All right. Welcome back. I hope to those of you who are here for part one already and are joining me for part two. My name is Rick Alimonti. I'll give you the very brief background if you're just attending part two. I am a lawyer, a litigator. I practice in New York. I have about 30 years of litigation behind me. My law practice emphasizes aviation work. I have a background in aviation as well. And in addition to that, I have been a mediator for, oh, gosh, about a dozen years, going back to when I joined the panel for the Southern District. And I continue to mediate cases for the federal court as well as privately. So that and if I get a chance towards the end. But knowing how things go, I don't know how much extra time I'll have. I'll talk a little bit about some of the differences in advocating mediation and writing and mediation. And no, it's not part of the formal program. I think it's a really important thing to understand. And I have to say, law students are getting increasingly better and better trained and understanding the difference between mediating and litigating, and that's really great to see. So we were just getting to before we. Before we broke from part one composing an argument. Let me see if there's anything worth doing before that. Yeah, I'm going to go back just slightly to this previous slide, which is basically when you're composing an argument, whether it be an appellate brief or a motion brief, you are going to be telling a story, and that story is going to follow the patterns of storytelling. One of my hobbies is I am an author and a screenwriter. I've written a few published novels, and I have an unpublished screenplay based upon one of those novels. So I've had to embrace storytelling in my life, and I try to apply some of the lessons learned in storytelling to how we argue and think. On the very basic level, here's a shocker every story has a beginning, a middle, and an end. And on the very basic level, you're litigation. You're using a summary judgment motion for an example, has a beginning, a middle and an end. The beginning is what happened. The middle is seeking the relief and the end is getting the relief you seek, ideally. So on a on a more specific sense. Every story has its exposition where we learn about the characters, that builds tension because clearly we're here because there is some disagreement for which we need the court to intervene. And that leads to the climax, which is seeking the relief you want. And the resolution is getting that relief, hopefully, with the result being justice. And your idea is to compose a construct, a narrative that cries out for justice. And not just any justice, but the justice you seek, which you have portrayed as being the just result. So, as I just said, the critical phases of an argument. Oh, boy. Okay, that's very interesting that the slides bounce like that. Okay. And now we've gone too far. Hold on. All right. So as I said, another simple way of breaking it down past, present and future. The future is what you are asking the court to declare for you or to give you some broad strokes on the opening brief. First of all, know the rules. Again, you always want to try to have the last word. There are some courts, New York being one of them, in which the schedule you set for your motion determines whether or not you preserve your right of reply. So if you do not leave sufficient time between when you move and when the motion is returnable, you may inadvertently waive your reply. That is something you should never surrender. The opportunity to get the last word cannot be overrated. I think that anybody who knows their Shakespeare would agree based upon Marc Anthony's results. So do not give up that opportunity. Um, so some other things you need to know is the basic components of the motion brief versus affidavits and other proofs of facts. Your brief is where your argument goes. Your affidavits and the supporting exhibits are the facts that support those affidavits, and they should fit together as seamlessly as possible and as much as possible without interruption. You want to avoid. And I'll talk about this a little more later, but you want to avoid ever forcing a judge or his clerk to multitask and have to look here for one thing and there for another. You know, simply saying in your brief, I refer you to the affidavit of so and so. Containing the pertinent facts is a horrible way to address the facts. It's almost telling the court we don't really care that much about the facts. If you want to read them, go elsewhere and it makes or interrupted the reading. Now, unfortunately. Some courts have become so particular about page limits per document that you may have no choice. But to relegate some facts to another document and maybe just summarize them as best you can in your brief. That's unfortunate because it breaks things up, but you may have to deal with that if you are trying to satisfy the page limits for a brief without going over. And your facts require more extensive exposition, but can also always usually get an agreed upon an authorization to exceed the page limit by a limited amount. But unless you're coming head to head with page limits, always try to look at your brief as what I refer to as the one stop shopping and assume the court really will not read anything beyond the brief unless it is forced to. A critical question on your opening brief is that of anticipation. I wish I could give you a hard and fast rule on what should go into your into your opening and what you should anticipate on reply. What I should say is this you should know your gaping weaknesses if you have any, or your most compelling adverse authority. If you are just going to leave that unaddressed in your opening brief, you are begging your adversary to drive through that gaping hole that you left behind. So I would say, understand that there are certain things you want to address