MOTION PRACTICE IN BAD FAITH CASES | LORMAN seminar | APRIL 19, 2010

Whether one is responding to a motion, or filing a motion of one’s own, certain basic principles apply.  The first principle is to always keep in mind one’s audience.  Consider whether one’s brief will be viewed by a seasoned trial judge familiar with the law at issue or whether it will be first screened by a law clerk.  Consider also the work load the individual deciding the case has – brevity and clarity are both essential and appreciated.  The second principle is to write to the appropriate reviewing standard.  Are the allegations of the pleadings taken as true, as in a motion to dismiss, or is substantial evidence required, as in a summary judgment motion?  Is a discretionary standard of review involved?  The third principle, which creates tension with the first principle, is to be complete.  Remember that on appellate review, the appellate court will consider only the evidence presented to the trial court.  A fourth, but very important principle is to follow all procedural and technical requirements.  Many federal courts and some state courts now have automatic response deadlines for certain kinds of motions, formatting requirements and page limits, among other things.  It is crucial to keep these procedural and technical requirements and deadlines in mind and to plan sufficient time to meet them.  Violation of such requirements can cause the entire brief to be stricken.    

Motion Practice in Bad Faith Cases from the Plaintiff's Perspective

 

 

MORRIS, HAYNES & HORNSBY PRESS RELEASE | June 30, 2009

In the midst of the furor over other happenings at the United States Supreme Court, a recent United States Supreme Court decision that will affect over 44% of the United States population by severely curtailing the ability of workers aged 40 and above to prove age discrimination at their employment has been largely ignored. In the case of Gross v. FBL Financial Services, Inc., 126 S. Ct. 2343 (June 18, 2009), the Court held, by a 5-4 vote, that in order to prove that a person was discriminated against under the ADEA (the Age Discrimination in Employment Act), that person must prove that his firing or demotion occurred only because of his age. Prior to this decision, following well-established United States Supreme Court precedent in its interpretation of Title VII discrimination actions based upon race, sex or religion, it was necessary only to show that a person’s age was one consideration among others for his firing or demotion. In other words, under the Gross decision, it is not enough to show that an employee’s age was one of several factors used to fire or demote him, as was true under existing precedent; an employee must show that but for his age, he would not have been fired or demoted.

US Supreme Court Decision on Age Discrimination Will Adversely Affect Aging Workers in Today's Economy