterman:
In the December 2016 issue of our newsletter, we summarized the new 366-page DHS regulation regarding employment-based immigration which will become effective on January 17, 2017.
In this article, we focus on the portion of the regulation which allows certain persons to obtain temporary automatic extensions of their Employment Authorization Documents (EADs).
Under the new regulations, the USCIS will no longer be required to adjudicate requests for EADs within 90 days. However, persons with existing EADs will be able to apply for extensions of their work permits 180 days (up from 120 days) before they expire.
The regulation designates the following 15 categories where people will be eligible for automatic 180-day extensions of their EADs as long as they submit timely requests to extend their EADs:
The rule does nothing to assist first-time applicants for EADs, nor does it permit automatic extensions of Advance Parole.
Many persons, such as spouses of nonimmigrants (L-2s, H-4s, etc.) are ineligible for automatic extensions of their EADs.
The automatic EAD extension portion of the regulation is more complicated than this summary of the rule would indicate. Small employers without the resources to regularly check the USCIS website or consult with immigration lawyers may find it burdensome to comply with the I-9 requirements that this rule will entail.
It is recommended that persons with EADs should submit applications for extensions of their EADs and Advance Paroles 180 days before the expiration date to protect their ability to work and travel without interruption. Doing so will also aid their employers.
Last week on the blog we shared a snippet on Opening Statements from Faith Pincus’ Being Heard: Presentation Skills for Attorneys, written by Karen Kimmey of Farella Braun & Martel LLP in San Francisco. Karen is a veteran speaker who continuously receives high ratings from our attendees.
The following is Part II of a the three part discussion on Opening Statements. Part I was published last week and you can find it here. Keep an eye for Part III next week!
Jurors often are quick to form opinions regarding the competence and credibility of counsel. Aside from voir dire (which is severely limited in many courts), opening statement is counsel’s first chance to make an impression on the jury. Jurors appreciate counsel who are efficient and respectful of their time, well prepared, credible and easy to understand.
How does a lawyer create such an impression with a jury? Aside from being well prepared and knowing the evidence, a lawyer’s delivery style and non-verbal behaviors will have a substantial impact. Every lawyer must determine the delivery style that is most true to himself or herself. A lawyer who is naturally reserved will look false if he or she puts on a flashy demeanor before the jury. A lawyer must work to maintain the jury’s interest, but too much drama or too many gimmicks in an opening are likely to fall flat, and potentially draw an objection. Speak clearly and with conviction – aim for the style of a trusted educator.
While notes are helpful to ensure that all important points are covered, counsel should never merely read from notes. Practice the opening statement until it can be presented with minimal or no reliance on notes. In particular, the first few minutes of the opening statement should be completely smooth and delivered without any reference to notes, if at all possible. Reduced reliance on notes will also allow counsel to make eye contact with jurors and to evaluate how they are reacting.
Research in advance what the judge’s expectations are regarding where counsel can stand during opening, and whether it is acceptable to step away from the podium and move around the courtroom. If counsel does choose to walk during the opening, the movement should be purposeful and not distracting. Counsel should be aware of any non-verbal tics or habits that might be distracting to jurors or might communicate shiftiness or nervousness. Counsel should be very familiar with the rules of the courtroom and facile with all use of visual aids, technology and documents to avoid any fumbling or distractions.
Almost all opening statements of any complexity will generally benefit from some type of visual aids. Counsel should think carefully about the types of graphics that will be most helpful. As mentioned above, timelines and bullet point outlines of the topics to be covered can be very useful in helping a jury orient itself to the facts in the opening statement. Other good options for opening statements include: (1) documents that identify the key players and witnesses by name, and perhaps with a photo; (2) graphics that explain processes or concepts necessary to understand the case; or (3) photographs or actual examples of important evidence (such as a photograph of an accident scene or a sample of a product alleged to infringe a party’s patent). Beware, however, of using too many visual aids or relying heavily on a power point presentation. Graphics can lose their power when overdone, and counsel can lose his or her chance to connect with jurors if the jurors are busy looking at a screen exclusively, rather than looking at counsel. Most courts require that the parties confer in advance about graphics to be used during opening statement in order to avoid any objections during the presentation.
Simply put, there are many ways to organize thoughts, ideas and themes. Pick an organizational pattern that is right for your presentation. Here are a few choices:
Recently Faith invited one of our speakers, Karen Kimmey of Farella Braun & Martel LLP in San Francisco, to write a chapter on Opening Statements for Faith Pincus’ book,Being Heard: Presentation Skills for Attorneys . Karen has spoken at our programs for many years, including at our Superior Court Boot Camp almost every year since 2011.