in your opening, rather than wait for them to be brought up by your opposition, only then to be addressed by you defensively on reply. This is the thank you to my friend Tim Marland in London, who's a barrister with whom I have worked on several occasions on the opening brief. Give the court a good structure, use good point headings so the court can navigate quickly back and forth throughout the brief by focusing on key items. Use assertions, not subject headings. Example do not do write the facts. Do not support estoppel. In this case, don't write the estoppel factors. Try to take an affirmative, positive, assertive approach to every aspect of your brief. It's so common to see a section in almost every summary judgment brief that says nothing more than the standard for summary judgment, and then goes through the usual cases in federal court. Anderson. Liberty lobby. Liberty lobby. Et cetera. Do better. Say we satisfy the standard for summary judgment and do the same thing. Say what the standard is and then say as, as as will be. As will be explained further below, we satisfy the standard because there is no question of material fact as to A, B, and C, therefore entitling the move into. Therefore entitling Mr. Jones. Let's not call him the movant to summary judgment and then go into it also. Don't think you have to put that up front. Everybody seems to think that the summary judgment standard has to go up front because it sets the tone. The court knows the standard for summary judgment. You can make that the last point of your brief, because it's probably the driest point of your brief, and you can simply refer to it at some point, you know, as as will be referred to in point three, the standard for summary judgment is satisfied herein. Here's what happened. And then point three address it. But you're getting the good stuff, the heart of your argument up front. So there's no reason, just because it seems like you have to first say the standard, there's no reason to bore your reader with a bunch of cases that everybody knows up front. Consider putting the standard beneath it now on appeal. Very often the courts want the standard for the appeal up front, but on a motion for summary judgment, they know the standard and you're repeating stuff they already know. And if you put it at the last point of your brief, after you've given all the compelling reasons to why you're entitled for summary judgment, no one is going to bark at the order in which you present it. Now, this is an example taken from an actual summary judgment motion. The opening section in the facts that I actually had to shorten. To fit on to the slide. But this is taken essentially as it was with with the removal of the names. Okay. In its complaint, exhibit one to complaint plaintiff ABC mutual insurance company ABC alleges as a first cause of action that ABC has determined in good faith that plaintiff Jones claims against XYZ Corp. is set forth in personal injury action, are excluded from coverage by ABC pursuant to section 12 C of the applicable insurance policy, and as a third cause of action, that XYZ has waived any rights it might have to seek coverage from ABC said rights being expressly denied XYZ as a stopped from claiming such coverage. If you don't want to slit your throat reading this as an opening statement in a brief that is supposed to be compelling. You're stronger than me. This is horrible. And this is taken from an actual case in which somebody actually thought this was the first thing they should do to grab the court's attention. There's not a single fact. It's multiple record references. It's references within references and uses. You know, those nice legalism like said rights being expressly denied. Spare me. Right. This is an insurance coverage case. It does not have to be dry as dirt. This could be written much more compellingly by simply saying what happened and when. You want to grab the court early. A summary of arguments. Something like that. This is not the way to open a brief. So a critical question in our briefing. What cards do we hold? What cards do we play? Number one. Open with your best argument. And then address your stronger arguments in order of strength beneath that. That may mean you have to make some strategic decisions. Sometimes we have a lot of arguments. Do we need to use every one of them? At some point, you have to be able to say to yourself, particularly with page limits. Et cetera. If I'm not going to win on one, 2 or 3, what do I stand to gain by adding four? How likely is it that the court is going to rule in your favor based upon the argument you consider to be the weakest? And even more importantly, does including a weak argument degrade the arguments that precede it? These are all really important questions to ask. Again, we will stress the importance of credibility. And if you're raising raising a weak argument simply because you feel you need to be comprehensive, you may be undermining your own credibility. And you can be sure that if your adversary has watched this lecture, they're going to open attacking your weakest argument, because that will be their strongest argument, and you set the stage for that. Cardinal rule number two alluded to this previously, if you are sure. That an argument will come up in opposition. Address it squarely in your opening brief. Much like cross examination, where you know something can come up on a weakness on your own witness, you bring it out in direct examination rather than have your adversary be given the opportunity to present it like the smoking gun. Typical example of that is when you have an expert witness explaining on direct that the witness is paid how much he's paid, have the witness confirm that it doesn't affect his objectivity. And then when the adversary comes up, you know, bringing that out is relatively ineffective. But when you leave yourself open to to the moving