Lawyers can learn. I've seen 'em do it. They may resist. I am reminded of the line in Yellowbeard (Orion 1983), a pirate spoof of great import:
"If there's one thing I've learned, it's learning things never taught me nuthin'. And books is the worst."
Many a lawyer apparently shares that sentiment. There is a lot of confusion among some regarding the role of a judge. I recently reviewed a motion in which the author invited the assigned judge to open an inquiry. Not just any inquiry, mind you, but the particular inquiry the lawyer felt was compelling for their cause.
The motion was half an invitation to be an advocate and half an unfortunate display of misapprehension of the judicial role. In the lawyer's defense, they did not conceive and incubate that misapprehension on their own. They were taught inappropriate judging over years by inappropriate judges.
Judges are deciders. They are not inquisitors. The job is to decide, not to investigate. See The Sleuthing Judge (October 2017); Sleuthing Addressed Again (January 2018); Deeply Concerned (November 2019); Kumquats and Pudding (May 2024).
I have also written a fair bit about Rule 60Q6.115(4) over the years. From the era when motion hearings only occurred in "exceptional circumstances," see Motion Practice Again (April 2019). Despite that rule, there have been judges who persistently conducted such hearings regardless of what the rules said.
It is likely that some lawyers perceived such events and learned from their personal experience. They drafted and filed some pleas for relief that were incomplete or even incoherent. That is not indicia of competence. There are way too many lawyers who allow paralegals to draft motions, and these are signed and filed by lawyers who exercise far too little critical oversight.
Those lawyers likely see their efforts fail. They find themselves in hearings facing inquiry into their incoherent, incomplete, or inappropriate motions. More readily, they might just find themselves receiving a simple order of denial. That is the path that avoids the sleuthing judge. It is expedient, simple, and direct.
File an incomplete motion, get a denial. File a rambling, incoherent motion, get a denial. It could be like that iconic moment a talk show host gave away automobiles - "you get a ..." and "you get a..." etc. You get a denial, you get a denial, etc.
The denial might drive a party to sit down and draft a coherent, complete, and competent motion. That is, try another approach to achieve their end. Or it might be accepted as a defeat and explained away to the client. Few lawyers will tell their client that their desire (continuance, sanctions, discovery) was denied because the lawyer did a haphazard and incomplete job.
But the lawyer who has faced the inquisitor judge or witnessed another skewered on their words should never count on a hearing regarding their motion. Most motions will be decided without a hearing. The outcome will arrive on the basis of the motion and response. So many seem to forget the opposing party may file a response.
Sure, as a respondent, you have every right to stay silent. But if you do and don't prevail, that is not likely anyone's fault but yours. It is illogical to decline to tell your story and then fault others when they don't answer your concerns.
Draft your motion. See How do you Spell Relief (November 2016). Follow the sage legal advice of the Spice Girls and "Tell me what you want, what you really, really want." Be succinct, be direct, and be clear. Cite authority (not string cites of spiraling inarticulacy, but a case, statute, rule, or two).
Know that despite your best effort, you may not prevail. Remember My Cousin Vinny (20th Century Fox 1992) and the lawyer's growth into competence. To this, Judge Haller says:
"That is a lucid, intelligent, well thought-out objection," immediately followed by "Overruled."
You will not always get what you want. But it is nearly certain you won't get what you don't ask and argue for. That does not mean you were wrong. But it means you move forward. Filing for rehearing to reargue the same law and facts again will not likely bring joy. Filing a motion that insults or belittles the ruling will not likely move things in your favor. Your sense of righteous injustice might make you feel better. But will it move your case or issue forward?
File the competent and complete motion first. Make your best case, tell your compelling story, and get your results. If the judge is wrong, the rehearing motion is important. But make it about the wrong, not about the reweighing. That a judge did not find your argument cogent or compelling is not grounds to reargue it again. A little louder and a little more sarcasm or vitriol will not likely win the day.
And do not count on the sleuthing judge to swoop in and take up your cause. If you want the facts of your opposition's motion or response exposed, then expose them. If you disagree, say so. But any expectation of a hearing is naive. Any expectation of the judge becoming your advocate (even if you have seen them do it before) is unsophisticated.
In the end, the lawyer can depend only on themself. Draft carefully and thoughtfully. File a complete and compelling argument. If you get a hearing, be succinct, direct, and focused. If you don't get a hearing, don't pout and prevaricate. Take the advice of Clint Eastwood: "Improvise, adapt, overcome." Heartbreak Ridge (Warner Bros. 1986). Live to fight another day.