Karen’s expertise and ability to teach is what led Faith to invite her to write this topic for her book. We’re reprinting it in portions on the blog, to give you a taste of what is in the book!
The following is Part I of a three part discussion about Opening Statements, written by Karen:
Part I:
Opening Statements
The opening statement is the attorney’s first opportunity to tell the jury what the case is about and what the attorney expects the testimony and evidence will show. It is also counsel’s first real opportunity to establish his or her themes and build rapport with the jury. In order for an opening statement to be effective, it is critical that the attorney has carefully prepared, planned, developed, and practiced the opening statement. The attorney should discuss his or her theory of the case. The statement should include all of the uncontested facts as well as the client’s version of the disputed facts. It should be non-argumentative, logical, simple to comprehend, and believable. In short, the opening statement is storytelling.
Opening Statement Theme
Every opening statement should have a theme. The theme shared in the opening statement should be revisited throughout the case, and should be reinforced by the evidence. As a result, it is critical that the attorney is well prepared and has an intimate understanding of the facts, deposition testimony, witnesses, evidence, strengths, weaknesses, and jury instructions. This intimate understanding of the complete case will help the attorney develop the theme that will assist the jury in remembering and understanding the case from the client’s perspective.
Ideally, the theme will be one that resonates with jurors and is consistent with their existing views on how people act and what motivates behavior. The theme should be relatable and not legalistic. For example, a theme like “this is a case about a defendant who made a promise, but then regretted it and is now trying to get out of the deal he made” is more effective than “this is a case about whether two parties formed a valid contract.” Even the most complex or technical case should tell a human story.
Opening Statement Strategy
In order to deliver a case winning opening statement, the attorney should be efficient, non-argumentative, trustworthy, persuasive and strategic. As far as efficiency, jurors are often anxious to hear from the witnesses and receive evidence. In complex cases, the jurors may have been sitting around for days listening to the lawyers dig into their personal history and potential biases. Candidly, by the time the jury in sworn, they are tired of hearing from the attorneys and prefer to see and hear something else. As such, it is critical for the attorney to make good use of his or her time by providing the jury with a concise story of what occurred and what the evidence will show. Counsel should aim to present the opening statement in as little time as he or she realistically can. Rarely is it advisable to use all of the time permitted by the court for opening.
The opening statement is not argument. An argumentative opening statement will likely draw a sustained objection from opposing counsel, frustrate the presiding judge, and cause the attorney to become distracted or flustered. It is also important that the attorney does not oversell the evidence or testimony. If the attorney is unable to deliver on the oversold evidence or testimony, opposing counsel will remind the jury at closing. It is best to under-sell and over-deliver. Of course, the opening statement is also not merely a neutral recitation of facts – it should persuade through a clear and strategic recitation of the facts, not through argumentative rhetoric.
Counsel should anticipate the weaknesses in the client’s case and, if the weakness is admissible, volunteer the information to the jury. It is important that they jury believes the attorney is credible and honest. Attempting to hide the weaknesses or the damaging facts may cause the jury to think that the attorney and the client are attempting to pull a fast one.
Before presenting an opening statement to the jury, counsel should review the opening with colleagues and others with little or no familiarity with the case. If the case is not sufficiently large to justify a formal mock trial or retention of a jury consultant, family members, friends and law firm staff can be excellent sounding boards! Obtain feedback on the proposed theme. Push for honest reactions; explore the listeners’ questions and evaluate the effectiveness of the approach.
Occasionally we share parts of or written materials created by our speakers for our programs. Below is an excerpt on Motions for Summary Judgment from a long time speaker who also happens to be a federal court clerk at the United States District Court in California.
Our blog readers can take 50% off our Superior Court and Federal Court Boot Camp audio packages with the coupon code 50MSJ.
Motions for Summary Judgment and Partial Summary Judgment
The biggest difference between state and federal court with respect to motions for summary judgment is that a motion for summary judgment, if well-taken, is much more likely to be granted in federal court than state court. Because federal judges have their own law clerks, they are able to devote more time to motions for summary judgment, which is one of the reasons they tend to be granted more. However, because federal judges have more time and resources, they will also figure out if your motion for summary judgment is meritless. Therefore, if you are going to file a motion for summary judgment in federal court, you want to do the best job possible – it is a time-consuming motion for attorneys to draft, it is time-consuming for the Court, and it is expensive for clients.
