Example 14.5

Takeaway point 14.5: Nondispositive motions urgently need to frontload critical facts so that trial judges can assess the relevant issues quickly.

Nondispositive motions should help judges see quickly what the motion is about and why relief is appropriate.

In the next example, Milwaukee County brought a lawsuit for malpractice against Mercer, a financial consultant, over its role in advising the county about its pension plan for municipal workers. The complaint alleged that Mercer failed to warn the county of potential hidden costs — called the “backDROP” — which could cost the city $900 million more than it budgeted. The county alleged that Mercer’s work thereby violated the Actuarial Standards of Practice (ASOPs). Mercer submitted expert testimony from Lauren Bloom, who claimed that Mercer fulfilled its legal obligations. Here, Milwaukee County moves to exclude Bloom’s expert report.

Source: Plaintiffs’ Brief in Support of Their Motion to Exclude Mercer’s Expert Lauren Bloom in Milwaukee County v. Mercer Human Resource Consulting, Inc., No. 2:06-cv-00372-CNC (E.D. Wis. Oct. 13, 2008) (some citations omitted).

Notice how the county’s lawyers use Bloom’s own concessions (from her deposition) to make their point. The judge doesn’t want to get mired in factual disputes about the adequacy of an expert’s qualifications. Using the expert’s own description of her qualifications helps a judge to determine these issues. While block quotes are generally unadvisable, they are useful to show exactly what a witness said, especially when the key parts are emphasized.

The motion steers the court to the exact page and line of Bloom’s statement. Be aware that you must attach the relevant deposition testimony as an exhibit to a declaration that accompanies the motion.

This clever move lets the lawyers avoid cluttering the remainder of their citations with “emphasis added.”

Here, the lawyers focus the court’s attention on a critical legal issue in the case and show how Bloom’s testimony cannot assist the trier of fact in understanding that issue. This phrase reminds the judge what the case is about. The bullet points frontload the key information that the judge needs to resolve this motion.

The county’s lawyers have presented a compelling argument that Bloom offers no value to this part of the case. The motion contained more than twenty additional pages of similar statements to undermine Bloom’s comments about the backDROP and other parts of the case: a bit long for a nondispositive motion, but devastating.