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Delegating on a Deadline: Opposing Motions to Dismiss

One of my last posts considered a defendant making a motion to dismiss; now let’s consider the plaintiff who is facing one. Even after the U.S. Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, the Rule 8 pleading standard favors plaintiffs. There are no “magic words” for pleading a claim. What’s required now is more facts, and the best time to get them is in pre-suit investigation. Gather your client’s records and obtain authorization to get third parties’ records. Request publicly-available information. Visit everyone’s websites. If a physical location or physical evidence is important, find it and learn about it. Locate surveillance tapes and mobile-phone videos. If there are gaps in your client’s knowledge, speak to others. Compile your findings into a well-organized file that will help you build a chronological narrative of the facts. As you draft the complaint, keep Rule 12(b)(6) in mind. The court will take your allegations as true, so include facts establishing each element of every claim. Research recent cases that have survived 12(b)(6) motions, or where dismissals have been reversed on appeal, and focus on cases with comparable facts and legal theories. Wherever courts find similar allegations state a claim (or don’t), compare those allegations to yours. Where a court describes allegations as “conclusory,” be sure you don’t rely exclusively on similar allegations. Keep your research in a file—it will save time if a motion is made. When the motion is made, look to the federal court’s local rules and preferences for your time to respond (Local Rule 7.1 in the District of Minnesota). Time will be short. Your investigation and research files will help you respond quickly, whether you’re writing the brief yourself or delegating it to an associate or freelance attorney. Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal...

Brain Science, Mark Twain and Proofreading: Why a Freelancer Will Help

Why do we keep missing things when we proofread our own work? And what can we do about that? The answers lie in brain science. The brain operates at two levels: a conscious, more careful mode, and an unconscious, instinctive level. That unconscious level processes outside conscious awareness. To prevent overload when operating in that mode, the brain shows us what we expect to see. So if there’s an extra identical word, the brain will not “see” one of them. Or if we use the word “there” when “their” is correct, we’ll see “their.” Mark Twain wasn’t a brain scientist, but he understood all this. He said about proofreading: And then there is that other thing: when you think you are reading proof, whereas you are merely reading your own mind; your statement of the thing is full of holes & vacancies, but you don’t know it, because you are filling them from your mind as you go along. There are some ways to “trick” your brain into seeing your copy fresh. One way is to read the text backwards, sentence by sentence.. Without the ability to put the text in context, your brain will be more likely to see grammar and spelling errors. You can accomplish some of the same things if you read paragraphs out of order. You might read your text out loud. This will help you circumvent the brain’s autocorrect process. Printing the document may also help you “see” the text differently. Or, have someone else review your text. Another reader will see the errors your brain is screening out. Freelancers are available to help you with this. Freelancers can help with all aspects of your writing, from proofreading to more substantive editing, to research and original writing. A freelancer reviewing your text may be more likely to see things as your judge will, as...

Let a freelancer help you enjoy this fall!

Let a freelancer help you enjoy this fall! The State Fair has come and gone. Nightfall is coming earlier. There is a nip in the air at night. We all know what that means: summer has come and gone, and fall is here. But fall brings its own special pleasures. Let a freelancer help you with your workload, so you can enjoy the season.   What are some good fall opportunities? And what can you delegate to a freelancer to help make that happen? Five autumn ideas: Drive up to the North Shore and look at changing fall colors. Or drive down to Winona for more fall brilliance. Go to an apple orchard and pick up special apples and apple cider. Or go to a pumpkin patch and pick up pumpkins for carving. Go through a corn maze and ride on a hayride. Visit the scarecrow festival at Emma Krumbee’s. Kids will love this. Cruise the farmers’ market. Everything that comes in at the end of the season is in peak condition. All kinds of squash. Pumpkins. Gourds. Apples. Tomatoes and corn for a while. Some surprising things like rhubarb (my favorite). Head to one of the craft breweries. Take a tour and bring home a growler of your favorite. Stroll through a favorite museum. One idea is the History Center. A show that looks good is “Toys of the ’50s, ’60s and ’70s.” Featuring things like Gumby, Mr. Potato Head, and Hot Wheels. Again, might be fun to see with kids. Five things you can spin off – to free up more time: Some legal research. A freelancer can do some research you may need for trial or appellate briefs. Or just for assessing the strength of a case. Drafting some motion papers. A freelancer can draft motion papers for you. Pieces of a brief or a memorandum....

