4 Trial Lawyer • Winter 2024 By Judge Angela Franco Lucero Multnomah County Circuit Court Motion practice is a fundamental tool of litigation and can play a key role in the development of a case. Courts rarely act on their own, so it is up to the parties to move their cases through the litigation process. Motions are designed to ensure that disputed issues in cases are brought to the attention of the court, and are resolved quickly and efficiently, so cases can ultimately be resolved, either through settlement or trial. Motions can affect the nature of the pleadings, discovery permitted to be disclosed, evidence, testimony or even result in a complete or partial dismissal of the case. While any party can file a motion at any stage of the litigation, it does not always mean that you should. Discretion is key. When considering whether to file a particular motion, it is essential to consider the purpose of the motion, how filing that motion will impact the overall strategy of the case and how the court will react to such a motion being filed. What follows are some tips to consider when drafting and filing motions. Be persuasive Persuasive writing is written advocacy. Motion practice is your opportunity, in writing, to convince or persuade the court to rule in your favor. The most View From The Bench Hon. Angela Franco Lucero A judicial perspective on motion practice effective legal writers are those who can present a clear, concise and reasoned argument, supported by law and explained by facts. Persuasive writing makes the court want to rule in your favor and makes it easy for the court to do so. When writing motions, assume the court knows nothing about your case. Remember, no one knows the facts as precisely as the attorneys. You must set out the issues, relevant facts and legal arguments with a clear and concise point of view. Tell the court what relief is sought, together with the motion standard or appellate standard of review. Use and cite the law that most clearly supports your client’s legal argument. UTCR 5.020(1) requires all motions to include a memorandum of law or a statement of authority explaining how any relevant authorities support the contentions of the moving part. Do not avoid contra legal authority, but rather address how that specific authority either does not apply or is not directly on point. Correct use of legal authority is persuasive and bolsters the credibility of the attorney and the integrity of the legal research. Stay focused on your case and why your client should prevail, rather than on why the opposing party should lose. If there are facts that are dispositive to your argument, address them in your motion. Do not wait for your opponent to raise the dispositive facts in their response. This only minimizes the strength of your argument. Do not use rhetorical questions and avoid overly dramatic statements. Such arguments or statements reduce your credibility with the court and fail to progress your argument. Professionalism matters It is important to remember that professionalism matters, not only in the courtroom, but in your written motions as well. The court expects all attorneys to conduct themselves with the utmost professionalism. Do not attack the parties, opposing counsel, judges or any other person in your written motions. Personal attacks are not persuasive. Personal attacks waste time and only serve to cast the insulting attorney in a negative light. There is no quicker way to lose credibility with the court than to resort to personal attacks. Judges universally dislike attorneys using motions to insult, belittle, ridicule, or make snide remarks or comments about the parties, opposing counsel, or the court. Regardless of who initiated the personal attacks, such language has no place in pleadings, motions or any other legal documents. When a motion contains personal attacks, do not be tempted to respond in kind. Instead, take the high road. The court will notice your restraint and professionalism. The importance of conferral UTCR 5.010(1) and (2) provide that
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