On March 5th, Jane Chuang and Rosanne Felicello co-chaired an ** event at the NYC Bar Association on the “how-to" of successful motion practice. The panelists included ** Justice Barbara R. Kapnick, NY Supreme Commecial Division, NY County; ** Judge Jed S. Rakoff, U.S. District Court, Southern District of New York; ** Acting Justice Salliann Scarpulla, NY Supreme, NY County; and ** Peter Tomlinson**, partner at Patterson Belknap Webb & Tyler LLP. Here are the key takeaways:
Motions to Dismiss
What you should consider before bringing one:
What types of documents you can submit with your MTD:
You can submit admissible evidence in the form of affidavits or documents with your motion to dismiss. Although the rules in both federal and state court allow them to be converted to summary judgment motions, in practice judges rarely convert them. Justice Kapnick said that she almost doesn’t ever convert motions to dismiss and Judge Rakoff noted that he only converted a motion to dismiss to a motion for summary judgment when he was dealing with a statute of limitations issue.
Motions to Re-argue/Re-consider
Don’t bring a motion for re-argument or re-consideration unless you are pointing out an error in calculation. It is more cost-effective to simply appeal because is extremely unlikely that the judge is going to change his mind. And your new motion merely gives the judge an opportunity to improve the record to support his initial ruling, especially where the motion for re-argument or re-consideration is an (improper) attempt to add something to the record.
Motions for preliminary relief
Motions to compel
The clear message from the panel was that motions to compel are the least-favored motions. Overbroad discovery requests will not be sustained. In state court, discovery disputes are almost always resolved by conference. In the commercial division of state court and in federal court, the rules require that the parties meet and confer before bringing a motion to compel. In federal court, the Rule 26 conference at the beginning of the case sets the discovery that will be allowed. Many federal judges send discovery issues to their magistrate judges.
Because judges hate dealing with these motions and they generally turn on specific facts, it is better to resolve these issues orally either at a scheduled conference or via a teleconference to the court.
Summary judgment motions
If the opposing side can point to a dispute of a material fact, the summary judgment motion is a waste of time. Some cases are not winnable by summary motion. Don’t waste the court’s time making a SJ motion if there are issues of fact. In general, tort cases are less amenable to being resolved a motion for summary judgment than a contract case. If you are making a summary judgment motion, be sure to submit the evidence necessary for the court to rule in your favor. For instance, if you are filing a summary judgment motion in a contract case, be sure to attach a copy of the contract to the motion.
Motions in limine
Most judges allow motions in limine to deal with across the board issues regarding particular evidence, such as any mention of an ongoing investigation into the same subject matter by a third party. You do not need to use a motion in limine to exclude the evidence, you can ask that it be excluded at trial instead, but if you do you risk the cat getting out of the bag.
You should not make a motion for summary judgment in the guise of a motion in limine. Motions in limine should deal with evidentiary issues, not substantive issues.
Perhaps not surprisingly, judges dislike post-trial motions. It is easier to be successful on a post-trial motion if you are seeking to reduce a jury award rather than throw it out. Judges are not very receptive to motions to set aside the verdict. Further, if the award amount was determined by the bench, then there is little reason to make the motion.
Motions for sanctions
Judges do not often grant sanctions. Sometimes, you may be able to recover costs, but judges generally lean towards allowing zealous representation. If you cross the line with your advocacy, judges are generally inclined to let you know that they know rather than award sanctions.