Bad Faith

Bad Faith

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

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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