June 22, 2024


Motions – pre-trial, mid-trial – are where the edge is gained in litigation.  Said more powerfully, the lawyer who understands and excels in motions practice – narrowing the claims, restricting or amplifying the admissible proof and how it is to be considered – is the lawyer who controls the litigation and is better positioned to win or to know when and how to settle.

But how to prepare and present motions well?  Those are the topics of POINT WELL MADE (NITA 2016).  A wonderfully succinct text of 159 pages, it is packed with insight upon insight that individually and collectively will improve motions practice.  The authors have the know-how.  Nancy Viadik was a trial level judge and now is on a state appellate bench; and co-author Rebecca Diaz-Bonilla is an attorney and communications consultant.    Both teach for NITA.

Rather than summarize the book’s contents, which range from “Preparing for the Hearing” to “Themes,” “Facts,” “Law,” and “Responding to Questions,” this review will print selected excerpts verbatim.  If those don’t convince one of the value of this guide, nothing else will.

  • Successful planning for a motion hearing involves planning for spontaneity.
  • [If you are arguing that certain documents are business records,] it is even more compelling and persuasive if you also argue the reasons these records are deemed trustworthy. Show the judge how and why the business operates with the records and how important the records are to the operation.
  • Be careful of the domino arguments, because when one falls they all fall. To avoid this outcome, always plan for a consistent backup position.
  • Visual aids and demonstratives are often wrongly forgotten in motions practice…Simple and clean is always better than complicated.
  • Why use a theme in a motion hearing? First, the act of disciplined simplification helps to focus your thinking…[and] focuses the judge’s attention on what you see as important, gives her a framework to look at the case, and simplifies difficult concepts.
  • Your bad facts must come from your mouth…Spend at least three times as much talking about your good facts…Exceptions do exist, especially for the respondent…who has to tackle the hard issues out of the gate. In general, place bad facts in the middle of your story…
  • All of our brains are made to remember pictures. Judges’ brains are too.  Paint pictures in the judge’s mind by using sensory language – language that helps the judge see, hear, feel, smell, touch, remember and imagine.
  • The law should be discussed as conversationally as the facts that make up the storyline of the case…[P]ick the style that you would use to have a spirited debate in a restaurant.

These are but a few of the book’s insights.  Even more valuable are the step-by-step guides – with sample dialogues – for the circumstances that arise in oral argument: responding to questions that interrupt the flow of your argument, addressing hypotheticals, and dealing with hostile and “softball” questions.

As explained in the Preface, “POINT WELL MADE…is about how to spark a fruitful discussion with the court during a motion hearing.”  That should be the aspiration of every attorney presenting or responding to a motion; with his book in hand or mind, the likelihood of that outcome is increased greatly.