The Predictable Path to Court Action
Navigating the Rules and Strategy of Legal Submissions
Preparing for a court action is actually a very predictable process. The predictability stems from the rules of court, which provide clear guardrails and a distinct path that must be followed. While surprises are possible, most of the time the process is quite predictable. Whether you are filing a petition, a motion, or an application, the specific documents—often titled a notice of application, notice of motion, or notice of petition depending on the jurisdiction—all serve the same purpose. They are the means by which you apply to the court to act on your behalf, and they require a specific, formulaic approach to lay out your case.
The Predictable Process
The rules of court create a structured, predictable path for legal action. This process is the way by which the court can act, essentially granting your application to the court to do something for you.
Form and Structure of the Application
The application to the court is done by way of a predictable form. This form is laid out in a sequential manner, detailing what you are seeking and the legal authority under which you are moving, such as rules of court, statutory authority, case law, or precedent.
Essential Elements of the Document
The court action document must lay out your basic legal reasoning. This includes identifying the parties and detailing the specific facts that matter to the instance for the judge to reach a conclusion.
Focus on Turning Facts
A key to effective writing is getting right down to the facts that matter and not overwhelming the judge with superfluous details. The most important facts are those that the case turns on. These are the facts that, when answered positively or negatively, will cause the decision to go in your favor or against it. If a statute requires a fact to be established, that is a turning fact.
Assessing the Likelihood of Success
The "notice of action" document allows you to succinctly gather all relevant facts. By laying out the case clearly, you can decide whether you even want to move forward, particularly if you don't have a very clear win.
Organizing Thought Processes
Preparing the document helps to organize your thought process and deepen your understanding of the law and the rules of court. This stage also allows for exploratory research into the prevailing case law and jurisprudence that is for or against your position.
Page Limitations
In many court actions, you are severely limited in space, often having only about nine pages to lay out your entire case. A page is typically lost to the header and style of cause, and the last half-page is used by the court for bureaucratic information.
Defining the Requested Order
Within the limited space, you must clearly state what you are asking the judge to do—what judgment or specific order you are seeking.
Convincing the Judge
For a specific order to be granted, the judge must be convinced that they have the jurisdiction to do it, that it is in the interest of the parties to do it, or that it is in the interest of justice to do it.
Cutting Off the Judge at the Pass
While many assume judges can do whatever they want, a judge who doesn't want to rule in your favor will find reasons not to. Your strategy must be to cut him off at the pass by providing every reason for him to find in your favor, according to your legal reasoning, to avoid the risk of him running afoul of the court of appeals.
Creating an Appealable Situation
The goal is to create such a strong legal position based on the facts, the law, and the precedents (jurisprudence) that if the judge rules against you, they have created an appealable situation. The Court of Appeal's job is to ensure judges are acting reasonably, sensibly, and logically—not bringing the administration of justice into disrepute.
The Strategy: Be Succinct
The strategy is to create a slick, minimal document that contains everything needed to win the day without being verbose. You want to be as succinct as possible while thoroughly arguing your point. Generally, you only have the space to argue your point in the affirmative.
The Target Audience is the Judge
The target audience for your documents—the notice of application, motion, or petition—is the judge. You are trying to convince the judge of your position so they will sign orders according to your wishes. Secondly, you are fortifying your position to create an appealable event with a high likelihood of success if they do not rule in your favor.
Guarding Against Overload: Affidavits and Evidence
You must use only what is necessary, especially when creating affidavits that bring in evidence. Be careful not to overload the file with redundant or duplicate details, turning a one-inch-thick file into a five-inch-thick one. Having the same fact sworn out by ten people does not truly move your position forward.
The Gamble of Filing
Filing and serving a motion is always a gamble. You can lose if you do not do enough, but you can also lose if you do too much. If the file is full of superfluous details, the judge might lose the point or become upset and rule against you, as judges are human.
The entire court action process, though initially intimidating, becomes less so as you become aware of the procedures. There is no substitute for experience. Every time you are in front of a judge, you gain confidence, more understanding, and learn something, whether the experience is positive or negative.
Ultimately, the goal is to be able to express yourself succinctly but clearly, communicating effectively so the judge can "pick up what you're putting down". By mastering this predictable process and focusing on the relevant facts, law, and jurisprudence, you maximize your chance of victory.
Would you like me to elaborate on the concept of turning facts or the page limitations in legal documents?