asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

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asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby Anonymous User » Fri Feb 10, 2017 12:06 pm

I guess I should start off by noting I dont work in biglaw. so, whatever ordinary partner/associate dynamics at play there dont necessarily attain to my situation. Partner asked me to draft a state court motion to dismiss. We talked about it earlier this week. He seemed pretty sure the motion would succeed, as was I. But I recently fond a case, seemingly on all fours with ours, in which our state supreme court dismissed our argument.

Should I tell the partner? I guess my concern is that I don't want to appear as if I'm second guessing his judgment.

1styearlateral

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby 1styearlateral » Fri Feb 10, 2017 12:19 pm

Tell the partner and let him decide how to proceed.

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los blancos

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby los blancos » Fri Feb 10, 2017 12:19 pm

I assume you had to pass the MPRE at some point right?

Should I Transfer??

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby Should I Transfer?? » Fri Feb 10, 2017 12:23 pm

Yes, you obviously bring the case to the partner's attention.

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby champ33 » Fri Feb 10, 2017 12:53 pm

Finding that case and bringing it to his attention is what a competent lawyer would do. Alternatively, having your argument rejected on the basis of that case will lead him to believe your research skills are lacking. Inform him of the case and, ideally, come up with a suggestion of how to distinguish your case from the precedential one to present him at the same time.

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby dixiecupdrinking » Fri Feb 10, 2017 1:00 pm

Yes? I don't understand the question. What else would you do? Ignore the case, file the motion, and wait for it to lose because there is directly applicable controlling precedent against you? Your only option is to distinguish it, which sounds like it will be a weak case based on what you've said.

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby FSK » Fri Feb 10, 2017 1:09 pm

imagine you are the partner, what do you want to recieve?

Something like:

"Hi boss. On Wednesday [or whatever], you asked me to draft [type of motion] for [case], arguing that [brief description of legal theory]. My research has revealed [x case], attached and annotated, which may defeat our position

[Brief summary of case & relevant legal issue, showing you actually understand the case]. I've confirmed this is still good law with [sheppards or w/e]. This seems to defeat our client's position because [concise but thoughtful reasoning].

[Ask what next steps he would like to take]

Or something like that.
Last edited by FSK on Sat Jan 27, 2018 1:42 pm, edited 1 time in total.

smallfirmassociate

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby smallfirmassociate » Fri Feb 10, 2017 1:11 pm

champ33 wrote:Finding that case and bringing it to his attention is what a competent lawyer would do. Alternatively, having your argument rejected on the basis of that case will lead him to believe your research skills are lacking. Inform him of the case and, ideally, come up with a suggestion of how to distinguish your case from the precedential one to present him at the same time.


Bingo.

Draft a concise memo that doesn't bill out too much time. Explain the problematic cases and identify multiple ways (if possible) that your case is different without going too far down rabbit holes on those ways.

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby pml87 » Fri Feb 10, 2017 4:01 pm

smallfirmassociate wrote:
champ33 wrote:Finding that case and bringing it to his attention is what a competent lawyer would do. Alternatively, having your argument rejected on the basis of that case will lead him to believe your research skills are lacking. Inform him of the case and, ideally, come up with a suggestion of how to distinguish your case from the precedential one to present him at the same time.


Bingo.

Draft a concise memo that doesn't bill out too much time. Explain the problematic cases and identify multiple ways (if possible) that your case is different without going too far down rabbit holes on those ways.


You have to tell the partner. Not telling him about this hurts the client's case. You are not helping anyone, least of all yourself, by not disclosing relevant case law.

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mjb447

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby mjb447 » Fri Feb 10, 2017 4:39 pm

"Second guessing" the partner's judgment using legal research is part of your job, particularly if he's as wrong as you say. (Obv phrase it respectfully and deferentially, though.)

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby k5220 » Sat Feb 11, 2017 7:18 pm

I would do a little work to see if you can find any way around it, and then send an email alerting him of the problematic case, telling him that you might be able to make X argument in response (but maybe noting that you don't know if that will work or if that seems weak to you), and asking him what he wants to do. He might see an answer you're missing, the new case might change his mind, or he might be stubborn and have you file the motion even though it seems like you're going to lose. Worth it to check though

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rpupkin

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby rpupkin » Sat Feb 11, 2017 7:33 pm

k5220 wrote:I would do a little work to see if you can find any way around it, and then send an email alerting him of the problematic case, telling him that you might be able to make X argument in response (but maybe noting that you don't know if that will work or if that seems weak to you), and asking him what he wants to do. He might see an answer you're missing, the new case might change his mind, or he might be stubborn and have you file the motion even though it seems like you're going to lose. Worth it to check though

Excellent advice. But stay true to k5220's suggestion to do only "a little work" to find your way around the unfavorable authority. Spend a couple of hours thinking/researching about possible ways you could prevail notwithstanding the case, and then tell the partner about the case and your thoughts. If your assessment of the case is correct, the partner (and client) deserves to know about it as soon as possible.

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2014

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Re: asked to draft motion; discover law suggesting motion will not succeeed...tell partner?

Postby 2014 » Sat Feb 11, 2017 7:52 pm

Think about the alternative lol

Partner stands up to deliver a flowing oration intended to crush the opposition only to have the opposition pull this case out, since they will have found it too, leading to the motion's failure in short order.

Partner asks you "how did we miss this???":

"Oh we didn't miss it, I found it but was afraid it would look like I was questioning your judgment so i sat on it...we'll get em next time!"

If you want to be thorough send him a note on the case and then propose a way to differentiate as others said above.



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