party, John Doe has not even addressed the most critical case or not even has spared the court this critical fact. Then you are leaving yourself in a very weak position and you are switching from proactive to reactive. The idea of your opening brief is to be on the offensive and stay on the offensive and put the other side on the defensive, where all they can do in their opposition is react to you. Now, you can never control 100% what someone else does and how someone else reacts, but you can make as bulletproof an opening as you can. And sometimes part of being bulletproof is taking a few bullets up front. Rather than leave them for your adversary to aim squarely at your heart. All right. Talking about briefs and affidavits. As I mentioned earlier, a very common a very common practice is to relegate all the facts to an affidavit. Avoid that. If at all possible. It. You may think you're saving space in your brief, but it is really an organizational disaster. And if you can, without impeding on any page limits, put all the critical facts in your brief with proper record references. You can do so, and you should do so. You do not want to judge or a clerk to have a brief in one hand and an affidavit in the other, and have to go back and forth. There are some ways to do that. Some things that I do in order to organize my brief to save spaces is I put very early in my brief, I kind of create a section called glossary or a or Guide of Guide to Abbreviations, where I have long parties, long party names, and I tell the court right up front how I'm going to be referring to them and how I'm going to be referring to affidavits so that I don't use any of my page allocation because. Table of contents and authorities. Et cetera. Don't count towards your page limit. And all these long names like affidavit of so-and-so sworn to on such and such a date can now be the so and so f. And in the course of getting all that up front and before the pages are even counted, I may save myself a page by not having to do all of that up front and then hereinafter referred to as, you know, Jones affidavit. So there are some little things you can do, an appendix of abbreviations. Put that up front. So when I'm writing a story, I get to pick a theme. Unfortunately, when you are writing a brief, you have to extract your theme. From the facts. So the typical approach to writing a story is pick a theme, decide on a vehicle to tell the story and populate that story with story with characters, plot, subplot, and tension. As the brief writer, our job is to put our facts into a similar narrative. Footnotes. Common question should I use them? Some courts may preclude them. Most allow them. My recommendation is try to avoid footnotes. But for one thing you should not do is bury your weaknesses in a footnote. It is a tell tale sign that a particular point concerns you. So address your weaknesses up front. What I like to use the occasional footnote, is to just sort of redouble a point. You know, if you have a point that you've made and you and there's strong, strong grounds in your brief and you want to say, oh, and by the way, this is another reason why we win. You can put that in a footnote or even anticipate anticipate an opposition in the footnote. You know, we expect plaintiff will argue X. In anticipation of that. We note that, and that's a good use of a footnote. But keep them limited. Don't put real substance, critical substance of your brief in your footnote because it breaks the flow. So how do you structure your argument again? There are there is a lot of flexibility here. And I've never seen a brief stricken for having an unauthorized subheading or an unauthorized heading. So there are a lot of ways to get your points up front and to make critical points early in an effective way, even without annotation. So some of the things that you're disposal are preliminary statement. Summary of argument. An essential facts. You may have a very long factual exposition, but if you want to get the essential facts up front and the page limits allow, you can say as detailed and annotated further below, the essential facts of this case are. And you put in a few sentences to tell the court critically what happened. Make sure they are 100% accurate and that they will be supported by proper record references further down. But it gets the facts before the court right up front, without the interruption of references to affidavits and documents, etcetera. And then you can repeat it later with all the details. So I often put essential facts rather than trying to burden the court with every fact which will come later as needed. And of course, the conclusion the old saying is tell someone what you're going to say, say it and tell them you said it still applies. So. You are the lucky recipient. Of emotion. Let's suppose for our purposes it's a motion for summary judgment. What do you do? You probably had an idea this was coming. Maybe it's a surprise. And now you're going to have, in all likelihood, only one opportunity. To respond in your opposition. And if the moving party has done this properly, they will get. A right of reply so they will get the last word. However. In most instances, the reply is limited to the opposition. They don't get to raise new arguments in reply, almost certainly. And so your opposition is your opportunity to seize and change the narrative. Very often in opposing a brief, we feel that we need to seriatim in order to address and distinguish. The arguments made in the moving papers that is, playing into the moving party's hand and playing into the moving party's narrative. You do not need to trace the opening point and have your point one and point two and point three match there as opposing it. You want to flip it? And if the moving party has left gaps in their in their moving papers, you want to get that up front. This is an opportunity to change the narrative, affect