FREQUENTLY ASKED QUESTIONS ABOUT USING PROCEDURAL HISTORY
| Q. | How do I use exactly the right verb to describe what courts did? |
| A. | If you are in doubt about how to use verbs that describe particular judicial acts, consult an authority like Black’s Law Dictionary or look to see how courts have used that term in similar cases. |
| Q. | Do I need a procedural history section in trial court motions? |
| A. | The answer depends on the motion—and on what will help your client. For instance, in a motion to dismiss a third amended complaint, it might be helpful for a defendant to chip away at a plaintiff’s credibility by showing the flaws in the prior complaints. Or, in a discovery dispute, you may want to show that your client already bent over backwards to accommodate the other side. |
| Q. | Should I discuss favorable procedural history if I won at the earlier stage or stages of the case? |
| A. | Absolutely. This chapter presented examples of how to deal with adverse decisions, because that skill is trickier—the art of attacking a court’s reasoning without attacking the court itself. But wise lawyers emphasize why a judge agreed with them and what helpful facts that judge found. |
| Q. | Do I need to discuss every stage of the case? |
| A. | No. You need only to discuss every relevant stage. Thus, on appeal, you need not mention that the trial court denied your motion to dismiss or your motion to exclude an expert’s report—unless those details are relevant to your appeal or create important atmospheric benefits. |