Panel Discussion on BLS Written Motion Practice: Key Takeaways

Earlier this fall, the Social Law Library sponsored a panel discussion entitled Written Motion Practice at the BLS: A Deep Dive on Effective Techniques. The four BLS judges—Judges Davis, Kaplan, Salinger, and Sanders—participated on the panel. Three lawyers also joined the panel: Maureen Mulligan, Peabody & Arnold LLP; David H. Rich, Todd & Weld LLP; and Daniel P. Tighe, Donnelly, Conroy & Gelhaar, LLP. Eric Magnuson served as moderator.

The discussion provided insight and practice pointers on diverse topics related to written advocacy in the BLS. Below are some of the key takeaways:

  • Don’t bury the lede in your motions; tell the judge up front what relief you are requesting and why your client is entitled to it.
  • The judges appreciate a table of contents at the front of a brief, especially if the brief is on the longer side.
  • Know the difference between binding versus persuasive authority.
  • Think twice before bringing a motion dismiss if non-movant can easily cure the pleading defect by amendment.
  • Support discovery motions with relevant facts. Plaintiffs should show why the sought-after documents are factually relevant; defendants should explain why—as a factual matter—production of the documents is unwarranted or should go forward under certain conditions only.
  • Unlike some states where lawyers regularly write letters to judges (e.g., New York), letter writing to the BLS judges is not the norm. The BLS judges frown on letters that argue the law, in particular.
  • Think about requesting a status conference on a discovery dispute before filing exhaustive discovery briefing.
  • Follow Superior Court Rule 9A (as amended); pay special attention to the rules governing motions for summary judgment.
  • When moving for summary judgment, resist the urge to file a motion to strike, unless critical to winning or defeating the motion.
  • Do not file for summary judgment to merely educate the judge about the case.
  • The judges are not opposed to footnotes in briefs, especially if used to set forth relevant but inessential information. But beware: BLS judges may (will?) deem waived an argument relegated to footnote.
  • Judge Sanders stated that she prefers citations in text, not in footnotes. She appears to be in Richard Posner’s camp, not Bryan Garner’s.
  • There’s no need for briefs to include a section setting forth the legal standard if the standard is well known.
  • The judges prefer separate motions in limine (rather than an omnibus motion).
  • If you’re filing multiple motions in limine, avoid including the factual or procedural background in each motion; consider stating background information once and then cross-referencing where appropriate.
  • Don’t resort to name calling or impugning the motives of the opposition.

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