A recent post at the excellent Bow Tie Law’s Blog illustrates, in the realm of E-Discovery, the importance of explaining “why” to the judge. Specifically he discusses the importance of explaining why it is not possible, for reasons of cost or undue burden (or some other important reason), to access and provide Electronically Stored Information (ESI), such as email communications. While the focus of the post is on what kind of showing would be required to defeat a motion to compel production of ESI, it illustrates a larger point that bears repeating–make sure the judge understands “why.” Never presume it’s enough that you’re asking for relief and it seems like a good idea, or that the other side doesn’t have a good argument against it. While a case (or a string of cases) supporting the relief you’re seeking is always nice, it’s equally if not more crucial to explain why the court should rule your way. Why you’re asking for exactly the relief you’re seeking. Why you need it now. Why you didn’t wait too long to seek relief. Why there’s no reasonable alternative. Why the opposing party will not suffer prejudice when the relief is granted.
An illustration that’s closer to home. A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery. One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance. This meant he thought there was a 50% chance the trial would not be continued!
I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance. Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period. Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial! The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.