I recently read a well-drafted motion that made excellent points regarding a dispute. The opposing party had filed a response that was equally competent and equanimous. It was a rewarding experience because, too often recently, we have heard stories of ill-conceived and poorly drafted motions. Seemingly, the idea of a response has turned to exception rather than the rule. The rule is 60Q6.115, for the record.
The recent experience drew me back to Paul Harvey (1918-2009), a radio personality in the old days. In that age, it was common for people to transmit electromagnetic waves through the air from "transmitters" and to receive them on "receivers." We called the process "radio," and with it, it was possible to listen to news, music, or ball games in your car or as you walked, almost anywhere. And, this was done without an application, smartphone, or other modern technology.
The essential memory of Paul Harvey is the manner in which he would hook the listener. He reported the news for decades but was most famous for his stories about some "famous person." As the Independent reported, he would tell some story about them but would "not reveal the celebrity's name until the very last sentence." Then, after the "big reveal," he would deadpan
"Now you know ... the rest ... of the story."
The Harvey analogy has been used in this blog before. There is a list of prior posts at the bottom of the page. But he immediately came back to me in the recent motion/response experience.
The motion in this instance made for a hook. It cited authority for the relief sought. It was complete with various facts and descriptions. It painted a picture that was compelling and persuasive. In that, it was what a motion should be. After reading it, the merit of the movant's position was apparent, patent even.
The opposing party had filed a response. Many times, I have suggested the merits of a response. Failing to file one leaves the very real probability that the judge will decide the motion, having heard only one side of the story. There are always two sides—if there are not, then there is no dispute and no need for the motion.
The response was similarly informative. But it noted additional facts and circumstances. Though the motion was factually true, it was selective. There were additional facts unexpressed by the movant. The elaboration of the response provided "the rest ... of the story."
Some lessons from the example:
- If you do not file a response, the judge will never know "the rest ... of the story."
- It is unlikely that the movant will include all facts in their motion - more likely, they will include only those that support their desires.
- If the judge knows one side of the story, the outcome may be predictable.
- If you are not going to tell your side, why object to the motion?