their credibility and candor. And put them on the defensive in their reply. Because as the moving party, my my hope in the reply is that it will just be an opportunity to address whatever weak arguments you had left after my opening. However, your goal in opposition and our goal when we are in the opposition party and the responding party, is to flip the narrative so that the reply, rather than being an opportunity to reinforce all the arguments made previously and and distinguish those in opposition, is to put someone really on the defensive in their reply by addressing the weaknesses up front. So don't get seduced into adopting the same order and the same style that you dealt with in the opposition. Don't trace the opening brief. Very often. We cannot spot. The forest for the trees. So I put here. Don't get lost in repetitive distinguishing of cases cited in opposition. It is tedious and unpersuasive to go through every case. And say why it's distinguishable and sometimes it can be very ineffective. You're not going to get many points by distinguishing a case that happened on a Tuesday, when yours happened on a Wednesday, and I know I exaggerate here, but you really want to look for trends in the opposing authority. And in one instance I had a very simple and pretty, I think, illustrative example and almost an excessive example is I had an associate draft a brief for me many, many years ago opposing a motion for summary judgment. And that associate did what many associates feel compelled to do, which is distinguish every case one by one by one. But I went back and I reviewed the cases. And not one case cited by the moving party actually granted the relief they were seeking. They were what I refer to in part one of this program as as type five, where the best authority they had was trying to distinguish cases that ruled against them. So do you need to, in that instance, address every single case and say why it's distinguishable, or do you simply say. Moving. Movant has fair to cite a single case in which a single court granted the relief requested here. Been pretty effective. And then you can maybe string site those cases or use 1 or 2 as an example. But you move on and it's very effective. It cuts to the chase. Don't get lured into feeling. You have to distinguish every case when you can bundle them effectively. Look for logical fallacies. I could, I could do a whole seminar on this. And but it's important to understand that logic may be faulty in a brief, and you can even use some latinisms to make them more interesting. For example, post hoc ergo propter hoc, which means just because something happened earlier does not mean that it's it created it. It would be like saying, you know, I made my bed this morning and then I won a motion, and if I hadn't made my bed, I would not have won. Another one is reductio ad absurdum, where you take something and extend it to absurdity. And there's a really good book on it, I think I cite it. There it is. Jay Hendricks, thank you for arguing, which is really, really fun book with all of these logical fallacies. One of the ones to really look out for, for example, is the tautology where someone basically uses a fact to prove the same fact, stated somewhat differently. So what are some of the things we get from basic argument, logos, ethos, and pathos? And we can use all of those in our favor. Build your argument with them. Logos is obviously being logical. Ethos is to be ethical, which means you retain your credibility. And pathos is part of what we talk about writing with passion, telling a comparative narrative. As I mentioned in part one, the facts of your briefs are perhaps the most important, and we tend to gloss over them as if something to get out of the way so that we can address what we consider to be the heart of our argument, which is the legal writing. And if you are hearing that I have a train station outside my office. All right. So continuing on a bit. You want to adopt, you want to really use compelling facts and tell your story accurately, but treat the facts as if they are the most important part of your brief. Because by the time the judge finishes reading those facts, the relief you are seeking should be crying out for itself. I love this this description of Abraham Lincoln as a lawyer from one of his colleagues. He would cut all the dead wood out of the case. The client would sometimes become alarmed, thinking that Lincoln had given away so much of the case that he would not have anything left. In making such concessions, he would establish himself in a position, in fairness and honesty, that the lawyer on the other side would scarcely have the heart. Sorry, there's a typo there to oppose what he contended for. So what is this? This is really understanding the ethos, understanding to look at your case and understand where the value is, where the valuable authority is, and not waste the court's time with distractions. With what? Which what this colleague of Mr. Lincoln called the dead wood. So look at your case, argue the essentials. As I mentioned earlier, there are going to be multiple arguments you can make when you're the moving party, for example, and you may have 4 or 5, six moving arguments, kind of like when you draft a complaint and you have multiple causes of action, do you really need every one of them? In a product liability case, how much value is added by pleading negligence when you have strict liability as your stronger cause? Well same here. Look at your case. It may be that the final argument, the weakest argument would best be served by what I say falling off the bottom of the brief, leaving it alone because the other arguments are so much stronger that this final argument only weakens your argument and gives the adversary their first point to address in their opposition. All right. Talking a little bit. About Mr. Lincoln. This is one of my favorite things