Defeating Motions for Summary Judgment: The Reply Brief

Below is a list of suggestions for drafting your Motion for Summary Judgement Reply Brief. It was written by James Allen, Retired Assistant County Attorney of Miami Dade County, and James Robinson of White & Case LLP who have both taught at several of our prior programs!

Remember – standards and burdens of proof.

  • The non-moving party is required to designate facts which demonstrate a genuine issue for trial and must avoid conclusory allegations unsupported by factual material.
  • The non-moving party need only prove a material factual dispute.
  • All reasonable inferences must be drawn in favor of the non-moving party.

Structure of brief.

  • Introduction – what is your theme?
  • Factual background
  • Argument
  • Sections (and section headings)
  • Conclusion

What are common defenses/themes when opposing motions for summary judgment?

  • Attack the facts.
  • Attack the law.
  • DO NOT focus an inordinate amount of space (or case citations) on the standard of proof or that reasonable inferences are drawn in your favor.

Strategies for contesting/disputing facts.

  • Choose your battles – do not contest EVERYTHING! This is a matter of credibility.
  • You must be specific in contesting/disputing facts – cite to specific language (with page numbers) and testimony. Include quotes. Emphasize important pieces of evidence.
  • If there are no disputed material facts on any issue and you agree that the issue is a matter of law, consider filing a cross-motion and a stipulated set of facts.

Addressing legal arguments made by moving party.

  • Don’t be bound to the organizational structure of the moving party. Example: If they have hidden a glaring weakness in the middle or end of their brief, bring that issue to the forefront in your opposition.
  • But don’t ignore the motion altogether – a good response brief must “respond” to the moving papers.
  • Address all arguments – failure to address can be viewed as a concession.
  • Distinguish all cases cited in the motion.   Where there are many cases, distinguish the cases in large groups.
  • Don’t submit boilerplate objections—tailor your arguments to your facts.

Using legal authority (applies also to motions).

  • The preferred priority of cases in support of our arguments:
    • First priority –cases in which trial court did what our opponent is requesting, and the appellate court reverses.
    • Second priority (OK, but not as good) – cases in which the trial court did what we request, and the appellate court affirms.
    • Third priority (not good; but we are a bit desperate) – only if none of the first two categories are available, cases in which the court cites a correct legal principle, but the court rules against our position.

A word about reply briefs.

  • Structure:
    • We demonstrate/established X.
    • They did not controvert/challenge/dispute, but only argued Y.
    • This is incorrect because …
    • Their cases do not change the result (and distinguish).
  • As a general rule, DO NOT cite the same cases from your motion – a reply brief should “reply” to the response

Introduction to Oral Argument

argument

We wanted to share with you some tips and advice from speakers at prior programs that we know you will find helpful! Check out this list of Oral Argument tips, created by Andrew Livingston, who has spoken at many of our Superior Court Boot Camps (and is speaking at our upcoming one this fall, 2018).

Let us know what you think!


Objectives

  • Learn how to prepare written materials for oral argument
  • Learn how to prepare for the spoken part of oral argument
  • Learn orienting devices to help your audience understand where you’re going.
    Learn how to deal with questions:

    • Cold benches, i.e., no questions
    • Hot benches, i.e., lots of questions
    • Answering questions
    • Moving on after a question
    • When to concede a point versus standing your ground
    • What to do when you don’t know the answer
  • Learn effective rebuttal

Preparing for the Argument

  • You should be developing your outline as you develop your knowledge of the facts and the law.
  • Your outline will probably start off very long; use the outlining process to refine your points over the course of multiple drafts.
  • Your goal should be to get your outline down to a single page, with single-sentence bullet points which you can reference during argument.
  • Consider coming to argument with a folder with:
    • your one-pager on one side; and
    • more detailed notes on the other side
  • Your folder is your security blanket; if you’re prepared, you might not need it at all.
  • The order of your argument can be just as important as the substance.
  • Think about placement, i.e., where within the argument you want to emphasize good facts and law, and where you want to [bury] bad facts and law.
  • Is there a bad fact or a bad case you want to get out in your opening so you can distinguish or neutralize?
  • Set aside dedicated time to practice your argument by yourself.
  • The goal is to get to the point where you won’t need to read from your outline.
  • Depending on time, resources, and the argument, you may wish to have a moot court session
  • If you do a moot argument, make sure the participants are:
    • familiar enough with the case to ask the right questions; and
    • can offer constructive feedback on your argument style
  • If this is your first argument—ever, or before this court—try to visit the court beforehand and watch another argument
  • Learn the layout, e.g., will you use a lectern or a table? Where is the countdown clock? Can you raise or lower the lectern? Where’s the water?
  • What are the judges’ names and where will they be seated?
  • How has the judge(s) ruled on this issue before?

The Argument

  • The first thing you need to know about speaking is that listening is at least as important.
  • The court will let you know what it’s interested in hearing, which often is not what you’re interested in saying.
  • If you’re prepared, you’ll be ready to listen to the court and adjust your argument accordingly.
  • Starting off with a concise, precise roadmap will help set up the audience’s expectations
  • Quickly state the relief and the reasons why the relief should be granted.
  • Use signposts in your argument to orient the audience
  • Let the court know when you’re moving to another point, and use that opportunity to once again map out your argument for the court.
  • Regarding plaintiff’s request for injunctive relief, the court should deny the motion because….
  • Make sure you understand questions asked, and clarify if necessary
  • TAKE YOUR TIME before
    • This is one of the hardest skills to learn in oral argument
    • Pause and think before answering
  • Resist the urge to fill the silence by saying the first (possibly incorrect) thing that pops into your head

Oral Argument Tips by Karen Kimmey

argument

Here’s another “How to” list of tips, from the do’s to the don’ts, from one of our favorite (and most loved by attendees) speakers at prior CA Superior Court Boot Camps –  we know you will find these helpful! Let us know what you think!

And don’t miss our upcoming 13th Annual Superior Court Boot Camp set for October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco.


Oral Argument Tips, by Karen Kimmey of Farella Braun + Martel, and one of our favorite Superior Court Judges in Los Angeles.

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.