I remember when I started at my first firm out of law school, I thought that every motion had to follow some special format. Certainly different types of motions have their own requirements, and just today I saw an attorney lose a motion simply because he failed to observe a rule, but as a newbie I was terrified to even move the caption up a line, thinking that might violate some rule that required the caption to start at line 7. I obsessed over when it was proper to use a demurrer versus a motion to strike. I was always in search of prior motions to use as examples of the motion I was creating (not realizing that big firms don’t want you to do anything to speed up the process).
But as the old saying goes, you need know the rules so you can decide when to break them. As I gained more experience and learned the procedural rules, I soon realized there was tremendous flexibility in what you could put in the motion and how it could be used. I even learned that a motion can sometimes be used to achieve a seemingly unrelated goal.
The unwinnable motion to vacate.
Here is a recent example of this concept.
A client came to me, wanting me to take over for his counsel, defending him in a civil action. He felt she was just not being aggressive enough. Strangely, even at the request of the client, she refused to turn over the file so I could take a look. After a day of downloading all the case documents from the court’s website, I found out why she was trying to hide the ball. She had utterly failed to respond to discovery, and all the motions to compel that followed, and the court had issued a terminating sanction, as well as finding all the requests for admissions to be admitted.
It was a real mess.
I told the client that I would have to bring a motion to vacate the default, but that it would likely not be granted. His former counsel refused to sign an affidavit of fault, even though that would have almost assuredly undone the damage caused by the attorney. Even when it is clear that providing an affidavit of fault could save the attorney from a huge malpractice claim, some attorney just can’t be made to understand that admitting their fault is actually the safer choice.
The reason I was fairly confident the motion to vacate would not be successful is because, without an affidavit of fault, the attorney’s mistakes are imputed to the client. Too much time had passed while all the discovery motions were going on, and it was likely that the judge would conclude that while the attorney was at fault, the client should have been more diligent in keeping an eye on the attorney. Additionally, even if we prevailed, the client had limited funds and would be hard-pressed to pay an attorney to deal with all the discovery issues, including the admissions. If we could get him out of this mess, and at the same time avoid putting the case back on calendar, all the better.
So this is where I invented my own motion. As discussed in further detail here, attorneys often don’t understand the necessity of giving notice of the dollar amount of damages being sought, and fail to follow the proper procedural order when seeking entry of default. In reviewing the court documents, I saw that the complaint did not set forth the damages plaintiff was seeking, and plaintiff’s counsel had entered the default before fixing that issue. He caught his mistake, and later served a statement of damages, but the statement must be served BEFORE entry of default.
I told the client that while I would caption the motion as a motion to vacate, its goal was to educate the judge on why he could not enter any judgment against the client. Thus, the motion I was really bringing was a “You Can’t Do What You are Trying to Do” motion. (Lest someone claim I was bringing the motion for an improper purpose, clearly one goal was to get the default vacated, so the motion was entirely proper, but I had an alternative goal as well.)
So I prepared the motion with all the usual arguments about how the client should be granted relief on the grounds of mistake, inadvertence, surprise, and/or excusable neglect, and in the process also argued that it would be a pointless act NOT to grant the motion to vacate, because the Court could not enter a default judgment, given the fact that the default was entered before the Statement of Damages was served. Indeed, that was the bulk of my motion, with extensive supporting authority.
Surprisingly, the judge almost granted my motion. It was apparent during oral argument that he was conflicted, given the conduct of former counsel, but as I predicted he ultimately concluded that the client had just not acted diligently.
Almost immediately after the motion was denied, the plaintiff submitted his default judgment prove-up package, seeking millions of dollars. The client was devastated, but I just kept saying to him, “Wait for it . . . Wait for it . . .” I could be a little cocky, because I had an ace in the hole. We could almost certainly reverse any judgment on appeal on due process grounds. But beyond that, I was confident the judge had gotten the message.
As I had hoped, the judge responded to the default judgment package with a minute order stating that he could not enter the judgment because of the failure of the complaint to state damages, and because the default was entered before the Statement of Damages was served (citing to some of the cases I had included in my “motion to vacate”). The judge gave the plaintiff one more chance, setting an OSC a month out, to afford plaintiff the opportunity to find a way around the problems. Plaintiff offered some creative arguments, but they could not overcome the black and white requirements of due process.
Following the OSC, the court dismissed the action. I actually did not know how the court would deal with the conundrum, but dismissal makes perfect sense. After a default, the default prove-up package is in essence the trial by which damages are shown. Since Plaintiff could not prove any damages, the case was dismissed. (I suppose an argument could even be made that he should have entered judgment in favor of defendant, but I think the judge reasoned that since this was basically a procedural snafu, dismissal was more fitting – like dismissing a complaint following a motion to quash for lack of jurisdiction.)
The very late motion for summary judgment.
In another case, the client had been representing himself in a defamation action, but decided about 25 days before trial that he should bring in an attorney. I took a look at the complaint, and decided that the action could be disposed of under the Communications Decency Act. This is a provision of that Act you have probably never come across, having to do with the creation of spam filters.
But we were far past the time for any properly noticed motion before trial. The best I could do, while giving opposing counsel proper notice, was set a motion for judgment on the pleadings for the second day of trial. Opposing counsel was outraged, and at the Final Status Conference cried foul to the judge. But the judge concluded that if there was the possibility that the issue could be dispositive, it should be heard. Since the issue presented was one of law, he bifurcated the jury trial, with him first deciding if the Act barred the action.
After a one day bench trial on that issue, he found that the Act did bar the action, and entered judgment in my client’s favor. The judgment was upheld on appeal.
There were a few different ways I could have handled this, but I think my method was the most efficient. I could have waited and brought an in limine motion, but I would have had to fully prepare for trial, hoping that the in limine motion would be granted. Alternatively, I could have filed motions to either continue the trial or have the motion heard on shortened notice, but that would have simply added more time to the client’s bill. My goal was simply to get it in front of the judge as quickly as possible. By filing the motion, I was then able to say at the Final Status Conference:
“You know, your Honor, I have a pending motion that could dispose of this entire action. Because I came in so late, I could only set it for the second day of trial, but I think it would be far more efficient to consider that motion before empaneling a jury or waiting until motions in limine.”
A motion by any other name . . .
When using this technique, keep at least one foot this side of the foul line. You don’t want to get sanctioned for an obvious attempt to use a motion for an improper purpose. But with that caveat, if you need to get something in front of the judge, don’t let the lack of a perfectly fitting motion defeat you. Instead, figure out the motion you CAN bring, and use it as the vehicle to educate the judge, or at least to put the judge on notice of the issue.