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June 24, 2007


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Scott Greenfield

The question of whether to overload a motion with exhibits or take a more surgical approach is the age old choice between trying to win in the first place or protect the record.

My experience is that submission of a thousand pages is a guarantee that the court won't bother to read your papers. When they get 10 pounds of paper on their desk, versus ten pages of tight argument with exhibits that nail down the issue, the ten pages wins every time. They just stare at the mass of papers and sigh, thinking I just don't want to read this.

But your experience on an interlocutory appeal raises a different problem as well. If the proof is on page 28, and the lawyer attached pages 23-27, then the problem isn't with the paper but with the lawyer. That, of course, is a different problem.



Scott, you can still have a tight argument with entire deposition transcripts attached, as opposed to excerpts.

And, while you raise a good point re: the problem being with the lawyer, when it comes to appeals, you never know exactly what you might need to rebut something that opposing counsel has said.

No matter how much preparation you've done prior to 1) filing the complaint 2) requesting discovery 3) preparing for a deposition 4) etc. etc. etc---issues can always arise that you hadn't envisioned, if you've got decent opposing counsel.

For that reason, it's always helpful to have the entire deposition transcript at your disposal as opposed to a few pages here and a few pages there.

And, the judge doesn't have to read the entire attached transcript--just the pages referenced in your affidavit/memo.

Another problem I've encountered with the splice and dice approach is that your secretary inevitably leaves out at least one page. You end up spending more time checking and double checking the pages attached than you'd need to do if you simply attached the entire transcript.

Of course, much of this could be avoided if you simply obtained affidavits from your own clients that set forth clearly and concisely exactly what you needed for your proof.

You'd probably have to use deposition exhibits for the testimony of the other side, but at least using affidavits from your own clients limits the amount of paperwork.

But of course, that's just my humble opinion;)

Scott Greenfield

I agree that affidavits, directed toward the specific issues, is far more effective than depositions. I guess I was talking about the bulk issue. Using depositions in lieu of crafting an affidavit is often just a lazy approach.

But I'm a criminal defense lawyer. What do I know about EBTs?

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