Example 2.4

Takeaway point 2.4: Procedural history dictates the outcome of many trial motions, so find compelling ways to address procedural facts that harm your client.

In trial court motions, the procedural history often lies at the heart of a dispute — especially when a motion seeks a procedural remedy, such as to compel production of documents or force a witness to testify.

An independent prosecutor was trying to force President Bill Clinton to testify in front of a grand jury about his alleged sexual relationship with his former intern, Monica Lewinsky. The president had denied throughout early 1998 that he and Lewinsky had been sexually intimate; his litigation goal appeared to be to avoid testifying as long as possible (and at least until after the November 1998 midterm elections). Below, we see Clinton’s attempt to quash a subpoena ordering him to testify: the motion revolved primarily around his lawyers’ skirmishes with the independent prosecutor, a form of procedural history.

Source: President Clinton’s motion from In re Motion To Continue, Misc. No. 98-267 (D.D.C. July 28, 1998).

This is a great first sentence. It states the stakes, captures readers’ attention, and frames the other side’s acts as outlandish and unprecedented.

This sentence is designed to make Clinton seem reasonable. The phrase “indicated a willingness” is much less direct than “agreed” and reflects the successful hunt for a weak verb that lawyers conduct when they want to avoid committing to a position.

Clinton seeks a clear and modest remedy — a short extension — reflecting the general rule that motions need to specify what relief they seek.

WARNING! Why begin with such a bad fact, namely that the other side tried repeatedly to get the president to appear before a grand jury? On the one hand, President Clinton’s lawyers know that this detail is the Achilles heel of their argument, so they raise it immediately and then try to neutralize it by showing the lengthy delay between the penultimate and final request. Even so, stating up front that the president evaded six requests to testify is unfavorable enough that this detail probably should have been de-emphasized. Indeed, the trial judge harped on this fact during a hearing on this motion, leading the president to testify lest she order him to honor the subpoena.

This vague sentence aspires not to convince or win the case, but merely to make readers think that Clinton had some valid basis for refusing the multiple requests to appear before the grand jury. A strong basis to stay the subpoena would have helped.

This effective beginning to the paragraph suggests that there’s no urgency to forcing the president to testify.

Notice how the posture of the dispute becomes the relevant factual background for the motion. And as a result, the same principles that govern facts apply here. For instance, you want your client to sound reasonable and you want your adversary to seem aggressive and insincere.

Lawyers can characterize facts favorably as in the motion’s comment (a “good faith offer”). Don’t overdo this approach, however: when every fact is accompanied by commentary — a trait that appellate lawyer Peter Keisler calls “sportscasting” — judges may roll their eyes.

This sentence tees up the president’s argument — that the August 7 deadline is, as the motion says elsewhere, “particularly arbitrary here because there are no impending deadlines, no statutes of limitations are about to run, and no trials are imminent.”