to discuss with everyone a little bit, but those of you who have studied history in the Civil War may be very familiar with Abraham Lincoln's Gettysburg Address and what the Gettysburg Address is, in my opinion, a synopsis of the construction of a perfect argument in many and so, so few words. I have to look up the word. I may have written it down. Um. But let's start at the beginning, because what it does, I have a feeling these some of these slides may have gone a little bit further, but just bear with me while I find my pearls here, okay? All right. So let's look at the Gettysburg Address and see where we are. We begin with fourscore and seven years ago, our fathers brought forth onto this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. As we talked about our story construction. Here we are beginning in the past. This is where things began. And the next paragraph will bring us into the present. But bear in mind. The critical phrase here that will be dominating in the end. All men. Are created equal. Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. Now we have moved the narrative to the present. And after one of the bloodiest phases of the Civil War meeting on the battlefield at Gettysburg to dedicate the cemetery is the context here. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting place for those here who gave their lives that the nation might live. It is altogether fitting and fitting and proper that we should do this. So again, here we are in the present tense. And Lincoln is addressing a period of profound sadness. But he's also doing it with such a sense. Of humility. Which continues throughout and it gives him such incredible. Credibility. And is altogether fitting and proper that we should do this. So that the nation might live. Now the theme here and again, putting the historical context here is when the Civil War began. Abraham Lincoln did not begin the war. Contrary to what many of us may have been taught. Committed to ending slavery. He actually was elected on a platform in which he said that he would do whatever he can to save the Union, including abolishing slavery, retaining slavery, or leaving it okay, in some places, while abolishing in others certainly not what would be considered a politically correct position and in these in this era. But he was not, as many like to consider him, the Great Emancipator. Looking to end slavery. From the beginning of the war, he was a politician, and in trying to keep the Union together, try to actually send assurances to the South that he was not going to be crusading to end slavery. So this first, these first two paragraphs of his Gettysburg Address leave us. At that point in which Mr. Lincoln is discussing preserving the Union as the basis for the war, rather than ending slavery. But he's begun. He's begun to give us some indicators of what's to come. And now we begin to transition. And again, note the humility here, the credibility. But in a larger sense, we cannot dedicate we cannot consecrate, we cannot hallow this ground. Again, this is the Gettysburg Battlefield. The brave men, living and dead, who struggled here have consecrated it far above our poor power to add or detract. And again, the humility, the self-effacing ness of it. How can reading these words you are drawn in? And again, the world will little note nor long remember what we say here. But it will. But it can never forget what they did here. And also note that he's not distinguishing north or south here. He's simply referring, in a broad sense to all those who struggled, living and dead. And now? Well, how do we honor these dead? This is what moves on to the next, and I think the most. Some of the most powerful writing ever. It is for us, the living rather to be dedicated here to that unfinished work which they fought here, which those who fought here have so far nobly advanced. It is rather for us to be here, dedicated to the great task remaining before us, that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion. That we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people and for the people. Shall not perish from the earth. And as I as I write at the top, this is truly a masterstroke. Of assembling an argument with the past, the present, and the future. We begin with the founding of the nation. He brings us to the present in this bloodbath of the Civil War and the cemetery that will have thousands of graves to the future, and changes the theme. To emancipation, although you have to look for it. Everyone here will know what he means. New birth of freedom. New birth of freedom means freedom for everyone. New birth of freedom means freedom for those enslaved, as much as for freedom of those who fought for slavery and those who fought against it. So this new birth of freedom, Abraham Lincoln, does this amazing thing with this Gettysburg Address, you know, and I encourage you to read it and read it again. But he takes this perfect narrative with such perfectly blended words and so few words. Which I think I would encourage you all to recall. This nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth. Until I studied this address a little bit, I thought that that phrase government of the people, by the people, and for the people actually came from a previous document, either the Declaration of Independence or the Constitution of the United States. And in fact, previous presidents have referred to those words. I think it was Bill Clinton who said, the Constitution says that, and it does not. The first time these words were put together in this order was actually in Abraham Lincoln's Gettysburg Address. But it's become so embedded in our national. History and our and our and our national soul that these words have become. Uh, a part of our government. Almost. So, looking at the Gettysburg Address, we see the past, the present and the future. We see this marvelous transition. And what