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Extra Steps in Case Preparation


This section of the website is an attempt to succinctly present general principles which emerge from the summarized appellate decisions, are potentially useful in practice, but may be "missed" in preparing a case because they are "tangential" to the underlying substantive and procedural law. The topics and principles chosen for inclusion here might not turn up in a "key word" caselaw search which is narrowly focused on the identified issues, and may be hard to find in treatises and hornbooks on substantive law or procedure. But they may well be "determinative" in a  particular case.


Some examples of the kinds of topics and principles chosen for these pages:


Rigid Criteria for Summary Judgment Motions Brought by a Defendant


The courts are continuously addressing summary judgment motions brought by defendants, a topic covered in depth on the "Summary Judgment Motions" page. To win, the defendant must affirmatively identify, address and negate every potential theory under which the plaintiff could recover. Unless every possible theory of recovery is affirmatively and substantively addressed and negated, the motion will lose. The court will not need even to look at plaintiff's opposing papers. Skimming the "Summary Judgement Motions" page might alert you to a theory which must be addressed in your papers, but which is not immediately apparent.


If, for example, you are representing a property owner sued by a plaintiff who slipped and fell on ice on an abutting public sidewalk (for which the property owner is not liable under the local code), and you move for summary judgment dismissing the complaint, would you think to supply an affidavit from your client stating that he or she did not remove snow or ice from the sidewalk any time prior to the slip and fall? If you didn't, the motion might well fail. The property owner could be liable if, in removing snow, the dangerous condition was created. That possibility must be affirmatively addressed and negated in the motion papers. There may be a treatise or a hornbook which tells you about such things, but judging by the surprising number of appellate decisions ordering the denial of defense summary judgment motions (with no need to address the opposing papers), many attorneys haven't researched this issue. That's why the topic was chosen for the "Summary Judgment Motions" page of this Practice Guide.



Flawed Verdicts--Civil


A verdict may be set aside, for example, if improper outside influence was exercised upon the jury, if the verdict is internally inconsistent, if the verdict is against the weight of the evidence, if it is an "impermissible compromise verdict," or simply "in the interest of justice" generally. The trial judge has the power to set aside a verdict, direct entry of judgment in favor of a party, or order a new trial, on his/her own initiative. It might, therefore, be necessary to act fast when a problem with a verdict surfaces. The "Flawed Verdict-Civil" page collects the recent cases which have grappled with problem verdicts. Being familiar, as part of your trial preparation, with those problems, and how the courts have dealt with them, might come in handy in a pinch.



Prosecutorial Misconduct, Ineffective Assistance of Counsel, Challenges to Jurors


A criminal defense attorney representing a defendant charged with assault would prepare the case by learning the substantive law, becoming familiar with all the facts and documents, identifying any mistakes made by the police, bringing pre-trial motions to address mistakes by the police and the prosecutor, conducting pre-trial hearings, etc. Would defense counsel also research topics like "prosecutorial misconduct," "ineffective assistance of counsel," and "challenges to jurors?" Probably not. But there is a wealth of information in those areas, highly relevant to any criminal trial, which can be, and often is, the basis for a reversal by an appellate court. The "Prosecutorial Misconduct," "Ineffective Assistance of Counsel," and "Challenges to Jurors" pages in this section of the website could be skimmed in minutes, adding another, highly practical, level of preparation.



The Criteria for Court Review---Administrative Law, Arbitration, Civil Appeals, Criminal Appeals, Freedom of Information Law (FOIL), etc.


The criteria courts use in reviewing a particular genre of cases are constantly referenced in the appellate decisions. A court's review criteria are probably not researched by most attorneys, at least at the outset of a case. Yet those criteria can dictate how a case should best be presented initially, whether and when a particular ruling can be reviewed, and how the record should be protected for appeal. 


If your client is seeking a zoning variance and you are researching the statutory criteria, for example, you'll find it easily. But you might not look for the case which explains what happens if even one of those statutory criteria is not considered or addressed by the zoning board. On that basis alone, the zoning board's determination could be deemed "arbitrary and capricious" by a court powerless, under the applicable criteria of court-review, to do anything else.  That knowledge will affect how you initially present the application, and what legal authority you make available to the zoning board (or, if necessary, the Article 78 court).



Motions to Dismiss for Failure to State a Cause of Action---Documentary Evidence Submitted In Support or Opposition


There have been many decisions lately fleshing out the procedure for bringing or answering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7) where the motion is accompanied by documentary evidence. Even though the statute focuses on whether the complaint "states" a cause of action, both sides can present, and the court may consider, documentary evidence in support of their positions.  The defendant can present evidence to show a necessary factual allegation in the complaint is "not a fact at all."  And the plaintiff can present evidence to patch up holes in the complaint. The proper procedure and relevant considerations are available for quick review on the "Motions to Dismiss for Failure to State a Cause of Action" page. 



This section of the website, then, is designed to act as a very narrowly-focused supplement to the usual tools and techniques used in the preparation of a case. The topics and principles chosen for inclusion here are somewhat arbitrary because the criteria for inclusion are subjective. "Did You Consider This?" attempts to address only those issues which, in my judgment, might be skipped over during the initial preparation of a case, during preparation for trial, or when deciding whether to seek court review or appeal.


Quickly skimming through the relevant pages will, it is hoped, play a small, supplemental, but potentially important, role in your preparation, with a minimal investment of time. 










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