Pretrial Outline - Part 4

Motions generally

• Must be in writing (unless local rules permit otherwise)
• Must include grounds for relief
• Must include what relief are you seeking
• Local rules (there are a ton)
  • How long it can be
  • Consent from other party
  • Etc.
• If you’re going to seek a trial/ hearing on your motion
  • In federal court simply filing a motion gets it going but you should put on your memo and motion that you would like an oral argument
  • In state court, your motion doesn’t go anywhere until you put it on the calendar
• Common motions
  • Motion to strike – unnecessary info because it’s futile or insufficient; a way to get rid of a bad defense; “disfavored” motion; must be very targeted in what you’re wanting to strike and WHY
  • Motion for a more definite statement – when the complaint is so vague and ambiguous that the Δ doesn’t know what they’re being sued for; if it’s pro se and basically gibberish, just file a 12b6
  • Rule 6B Extensions of time and continuance
    • If you file before the expiration of the initial time limit, then you can get it for good cause shown
      • do this well in advance of expiration
    • If you file AFTER expiration of the initial time limit, you can only get it for “excusable neglect”
      • This basically means you better have had covid and have been hospitalized during the time
  • Motions to consolidate and bifurcate 42a and 42b
    • Consolidate
      • Multiple actions with same facts and parties
      • Discretionary for court, almost never overturned on repeal
      • Burden of proof on party making motion
    • Bifurcate
      • Convenience or to avoid prejudice
      • Can be cases as a whole or issues within cases
        • Issues for example can be bifurcating liability and damages
          • This is good when there is close call of liability and horrible damages
  • Motions in limine
    • Motion where you are seeking to get an advanced ruling from the court that piece of evidence will be admitted
      • Can come at pre-trial or during trial or it can come earlier if that could help strategy to settle
    • Federal rule
      • You don’t have to renew the motion at trial, once pre-trial is enough
    • NC Court
      • You must renew motion or you lose it
        • If your renewed motion is denied you must offer proof for the record or else, it can’t be appealed because there’s no evidence to argue that it should have been granted
  • Motion for Temporary restraining order
    • Motion must be by rule, you must provide an affidavit and you must show if I don’t get this permanent and irreparable harm will occur
      • Ex parte TRO you must also provide affidavit detailing how you notified other party OR why you shouldn’t have to notify them
    • Things you need for TRO
      • Motion and briefing
      • Verified complaint or affidavit detailing what will happen if this TRO doesn’t issue
      • If ex parte, affidavit why you are not notifying other party
      • Security for if the TRO is issued wrongly
      • Draft TRO order (you write the order then the judge signs it)
    • Limits
      • 14 days max
      • You can get one 14 day extension if judge allows
      • TRO needs to have what the specifics of the injury they’re trying to prevent is and the irreparable nature of injury
      • Why should it be issued without notice?
      • Acts its enjoining in detail
  • Preliminary injunction (balancing of harms, courts must balance one hardship against other)
    • These don’t have 14 day time limits unlike TRO
    • Sometimes this is the only relief P is seeking (not damages)
      • Because of the nature sometimes the permanent and Prelim Injunction are rolled into one (I think he said)
    • 4 factors a court must consider when deciding to issue one of these
      • Likelihood of irreparable harm to the plaintiff
      • Likelihood of injury to D if P succeeds
      • Likelihood of merit of the claim that P will it work
      • Likelihood
    • If P can really show that they will be hurt, then normally court rules for P doesn’t look as much at merits
    • If D is likely to be harmed or it’s a toss-up then P must show they’re likely to win
  • Summary judgement motion – Rule 56
    • No genuine issue of material fact
    • Often made after discovery because these are all about the evidence
    • Defined elements
      • Genuine-ness
        • If all party can go show is just a little bit next to a whole bunch of evidence
        • “minimal possibility” it could go your way is not enough
      • Material fact
        • Outcome determinative, the issue that’s disputed must matter for how the case goes
  • 12b motions
    • Rule: must bring all 12b motion together; can’t piecemeal
    • Biggest exception of SMJ (courts must always have SMJ, otherwise they can’t act)
    • Other exceptions include 12b6 and indispensable party motions; can be made up until the verdict
  • Issues of first impression
    • Relying on sister jurisdiction’s rulings & case law, treatises, provisions from a uniform law commission, law review articles

Depositions

Q: Who can be present at depos?

A: both sides of counsel and parties EXCEPT →

• Some parties do not have the right to be present (ex. improper purpose, protective order)
  • Written notice is required to all parties in the case
  • Types of depos
• Stenographic
• Video
• Phone

Q: Why don’t we allow a bunch of interruptions during depos?

A: too costly (because we’re paying the ct. reporter); nobody there to rule on objections; a so what? problem; a time problem

• Counsel can object to form but you cannot instruct the witness to not answer the question unless it’s a privileged matter; neither counsel can EVER instruct a non-party witness to not answer a question