Spring 2017 - Practical Skills on Motion Practice

by Brian McLaughlin and Grace Roessler

In an effort in to continue our practical tips series, this article will cover general motion practice and some of the more complicated problems that occur with filling a motion.1

General Motion Tips:

One of the most important questions that you should ask at the outset of any contemplated motion is, “What does this motion need to accomplish?” This is the first questions that I ask whenever I am writing a motion. I often will ask one of my students to hear my motion idea, to make sure that it conveys the message I am trying to get across to the judge. It is easy to forget that a judge reads hundreds of motions during the course of a day and has no idea of the facts of your case. They need to be brought up to speed quickly.

The second most important part of a motion is the caption. Be aware that the heading is all the judge may read. So take the time to invent a creative heading to tell the judge explicitly what you want. I would also suggest reading the Family Probate Rules of Civil Procedure; however, civil procedural rules can be opaque, especially if you are confronted by a situation you have not encountered previously. Try writing your motion first, and then trying to figure out which category you can fit the motion under. Always keep in mind that motions are tools to accomplish a specific end. For instance, you would first want to decide whether this was a pre or post-judgment motion, or some type of special circumstance. Then you would want to decide which Family and Probate Court rule this motion fits under.

If you are writing a post dispositional motion, consult Probate and Family Court standing order 2-99. Standing order 2-99 lays out additional requirements in formatting and captioning certain post dispositional motions: you must reference the rule you are using in the title of the motion, and you must reference the judge that made the original decision in the same place. For example, on a motion for relief from judgment, the motion would be captioned: Plaintiff’s Motion for relief from judgment dated XX/XX/XXXX entered by Judge XXXXXXX pursuant to rule 60(b).

Another question you may want to ask yourself is “How many other motions have been filed on your case?” You may want to reconsider filling if the case has a long litigation history over a short period of time. To prevent confusion, you could consider using a motion to consolidate court dates if there are many motions on file. For example, you may want to file a motion to consolidate a contempt and a child support hearing on the same day. This way, you are saving the court resources (the clerk will be happy), as well as starting on the right foot with the judge.

If it is a motion you have not filed before, consult with colleagues for suggestions and tips as to how they might approach filing the motion. I have found it best to ask two or three colleagues whenever possible, especially if it is a complicated motion or chaotic case. Divorce lawyers tend to live their cases, and there is a distinct benefit to having fresh eyes that haven’t been embroiled in six months of litigation review your work.

The next issue is to figure out what, if any, exhibits to attach to your motion. While some lawyers differ on this point, I find that a ‘less is more’ approach is most effective. Consider highlighting certain parts of your exhibits to direct the judge’s attention. But be careful not to overwhelm them with 60 pages of exhibits.

I would also call the clerk and ask how the judge may approach your situation. You may need to trigger the clerk’s memory as to who you are. I often use “the guy in the wheelchair.” I have seen colleagues use “the guy with the bow tie” or “the person with funky suits,” anything that will help the clerk remember who you are or what the case is about. I find that this form of back-channel advocacy can be more effective than ‘putting on a show’ a court. The feedback from the clerk may also give you some clues on how you should adjust your motion. You may need to re-word the way you’ve written your position to best advocate for your client. Remember that AJCMs and Clerks see their judge working every day. Unless you are very experienced in front of the judge, it’s likely they will have a better feel for their judge than you will.

When the time comes to argue the motion, try to condense your argument into three main points. If you are arguing something complicated, it is unlikely that this is practicable. But it’s worth the attempt. Your time in front of the judge is exceptionally limited and goes much faster than it seems too. Prepare like you have only five minutes to make your argument, and you won’t end up disappointed.

Remember that there is no “right” way to write a motion. Hopefully these tips will guide you along the way, and always beg. Borrow and steal from other colleagues- imitation is the sincerest form of flattery.

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1 For a more in-depth discussion of motion filing practices in different counties, see Litigating In Different Counties: helping the Probate Courts to Help Us, BOSTON BAR ASSOCIATION FIDUCIARY LITIGATION COMMITTEE (2010).

Grace Roessler is an associate in Mirick O’Connell’s Family Law and Divorce Group. She concentrates her practice in the areas of divorce and family litigation. She assists clients in all actions involving divorce, custody, child support, modification, removal actions, and paternity. Grace regularly appears before Probate and Family Court judges to argue motions and litigate on behalf of her clients. Prior to joining Mirick O’Connell, Grace was an associate at the firm of Brick, Sugarman, Jones & McBrien, LLP.

Brian J. McLaughlin is a strong, compassionate, and adaptive lawyer. Based in Boston, he practices in the areas of family law, special education law, disability law, real estate law, and both unemployment and veterans benefits. He uses his experience with mediation and collaborative law to give the best legal advice to his clients. Brian zealously represents his clients, researching all possible legal issues to their fullest extent.

Brian is currently undergoing CASA volunteer training, as he will become appointed by the Court to write briefs to help judges determine the best interest of the child. Brian is a part of the Child Requiring Assistance program, where he is appointed as a child’s lawyer when they are going through difficult legal issues such as parent divorces or trouble with their school. Brian holds children’s protections and rights in the utmost regard.

Brian currently collaborates with the Volunteer Lawyer Project, helping those who are in need of counsel obtain their unemployment benefits. Brian has extensive knowledge of the policies and procedures of the Department of Unemployment Assistance. Brian also serves on the board of Shelter Legal Services whose mission is “to promote self-sufficiency, stability, and financial security through comprehensive and accessible legal services.” In addition to his work with low-income clients, Brian also serves on the Assistive Technology Loan Committee, which seeks to provide low interest loans to folks seeking to obtain assistive technology. He is also a co-chair of the Legal Policy Committee for the Special Needs Advocacy Network (SPAN).

Brian also has given countless presentations concerning disabilities and accessibility issues and was cited in the Boston Globe as part of a wheelchair accessible task force sting in downtown Boston. Click here to read the article.

His experience includes working with both the state and federal government. As an Intelligence Analyst for the Federal Bureau of Investigation, Brian received a top-secret security clearance. At the state level, Brian served as an outreach coordinator for the Massachusetts Office on Disability. Brian has served in the private sector for the small litigation firm, Healy & Healy, assisting in civil tort litigation matters, both plaintiff and defendant.

Brian has been recognized multiple times by both peers and mentors in the Boston area. In 2015 he won the Pro Bono Lawyer of the Year award for his extensive and impressive dedication to pro bono cases. He then received a nomination and later was awarded as one of the National Law Journal’s Rising Stars in Boston, Massachusetts.

Brian graduated from Boston College cum laude where he served as a campus leader, participating on the committee to hire a new disability coordinator as well as being part of the committee to improve the Master Plan, Boston College’s plan to improve accessibility for students with disabilities. Upon graduating from college, Brian attended Boston College Law School where he participated in Mock Trial and volunteered as part of shelter legal services.