1st year here: I’ll be arguing my first motion in state court Monday (actually 3 motions: a partial MSJ and two Dauberts).

Any tips/advice for argument or preparation welcome!

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Your first motion you will be incredibly over prepared.

Listen to the judges questions and answer them matter of fact. If you lose the motion you lose it. Just give it your best effort.

Good luck. Welcome to the party.

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Exactly I’m a new attorney and solo practitioner. I prep like it’s an appellate argument and just answer questions mostly. Depending on the state you may have a tentative ruling prior.

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Do. Not. Lie. To. The. Judge. Not in any form. No omissions. No shading the truth. If you don't know the answer to their question, say so. You will feel an overwhelming desire to project the idea that you know everything there is to know about this motion in a desire to prove yourself (god I remember the pressure of being a first year) but it's not possible and there's always a curveball question the judge will throw your way. Just roll with it. Your reputation is all you have. Don't ever sully it.

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In my law school, professors told us not to ever lie to a judge constantly. Like all the time. So by the time I graduated, it almost seemed as ingrained as not walking into traffic.

Rehearse by recording yourself on your phone. Also, have two versions of your argument ready. One where you walk the judge through it because they didn’t read it and one where you do a more targeted overview because they did. You open assuming they didn’t (state court only, federal judges read everything).

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If you can today, if not first thing Monday, deliver a binder to the judge’s chambers containing: (1) your motion and exhibits (individual tab for each exhibit); (2) response and exhibits; (3) highlighted copies of any particularly important case law you intend to reference. On (3), be judicious and pick the top 5-6 cases, don’t include copies of every case cited in your motion. Also consider including copies of OC’s key cases, especially if you plan on distinguishing them.

I did this yesterday for a partial MSJ and the Judge not only commented at the start of the hearing how helpful it is, but on a highly contested evidentiary point I was able to direct her to tab 27 in the binder for a key case that, while not directly discussing the issue she was concerned about, clearly demonstrated that the court of appeals did not consider the issue to be essential. OC was trying to say case names but she read my case while we were on zoom and then overruled the objection.

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Check the judges local rules before doing this. Some judges want hardcopies, some don't

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1. highlighted/flagged copies of all exhibits you’re referencing in your argument and key case law (i usually bring 4 copies, one for me, one for oc, one for the judge, and one for the court reporter).
2. consider organizing your argument into a ppt slide deck to provide a copy. it gives the court a visual roadmap to your argument and a cheat sheet the court can take back to review if it takes the argument under consideration rather than ruling from the bench.
3. be confident! it sounds like you’re being entrusted to argue what sounds like a significant hearing. trust yourself—others do!

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As a former state court civil division clerk, I can tell you the judge has already made a decision 99.9% of the time. Argument is just a formality. If the law clerk didnt have time to prepare the bench memo or if the judge had any questions he/she would have adjourned the motion a cycle. So just relax. If im the moving party I usually defer to my papers and reserve

If judge decides not to rule on the bench its usually to have time to write up something bc he/she can tell from argument it might get appealed

Break down your argument into its key points. Stick to the mantra “once you’ve made the sale stop selling.” Watch the judge’s face. If you’re halfway through a point and you can tell they agree don’t waste further time on it, move on to the next point.

This is key to avoid irritating the judge and to not fritter away their attention.

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SC1...This is great advice.

If you stumble on any issue or don’t have an answer to something that the judge finds to be critical in ruling, offer to brief the issue for them and submit supplementals to the Court within 2 business days (this won’t necessarily help with the MSJ if your state has procedural requirements to have evidence submitted in advance but is good for other motions and shows the Court you’re willing to put in more work to get to a fair ruling). If the Judge denies your MSJ (depending on the facts/issue) you can ask for the ruling to be without prejudice so it can be re-filed at a later date once more facts are developed. Best of luck.

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No matter what court you are in, and now matter how prepared the judge, judges or justices are perceived to be, the best way to start is to tell the court what you want it to do and then list the bullet points supporting that relief. Example. This is a Daubert motion, and this Court should disqualify Expert Smith because he has not used a method that is generally accepted within the expert’s field. Indeed, peer reviewed literature shoes that his method is not reliable,but is affected by the following bias. Your argument should then follow the same basic outline until the court starts asking questions. Try to finish by reminding the court what you want it to do.

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Honestly shoes are important. You're going to be on your feet for a while if it's a complex argument

I always go into arguments as if the judge has not read anything that the parties have submitted - because that is usually the case.

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Great advice to have 2 arguments (for the prepared & unprepared judge). Start as though he/she is unprepared but pause and listen to judge's questions; you'll figure out quickly if you need to switch to the tighter argument.

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