Legal Standard
In federal court, a party may move for summary judgment on a claim or defense, or a part of a claim or defense (partial summary judgment). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” FRCP 56(a). In ruling on a motion for summary judgment, the Court’s role is not to weigh the evidence (or make credibility determinations), but only to determine if a genuine issue of material fact exists. . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining if any genuine issues of material fact exist, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party. Matsushita Elec. Indos. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. A material fact is a fact that might affect the outcome of the suit under the governing law. Id.
The moving party has the burden of informing the Court of the basis for its motion for summary judgment, and identifying the evidence, if any, “which it believes demonstrates the absence of a genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323 (1986). That evidence can consist of the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits and declarations.
When the moving party does not have the burden of proof at trial on a dispositive issue, the moving party may meet its burden for summary judgment by showing an “absence of evidence” to support the non-moving party’s case. Id., at 325.
The non-moving party is required by Rule 56(e) to go beyond the pleadings and designate specific facts demonstrating that there is a genuine issue for trial. Id. at 324. Conclusory allegations unsupported by factual materials are insufficient to create a triable issue of fact so as to preclude summary judgment. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). However, to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that the “claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968).
The Timing
Motions for summary judgment are governed by Federal Rule of Civil Procedure 56, and the time for bringing a motion for summary judgment is “any time until 30 days after the close of all discovery.”
However, this deadline will almost always be different, so, as always, you need to check the Local Rules, your judge’s local rules, and your case’s Scheduling and Case Management Order.
Motions for summary judgment can be brought as soon as you have enough uncontroverted evidence to establish your case. However, under Rule 56(d), if discovery has not yet closed, the opposing party can claim that “it cannot present facts essential to justify its opposition.” If the Court finds the opposing party’s claims meritorious, it can defer consideration of or deny the motion or allow additional time for discovery. However, Rule 56(d) requires the filing of an affidavit or declaration that demonstrates the “specified reasons” why the opposing party cannot present the facts essential to justify its opposition. Thus, conclusory statements in the brief are not enough.
And, do not forget that Local Rules may require you to meet and confer prior to filing a motion for summary judgment. See, e.g., Central District Local Rule 7-3.
Drafting Your Opening, Opposing, or Closing Brief
1. Follow the standard format for a motion: Introduction, Factual and Procedural History, Argument, Conclusion.
2. The introduction should tell the Court your side of the story in summary format, including why you win under the law and as a matter of fairness.
3. Have a theme that is presented in the introduction, and return to it throughout your brief(s).
4. Be organized! Make the Court’s job easy by making the facts and law contained in your brief easy to read, understand, and find. Headings that are meaningful are key.
5. Lead with your strongest argument.
6. But, be sure you deal with any contrary authority. Better to lose a motion than to lose your credibility with the Court. Once it’s gone, it’s extremely difficult to regain.
7. Be an advocate for your client, but do not be nasty or unprofessional.
8. Start your Opposition as soon as possible, even before you receive your opponent’s Opening Brief. The Opposition and all the supporting evidence is incredibly time consuming to draft and organize, and you may only have seven days in which to do it.
9. Some judges and law clerks really do read the Reply first, so do not simply cut and paste from your Opening Brief. The Reply is a huge opportunity to tell the Court what your opponent failed to address/argue or why their evidence and argument is inferior to yours (and, in either case, why you win).
10. Other judges and law clerks read the Statement of Undisputed Facts/Separate Statement (where required) first. Follow the format required, if one is given. Otherwise, make it easy-to-read for the Court. In addition, have as few facts as possible in your Separate Statement – not every fact you use in your brief must be in the Separate Statement, only the material facts that you are relying upon.
Tips Regarding Motions for Summary Judgment
1. Generally, all evidence must be provided to the Court, even if previously submitted in connection with another motion.
2. Organize your evidence as if for trial – tabs, labels, table of contents, etc. And, follow all the Local Rules and the judge’s local rules, no matter how silly they seem – they matter to your judge!
3. Do not submit blanket or boilerplate objections – this is a waste of time and resources.
4. Lodge a proposed order (Check Local Rules).
5. Lodge a proposed judgment (Check Local Rules).
6. If the other side files a motion for summary judgment and you agree that the issue is a matter of law, consider a cross-motion and a stipulated set of facts.
7. Do not attempt to sidestep the page limitation by filing multiple summary judgment motions or using crazy margins and/or font sizes – ask the Court for more pages if you really need them.
