In the era of the “vanishing trial,” motions provide an excellent opportunity to gain skills in written and oral advocacy, legal argument, and the presentation of evidence. In most actions, there will be at least one interlocutory motion, and the result of a motion can have a substantial impact on the outcome of an action. Some motions, such as motions for injunctions or security for costs, can have an obvious strategic benefit. But even discovery motions can also change the direction of the litigation.
Of prime importance is that there be a proper and worthwhile purpose for bringing the motion. Given the legal fees involved, and the potential costs consequences if unsuccessful, you must first take a hard look at “whether it’s worth it.”
Having crossed that bridge, your first inclination might be to immediately draft the affidavit. Indeed, “telling the story” is an important key to any advocacy. In our experience, your motion is likely to be more successful if you focus first on the relief you are seeking and the legal test, and then turn to storytelling.
Draft the order
You will likely repeat the form of order you are seeking in your notice of motion, factum, and in a draft order. As such, it’s important you know what you’re asking for. Is the relief you’re seeking provided for in the rules of court or relevant statute? Or is it provided for in the case law? Are you seeking any specific terms? Is there alternative relief that will satisfy your client’s interests? If you have a good handle on the order you’re seeking, your motion materials and factum will be more focused and likely more persuasive.
Read the law
Most lawyers likely read the relevant case law or a research memo on the issue when drafting the factum. Before sitting down to write the affidavit, you should know what the relevant legal test is so you can marshal the evidence to meet that test. There is nothing worse that discovering, on the eve of the hearing, that you had a better argument if only you had led additional evidence (except maybe losing because you didn’t have that evidence).
Draft your affidavit carefully
Your client’s affidavit will survive long past the motion. The evidence might be used to undermine your client’s position on a later motion or at trial. Or your client might be cross-examined on its affidavit. Though cross-examinations should be limited to issues in dispute on the motion, you might open the door to a broader cross-examination if you don’t draft the affidavit carefully. Often less is more (or at least better). Only include facts relevant to the motion.
Pick the right affiants
On procedural motions, your inclination might be to tender an affidavit from a legal assistant, clerk, or colleague, especially if the motion is procedural and you don’t want to be seen as wasting your client’s time. Though hearsay evidence is usually allowed on motions, you want to be careful to always lead the best evidence. If your evidence turns on alleged prejudice to your client, you may be better having the client give evidence (subject to concerns about cross-examination). Where possible, get the evidence from the horse’s mouth rather than through hearsay. Similarly, if all of the correspondence or communications on the motion are from the lead counsel, he or she might be a more appropriate affiant, even if someone else has to argue the motion.
Cross-examine with care
Though you or your client might be itching to put the responding affiant under the scrutiny of cross-examination, you should do so with care. In most cases, the entire transcript will be filed, and a wily witness might be prepared enough to add helpful evidence to the record that wasn’t in his or her affidavit. In some cases, the best evidence for your case is the other side’s lack of evidence.
Read the rules
This is different, of course, than reading the law, above.
The rules of court provide a belt full of tools that might be useful on a motion. For example, in Ontario:
• you can examine a witness on a pending motion, even if he or she didn’t swear an affidavit;
• you don’t necessarily have to append exhibits to an affidavit, which can be useful if the exhibits
contain confidential information; and
• the cross-examining party is liable for the costs of cross-examinations, whether or not he or she
is otherwise liable for costs of the motion.
Always file a factum
In a busy motions court, if the judge only has limited time, then the factum is the most likely document to be read. Even on an uncontested or simple motion, you can better your chances of success if you take the time to file a short factum. A pithy overview, an objective recitation of the facts, and a logically organized argument will give the court comfort in your position and put your opponent on his or her heels.
Once again less is more
As in most advocacy, you should strive to file the least complex and most user-friendly materials. Does the court need every single letter between counsel to decide the issue? Do you need to file the entire discovery transcript to explain the production issue? Do you need to cross-examine every affiant? Does the court need every case decided under the rule? Remember, motions court is usually the busiest courtroom in any courthouse, and motions judges have lots of experience in most procedural matters. If you can cut to the heart of the issue in dispute, you’ll engender the court’s trust (and gratitude).
Collaborate and co-operate
Though there is a tendency to keep opposing counsel at arm’s length especially over a hotly contested motion, you will be doing your client and the court a service by trying to be collaborative. Can the parties agree to certain facts? Can you establish a timetable for the delivery of motion records and facta and for cross-examinations? Can you agree to answer questions with the objector’s consent, thereby avoiding meta-motions on undertakings and refusals? Can you file a joint casebook or compendium for the court’s use at the hearing? Can you agree on costs to be paid to the successful party?
There are lessons to be learned
Good advocacy on motions is critical. There are skills to be learned. Take advantage of the continuing professional development courses offered by The Advocates’ Society, the Ontario Bar Association, the Toronto Lawyers Association, and others. In particular, hearing what judges have to say can be invaluable.
For most litigators, motions are a major part of their practice. In addition to being able to practise and improve advocacy skills (for that inevitable “bet-the-company” trial or appeal to the Supreme Court of Canada), a well-timed motion can have a major impact on the tenor and direction of an action. Enjoy!
Jeffrey Leon, LSM (firstname.lastname@example.org) is chairman of Pro Bono Law Ontario, a regent of the American College of Trial Lawyers, and a past-president of The Advocates' Society. He is co-chairman of Bennett Jones LLP's litigation department and has a general litigation practice with a focus on business litigation. Ranjan Agarwal (email@example.com) is an associate at Bennett Jones, and practises commercial, employment, and constitutional law.