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Opening Act: Do Your First Words Fall Flat?

Imagine a judge digging into the next motion on her stack—your motion. Could she have written your opening just by glancing at the caption? For most motions and briefs, the answer is yes.

How Many Lawyers...

How many lawyers, when opening a motion for summary judgment, simply proclaim that the other side has failed to establish a genuine dispute over a material fact?

How many lawyers, when opening an opposition to a disqualification motion, simply wail that the other side is trying to generate a conflict where none exists?

How many lawyers, when opening an appellee’s brief, simply recite the mantra that the trial judge made no reversible errors of law?

Tell Judges Something New

Boilerplate gets you only so far. Rather than reciting predictable formulas, tell judges something they don’t know—something that applies only to your case.

Compare these two openings from last-minute motions in the Schiavo dispute. Which of the two essentially repeats the caption and procedural posture—and which conveys the legal issues at stake?

From the Schindlers’ emergency motion for stay:

Applicants, Robert and Mary Schindler, individually and as next friends of their daughter, Theresa Marie Schiavo, hereby apply for an order staying further withdrawal of nutrition and hydration from Theresa Marie Schiavo that was initiated by Defendant [...] on Friday, March 18, 2005, at 1:45 PM (EST) pursuant to the order of the Probate Division of the Circuit Court of Pinellas County, Florida, pending the filing and final disposition of Petitioner’s Petition to this Court for a Writ of Certiorari to the Florida Court of Appeal, Second District. In support of Motion for Stay, Applicants state as follows:

From Michael Schiavo’s opposition to the application for injunction:

Petitioners offer no valid justification for the extraordinary and invasive relief they seek. Unconstitutional as it is, the statute giving rise to this case [...] does not come close to mandating the intrusive injunctive action demanded by Petitioners. As the court of appeals recognized, the statute merely provides a federal forum to review Petitioners’ thin federal claims, which have been repeatedly rejected by the courts. The district court carefully reviewed these claims and found them insubstantial, and the Eleventh Circuit properly found no abuse of discretion. Those decisions were undoubtedly correct and certainly do not rise to the level of egregious, clear error necessary for emergency injunctive relief in this Court.

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