8. Do not assume you will have oral argument.
9. If you do have oral argument, be prepared, be prepared, be prepared.
10. Know the deadline for filing your motion for summary judgment, which is different than the last day for it to be heard.
Creating an Outline
Creating an outline can help you in several ways, but perhaps the most important is this: A well-crafted outline is all you need at the lectern to deliver a winning presentation. A truly well organized outline will allow you to sail through your speech without a hitch.
There are several wonderful software tools you can use to create outlines (Scrivenor, Evernote and MindMap spring to mind), but they are not essential. If you can put together an effective outline without digital assistance, do it. But don’t feel bad if you need the help. (Full confession: I’ve used these tools myself.)
The trick to creating an effective outline is to develop one that has just the exact amount of information you need – no more, no less. Put too much verbiage in your outline and you risk writing something you have to read verbatim, right off the page (as we discussed back here, reading a speech verbatim has a lot of drawbacks). Put too little on the page and you’re likely to forget some important point or other that you meant to make.
Be economical, but not stingy. Write in full sentences when you have to, bullet points when you don’t. Remember the acronym PEP: Point Explanation/Example Point.
Don’t Forget to Practice, Practice, Practice!
And, of course, rehearse. This cannot be emphasized enough. If you do not practice out loud, with your outline by your side, you will run into enormous trouble when the time comes to actually deliver your presentation. You will hem and haw, pause awkwardly or get completely lost. There is only one way to avoid these traps: PRACTICE.
Our speakers are always providing our attendees with helpful tips for their practice, and Jill Kopeikin of Kopeikin Law, is no exception. Jill is one of those speakers who provides fantastic handouts for every topic on which she speaks and she is an attendee favorite! Jill has spoken at many of our annual Superior Court Boot Camps and Federal Court Boot Camps.
Our blog readers can take 50% off our boot camp recordings with the coupon code 50FSC.
For one of our Superior Court Boot Camps, Jill provided a great tip-sheet thoroughly explaining the Final Status Conference (FSC). If you’d like to take a look at the full list of topics for our recent 15th Annual Superior Court Boot Camp (Oct. 2020), please click on the link provided.
So, there are a few things you need to know and think about when it comes to the Final Status Conference.
Written by Jill Kopeikin of Kopeikin Law
We hope you’ve found this list helpful and we encourage you to email us, or comment below, if you’d like more tips like these or have any questions.
Our speakers are always providing our attendees with helpful tips for their practice, and Karen Kimmey of Farella Braun + Martel is no exception! When she speaks at our CLE programs, Karen provides great handouts. She provided one on Summary Judgment Motions not too long ago.
Our blog readers can take 50% off our Superior Court and Federal Court Boot Camp audio packages with the coupon code 50MSJ.
Here are a few simple tips to improve your briefs:
MOTIONS FOR SUMMARY JUDGMENT
Practice Tips
We’re taught not to keep an audience hanging, but … well, let me tell you a story.
I once attended a presentation where the speaker used a very unusual technique in a presentation, but being the speak-geek that I am, I stashed it away and have put it to good use myself a number of times. Now I pass it along so more can give it a go — the secret is suspense.
It looked like the speaker had his work cut out for him when it was time for him to begin. This particular audience was full of members of a local chapter of the National Association of Speakers – a professional public speaker association – and we were all busy chatting with each other and catching up when his presentation began. But instead of calling for attention or announcing that he was going to begin his presentation, he began telling a very moving story. He told it well, using pauses, repetition and vocal variety to grab and hold our attention and create suspense.
We were hooked. The story was compelling, and he told it well. We weren’t thinking about listening — we were just listening. When he got to the climax of the story, he had us all on the edge of our chairs waiting to hear what happened next. Just as it seemed he was going to get to the big finish … he surprised us all by moving directly into his main presentation instead of finishing the story.
You could hear a collective groan from the audience – we wanted to know how the story ended! But he had us hook, line and sinker. For the next 45 minutes or so we were captivated by his performance and when his speech was finally drawing to a close, he returned to his story and finished it for us. It was an emotional, powerful story and you could look around the room and see the impact it had on the audience. Even more importantly, the story he told had a direct correlation to his message, which made the emotional punch of the presentation that much more effective.
So write the word ‘suspense’ and toss it into your mental toolbox. It could come in very handy. But there are a few things you’ll want to keep in mind about getting the most out of this technique:
Once you’ve got the story, the skill and the point, you’ve won the war before the battle has even begun.