what is throughout it is logical. It is imbued with humility that it is rather for us here to be dedicated to the great remaining task before us, that these who have given the ultimate sacrifice, the last full measure of devotion. What a magnificent phrase that is. That we continue their unfinished business. And this was a this was actually an address that was not particularly well received when it first when it first came out and has now become considered one of the greatest and yet nonetheless one of the shortest speeches of all time. All right. A few thoughts on writing style and it's so easy. To write things in a confusing way. And a lot of that can relate to how careful we are with our use of pronouns when it's not clear, for example, whether they refer to the subject or the object, or some some other actor. And let's use this first sentence as an example. Miss Jones took the hot beverage from Miss Smith and she spilled it on her lap. In this particular sentence, we have no idea who spilled it. We have two female and the word she. So we don't know whether it was Miss Jones who took the hot beverage from Miss Smith who spilled it, or Miss Smith who spilled it. So we have to be very careful. A correction. Or I should say so. A better way of saying that. Miss Jones spilled the hot beverage on Miss Smith. After she took it from her or something along those lines. But you not you have to know who the verb refers to. So that's sort of some pronoun verb confusion. And this one we know Miss Jones spilled the coffee, but we don't know who ran away. Miss Jones spilled the hot coffee on Miss Smith before she ran away. Correction. Miss Jones spilled the hot coffee on Myths on Miss Smith and ran away. Now we know by using the and by using that conjunction that it is Miss Smith who did the running away. So be very careful and be very careful of what I like to call the the curse of familiarity. And this is why it's very important to have other people review our work, because as we work on cases, as we get really, really engaged and submerged in them, we begin to impute that knowledge on others, including the reader of our brief, who knows nothing about it, whether it's a concept of law, whether it's a particular fact, all of these things that we may take for granted, including defining terms, may be lost on our reader. So it's very important to have someone read our work who's coming at it from a fairly, you know, blind perspective who says, you never told me what this means. You never told me who this is. What is JFK? Oh, JFK is an airport. Well, why don't you say somewhere JFK airport, all these little things that can impact our effectiveness of our writing because we are assuming our own. We are imputing our own knowledge and familiarity with the law and the facts on the reader. So I recommend a buddy reader, you know, someone who will read your work, you'll read theirs. You know. You know you can't all bill for it if you're in a defense firm. But, you know, just do it as a favor and it will help you both in the long run. Um. A first time reader should not have to reread a sentence to parse your meaning. And this happens a lot. And I see it in court decisions all the time where there's this, you know, 100 word sentence that I have to go back and read and reread to try to understand what the person was trying to tell me. So I urge you to all really read your work carefully. Have someone else read it. Now personal attacks. Generally speaking, they are rare. They do happen. I urge you to avoid responding to a personal attack, even when it is fielded against you, because all you are doing is reducing yourself to the level of the other side. And it's hard when somebody says something that attacks your credibility or that attacks your ethics. It's very hard not to only defend that, but to want to say, not only am I not bad, but he or she is the real bad guy. Obviously you want to respond, but you want to respond professionally and objectively. If they're pointing out to certain facts. Address those facts. Clarify them. Sometimes we all make mistakes. I have made mistakes. I don't think I am done making mistakes. Yes, your adversary will make mistakes. I have been well served by a maxim called Hanlon's Razor. Hanlon's razor says. Do not attribute to malice that which is as easily explained by stupidity. And it seems to me that there are a lot of lawyers that are. Hair triggered to respond to an innocent mistake, as if it was a deliberate attack. I would urge you not to make that assumption. And it's very easy. To avoid. If somebody says something that is downright wrong, even if it's something that they know is wrong and should know better, is wrong. Do you really gain anything by using the word falsely or disingenuously? Or you know, a word lawyers love? Disingenuously? It's okay to say mistakenly. You're not detracting from your argument. Now, admittedly, if it's repetitive and if it's obvious, you may want to take a stronger tactic. But I urge you to seriously consider how you deal with it. If there's an explanation, if you have made a mistake and you're being accused of doing something deliberately, this happens to me. It has happened to me where I've made a mistake and I've corrected it. Sometimes, as lawyers in the course of a litigation, we cannot help the facts that we receive. Our client makes a mistake. Our client says we never had a record of this accident. You put it in your discovery response that there is no record of it. It comes out later that there is. And trying to give your adversary current information, you you immediately produce that report. And then, lo and behold, there's another unproduced report that comes out even later. And now you have represented one said there was no report. Secondly, that this was the only report and now you're wrong again. And what have you done? Nothing other than try to keep your responses current