COMMENTARY: Draft dispositive motions with the appellate audience in mind

By Max Coolidge

If you're drafting a brief on a dispositive motion, like a motion for summary disposition, or if you're getting ready for a motion that could significantly affect the outcome of your case, you should be thinking ahead to the appeal. The arguments you make to the trial court will help shape the review in the appellate courts. Even though a ruling on a motion for summary disposition is reviewed de novo (that is, without deference to the lower court's decision), appellate judges are interested in understanding the reasoning behind the lower court's ruling and the arguments the parties made below. Your well-researched and well-reasoned brief supporting your motion will become the foundation of an excellent brief on appeal.

Keep the appellate audience in mind as you write each section of your brief. In the statement of facts, don't assume the court's familiarity with the case. The trial court judge may know the case inside and out, but the Court of Appeals judges have not lived the case the way the trial judge has. Your narrative of the facts might be the first thing that the judges and their clerks look at when reviewing the lower court record. It will be to your advantage on appeal to write a clear and compelling statement of facts in your brief to the lower court.

The documents you attach to your brief will also be important at the appellate stage. Deposition transcripts and other forms of documentary evidence do not automatically become part of the lower court record. Attaching these documents to your motion brief is the easiest way to ensure that the record is complete when it reaches the Court of Appeals. If you make a factual assertion in your statement of facts, make sure to cite, and attach, the document that supports that assertion.

In your argument section, take a paragraph or two to place your discussion of the law in a broad context. Again, the trial judge may be most interested in the narrow issue raised in the motion, but appellate judges are often more interested in the development of the law-especially if the case ever makes it to the Michigan Supreme Court. If the issue raised in your motion is contentious or subject to interpretation, educating the court about the tension in the law will be to your advantage. Even if the trial court disagrees with you, your arguments will have been considered by the trial court and become part of the record-thus preserving them for appellate review. If an appellate judge were inclined to agree with your reasoning, your arguments made below (and rejected by the trial judge) could easily be used to form the outline of a Court of Appeals opinion reversing the lower court decision.

Likewise, if you're on the winning side of a dispositive motion and anticipate going to the Court of Appeals as an appellee, the clearer your arguments, the greater the likelihood that your reasoning will end up being part of the court's basis for its decision.

Thinking of your motion brief as the foundation of a future brief on appeal has the added advantage of improving your advocacy at the trial court level as well. Any extra effort you put into developing the factual record and discussing the broader context of the law can't hurt your case, and the trial judge will appreciate your thoroughness. If all goes well, you'll win the motion, and never have to worry about turning your motion brief into a brief on appeal.

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After graduating summa cum laude from Western Michigan University Cooley Law School, Max Coolidge worked as a staff attorney for the Michigan Court of Appeals. He is now in private practice as an appellate advocate and consultant.

Published: Fri, Oct 23, 2015

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