Freelance Attorneys and Immigration Law

Unfortunately, this sign—inviting visitors entering the United States on the Yukon River in Alaska to simply check in with U.S. Customs and Border Protection using the yellow phone on the side of the store in town—isn’t how most foreign nationals are instructed to enter the United States. Immigration law is complex and can be very time-consuming for both the attorney and the client. A freelance attorney can help an immigration attorney with many different kinds of filings, from I-601 waiver cover letters to Board of Immigration Appeals (BIA) briefs. Many immigration attorneys are solo or small firm practitioners and it can be hard to sit down and focus on a lengthy written argument: the phone rings, clients drop by for a quick chat, or an email pops up that needs an immediate answer. Immigration attorneys should consider hiring a freelance attorney to write waiver cover letters, immigration court briefs, and Board of Immigration Appeals briefs because a freelance attorney can concentrate on the most important task: persuading the fact finder. Form I-601 and I-601A cover letters should turn your clients into more than paperwork in front of the immigration officer. An experienced freelance attorney can take a stack of hardship evidence and weave it into a compelling story regarding the hardship your clients would face if separated from each other or forced to move their lives abroad. Immigration court briefs and Board of Immigration Appeals briefs require analysis and research that can be very time consuming. The Board of Immigration Appeals typically give only 3 weeks to prepare your brief and it can be difficult to find the time to review the transcript and draft the brief in that time while you have other clients to manage. A freelance attorney can review the transcript and Record of Proceeding for legal errors made by the immigration judge and turn those...

Delegating on a Deadline: Motions to Dismiss

Everybody knows the longer a case goes on, the more money you spend, and that the closer you get to trial, the faster you spend it. If it’s a case you don’t want to try, or believe you shouldn’t have to try, dispositive motions offer a way out. Dispositive motions—motions to dismiss, motions for summary judgment—are the kind that make or break the case. You get one good shot, and your motion must make it obvious to the court why the case should proceed no further. Since the U.S. Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal in 2007 and 2009, respectively, motions to dismiss under Federal Rule 12(b)(6) have experienced a renaissance. These motions are directed to the allegations of the complaint, and may be filed instead of an answer within the 21 days provided by Rule 12. Let’s say your client gets served with a federal complaint and must choose—soon—whether to answer or dismiss. Research into current pleading standards is critical. Ideally, you’ll need cases with similar factual allegations that were dismissed under Rule 12(b)(6). Compare those allegations to your complaint; if similar cases get dismissed, there may be grounds for a motion. Remember that procedural posture matters: cases dismissed after discovery on motion for summary judgment, or after trial, or on appeal, will provide little support for the argument that a claim was not properly pleaded. Done right, a motion to dismiss can quickly end a case that has no chance of success. If not well supported by proper authority, however, it can be an expensive shot in the dark. Because sophisticated research is essential and time is short, motions to dismiss can be a great project to delegate to an associate or a freelance attorney. Karin has been a litigator at Debevoise & Plimpton; a law clerk to three Minnesota federal...

Minnesota’s New Appellate Rules: Top 5 Things to Know

Minnesota litigators: new appellate rules went into effect on July 1. Here are the highlights of what you need to know. Don’t prepare an appendix, but your addendum can be longer. As of July 1, 2014, no party may attach an appendix to its brief. Appellants are still required to prepare an addendum with the relevant order included. Both parties are also allowed 50 pages of discretionary content in the addendum. See Minnesota Rules of Appellate Procedure 130.01, 130.02. You (probably) don’t need a cost bond. Under the new rules “[n]o cost bond is required for any appeal, unless ordered by the trial court on motion and for good cause shown.” See Minnesota Rules of Appellate Procedure 107.01. Don’t file as many copies of the brief. The rule stating the number of paper copies of a brief to file with the appellate courts has been changed to refer to standing orders from each court. As of July 1, both the Minnesota Supreme Court and the Minnesota Court of Appeals require five copies of briefs. Leave two unbound for the supreme court and one unbound for the court of appeals. See Minnesota Rule of Appellate Procedure 131.03; Standing Orders from Minnesota Supreme Court and Minnesota Court of Appeals. You don’t need to get a certified copy of the order. The relevant order or judgment must still be filed with the appellate court, but it is no longer necessary to have the document certified. See Minnesota Rule of Appellate Procedure 103.01, Advisory Committee Comment – 2014 Amendments. E-filing for all appellate documents is on the horizon. Other changes to the appellate rules have been made to accommodate electronic filing in the appellate courts. There is a pilot project in the works, but e-filing is not allowed in the absence of a court order. See Minnesota Rule of Appellate Procedure 125.01. If...

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