and to be ethical and honest, and share things as they evolve. Is it the best reflection on your client? No. Is it the best reflection on you? No. But when your client comes, when I'm sorry, when the adversary comes out guns blazing, accusing you of lying or accusing your client of withholding information, you've done the right thing. And you simply respond to that by saying we mistakenly, we were under the mistaken impression there was no report. This was found by. So and so and such and such and immediately produced. So the thing about mistakes is, correct them as soon as you can. Do not be so quick to make the worst possible assumption when someone else makes a mistake and don't escalate a personal attack on you by engaging in a personal attack in response. At the end of the day, I think, and I've spoken to many judges on this, once two parties get into an exchange of personal attacks, the court completely loses interest. The only way you have a chance in prevailing on such an exchange is by keeping the high ground. And by the way, the courts know what's going on. They keep they keep a sort of count on the case and who's treating each other fairly, who's jumping to conclusions, who's being perhaps a little malicious. So bear that in mind and always avoid trying, you know, avoid dropping to that level. And I encourage you, you know, when you're about to send that poison pen letter or that poison pen email. Write it, read it, edit it, perfect it, and then sleep on it. Don't hit send. Think about it. Look at it the next day from a less emotional perspective, because you always have to think. That anything written? In the course of a case is a potential exhibit before a judge and think in the big picture. How does that. Correspondents reflect on you, reflect on your firm, reflect on your client, and think almost every time when you take that time and reflect on it. You will be well served by having held on to it and reconsidering your approach and doing some polite correction, rather than an attack which will only escalate into a responsive attack. And I can assure you that on a practical level, clients do not want to pay. For this type of exchange. No, you said it. No, she said it. No, I said it. No, you said it. No. My clients wrong. No, your client's wrong. You hid this. It is a waste of time. And it is time that we as lawyers have no business on the defense side. Billing for when we are simply escalating a meaningless personal exchange when we have the opportunity to deescalate it. Similarly, and void indignation. You know, I always say indignation is the is the scoundrels last refuge. So avoid tones of indignation and shock. Avoid implied clairvoyance. If a certain course of conduct suggests bad faith, suggest an intent to hide information. Suggest an intent to evade a deposition or a discovery response. Give the court the facts, but don't. Take on the position of someone who can. Describe or identify somebody's motivation. None of us can do that. Let the court look at the pattern of conduct and make that decision as to motivation, etcetera. The most I think we should do as advocates is to say that a certain course of conduct is consistent with. An attempt to avoid a certain issue. Avoid good faith. Compliance with discovery. Et cetera. But don't say things like plaintiff is clearly herein in bad faith. Eluding and evading discovery with frivolous objections. Let the court make that decision. Make that. Make that motivation. Decision. I encourage you to use some simple things in your writing to explain away cases in broad strokes. We talked a little bit about that earlier, that if you have a whole bunch of cases that you can remove in one swath, in this case, I'm using a chart. And this chart involves a premises liability case. And we are trying to establish why our case is distinguishable from a case that the adversary relies on. So our case is case X, the case the adversary is relying on. It's James versus premises. I'm defending the case. So in our case we have all of these favorable facts. There was a storm in progress which is a defense to a premises liability case that's weather related in New York. The plaintiff was running. There were warning signs posted, presumably in this area where there could be slip. The plaintiff was wearing flip flops and there was a documented inspection of the area at some time. Plaintiff is relying on a case that is entirely different, in which there was actual notice of the condition that had been unacted on. It was a clear day. The plaintiff was wearing walking shoes and there were no records of any inspection. This brief chart and it could be for multiple cases. It could be, for example, instead of James versus premises plaintiff's authority from page eight or something. But this gives the court, in one quick section a clear illustration of why the case is cited by the other side, or a case cited by the other side really bear little or no factual resemblance to your case. I think I've have sort of addressed this previously. Being civil. Avoid poison pen letters. Think before sending. Sleep on it when you can. Always think about your final audience being the judge, you are never going to beat your adversary into submission. Then nobody is going to fall on their sword. After you point the finger back at them and say, no, you're right, I'm wrong. I'm sorry. All you are all likely and all likelihood is escalating. As I mentioned, once you descend into the gutter, your cause is likely lost. But I am not suggesting surrender. I am suggesting polite, ethical and zealous opposition. All right. That brings us to questions. So am looking at my chat to see if there are any questions. And then if not, I will spend a few minutes. I'm opening the chat now, so if anybody would like to address anything, put it right in the chat. If not, I will spend the remaining about 10 or 11 minutes talking, about seven eight minutes talking about mediation advocacy, which I think is a helpful thing to discuss, because yes, we're all going to still be writing dispositive motions. What differs in mediation and mediation, writing from a lot of what we have discussed here. The primary distinguishing factor in writing for mediations. And I come to you from someone who is a mediator, mediated hundreds of cases and said as an advocate, as in mediation. At hundreds of cases. Is that we are not there to win. And actually was surprised recently to look at a, um, a law firm's website saying that they won such and such for their client in mediation because you don't win in mediation, you compromise, you settle, and then you move on. So it's a compromise settlement. And ideally, I think a lot of people like to say both sides lose in mediation. Both sides are equally unhappy in mediation. My perspective has always been that both sides win in mediation. But what are you going to do differently in mediation and more specifically in the mediation submissions? Because I would discourage you. From participating in any mediation in which the mediator did not have the time and the interest to read up on it. Before we start, you want you want the mediation equivalent of a hot bench. So what are some of the differences in a mediation submission? And there are two different forms for a mediation submission. One is a shared submission that the other side will see. And the other is an ex-parte submission that only the mediator will see. In my mediations, I do both. And asked the parties to send me a submission that I'll share once I have them both, so that nobody gets a preview. And I also ask the party to send me an ex-parte settlement memorandum explaining to me how the negotiations have gone, what issues they have, and anything else they'd like me to know that they don't want to share at the time. Your mediation submission. Starting with the shared submission needs to have. An element of conciliation. Conciliation. And a bit more of an element of candor. Then you would have. In a brief. So when I say conciliation. It shows. Or it should show that you're coming into the mediation. With something of an open mind that these are. The facts. These. This is the law as you understand it. But you address, perhaps in a bit more of a candid way, some of the opposing authority, some of the best mediation submissions I have ever received, and I'm including mediation submissions that were shared, include a somewhat candid recitation of the weaknesses of the case. Not that they, as they said before, fall on their sword and surrender to the other side. But for example, a case with strong with very extensive damages. But weak liability. But the damages are. Astounding. Imagine a personal injury. Very graphic. Damages a lost limb, a severe burns. Et cetera. The very effective submission in that case would be up front and saying, you know, these we believe there are effective liability issues. We also understand the potential impact of damages of this magnitude on a jury. You're not selling the farm by making admissions like that in the course of a mediation submission. You're also in the appropriate case in nearly every case is appropriate for this. But you're not in your submissions in mediation going to be as aggressive. And for an example would be. The distinction between. Accusing a plaintiff of misrepresenting an accident or exaggerating her injuries, and putting right in your brief, Mr. Jones. And misrepresented his injuries. He was found walking or playing tennis or Mr. Jones, you know, did not report immediately to the hospital but went just there are a lot of things you could put. In a motion brief directed more directly to Mr. Jones. But you can kind of backstep a little bit from that in a mediation submission and kind of let the jury be the bad guy, say, based upon these facts, a jury may find Mr. Jones to have been malingering. Based upon these facts. You know, a jury may find Mr. Jones did not actually fall on the time at the time and place, he alleges. You take a little bit of a step back from putting somebody on the defensive in your submission, particularly if it's something the other side is going to see, because the goal of the mediation is not to win. It's not to eradicate someone. It's not to have a zero sum game. The goal of your mediation is to persuade. And you're not going to persuade somebody to change position. But what you can do is persuade somebody that you have some positions that they need to factor into their evaluation. So if you're writing a mediation submission, the shared submission should be a little a little bit more cautious on going out on the attack. It should always, and I underline always include some sentiments of being here with an open mind, understanding their weaknesses of the case, understanding that a jury might do if the case has already survived, a summary judgment motion and you're the defendant, include that you know, admit that you know, this case is now going to go before a jury. And these are some of the concerns we have as to what might appeal to a jury. Despite our strong defenses. None of these things are going to weaken your argument. None of these things are going to change the settlement value of the case. And a savvy lawyer understands that the tone of mediation is different from the tone of litigation. So in terms of legal writing, conciliatory, more objective, calculated to persuade, convince, but also with some more, a lot more deference than you might typically put into a brief. And with that, we are coming up on our time. I hope this has been helpful to you. I regret that I didn't have the opportunity to stand and walk around in front of you, and that you just got to hear my disembodied voice and a bunch of slides. But I hope just a couple of these pointers are helpful to you. And thank you for attending this presentation.