The New Litigators Guide: Your First Undertakings Motion
Undertakings motions are probably the most common motion brought in personal injury litigation. Even if you’ve never given an undertaking, you can do this motion. Here’s an outline of how.
STEP ONE: TRY TO RESOLVE FIRST
Before you draft a motion, try to get what you need by just asking your opposing Counsel for it. Going to Court is the most expensive way to get something done. Don’t bring a motion unless you are left with no other choice. The Court will not be impressed if you bring an undertakings motion without having even written a single letter, and may penalize your client through costs.
Write your colleague, at least two times, spelling out what is outstanding. E-mail and call Counsel, warning them that you have instructions to bring the motion. Give them a reasonable timeline, taking into account what future event you may need the documents for (typically, at least a few months before mediation or pre-trial). The Rules of Civil Procedure require fulfillment of all undertakings within 60 days of discovery, but waiting at least six months, and writing letters asking for fulfillment, positions you better for a costs award.
Lastly, make sure your own undertakings are fulfilled before filing your materials. The other side will cross-motion for your outstanding undertakings if you don’t.
STEP TWO: PREPARING THE MATERIALS
Order the Transcripts Early
Get instructions to order the transcripts – they will cost a few hundred dollars. Order them by calling the court reporter office where the discovery took place. It will take a few weeks for them to come in.
When you get the transcripts, compare the undertakings given to the list the lawyer who discovered the party made. The discovering lawyer was busy examining, and may not have noted down the exact wording, or may have missed a few. The wording in the transcript is what should be used in your motion materials, not the wording from the notes of the lawyer.
Motion Materials
You will prepare, at least, a Notice of Motion, Affidavit, and Form 37B for your motion. These are bound together in your “motion record”, served on the other party, and filed with the court. You may also want a Factum – bound separately, and a Book of Authorities – also bound separately.
Seven Days is Not Enough Notice for a Motion
In most jurisdictions, Civil short motions (any motion under an hour in length, and yours will be) are heard at the same time at the same day each week. Call the Civil court and ask when short civil motions are heard.
Canvass mutually convenient dates for your motion with Counsel. Don’t just give them the seven days notice provided for in the Rules – they will seek an adjournment and win, and it is arguably sharp practice, or at least not very civil. Treat Counsel how you would like to be treated.
Sometimes Counsel won’t give you dates. In that case, you can pick the date, but still give them your materials a few weeks, at least, in advance.
Notice of Motion (Form 37A)
This sets out the time and place of your motion, the relief you are seeking, and your grounds. You bring a motion in the same Courthouse where your matter originated (look at the back page of the SOC, it will say), or if it was transferred, wherever it was transferred to (there will be an Order transferring the file if this is the case). The time is whenever the Court hears motions – generally 9:30am or 10:00am, but check with the Courthouse staff to be accurate.
Affidavit
This is your evidence in support of your motion. Another lawyer should be the affiant; you cannot be the affiant if you are arguing the motion. Keep in mind the affiant could be cross-examined on their Affidavit (though this rarely happens for Undertakings motions).
The affidavit needs to set out when the discovery occurred, what remains outstanding, any requests you’ve made for fulfillment, and why the documents are required. If you are moving for satisfaction of a question or undertaking that was refused, this is also where you explain why the refusal was improper. Typically, sections of the transcripts where the undertakings and refusals are made are appended. While it’s general practice not to, the Rules do require you to file a complete copy of the transcript with the Court unless the other party agrees you do not need to.
Undertakings and Refusals Chart (Form 37B)
This chart sets out what has been answered and when. “Question No.” and “Page No.” are referring to the transcript. Every line in a transcript is numbered. Remember, use the exact language from the transcript, not the way the lawyer wrote it down in their notes. The phrasing is typically not as pretty, but it is important for your credibility to stick to the transcript language.
What about a Factum?
You do not necessarily need a Factum for an Undertakings/Refusals motion. You can rely on oral argument and the rules if all you are moving for is the satisfaction of undertakings – all you need to prove is that undertakings were given and not satisfied. If there are Refusals, a Factum is a good idea to outline your legal authority for your position.
Draft Order and Costs Outline
Don’t serve or file this, but prepare it at the same time as your materials so you aren’t scrambling to do so the morning of your motion.
STEP THREE: THE WEEK BEFORE YOUR MOTION
Talk to counsel the week before your motion, or earlier, and get their position. The best outcome is to get counsel to agree to a Consent Order. If they agree to a Consent Order, you get what you need (an Order for fulfillment of undertakings) without having to argue a motion or use up the Court’s time. The Court appreciates when Counsel are able to resolve differences without coming to Motions Court.
If you can’t get a Consent Order, you’ll need to file a Confirmation of Motion six days before the hearing date. You will need to estimate your time. Try to keep it as short as possible – I would allot 10 minutes for an Undertakings Motion, or 15 minutes if it’s a Refusals motion, generally.
Prepare an outline of your submissions. Keep it brief and practice it out loud. This will help you catch issues with your reasoning and flow.
STEP FOUR: ARGUING YOUR MOTION
Block off your whole day in your Calendar.
At the Courthouse, ask what courtroom Civil Short Motions are being held. A paper docket will be posted outside the courtroom. Note what number your matter is. When you enter the Court room, a few minutes before Court begins, you’ll be asked by the registrar to fill out a counsel slip with your name, the docket number of your matter, and an estimate of the time you will need, which the Registrar uses for the record.
Find your opponent, and be friendly. It will make you seem more relaxed and confident, and it’s the professional thing to do, even if you think they are wrong.
The Judge is the master of the courtroom and will decide the order of who goes first. Typically there are many other motions being heard in the same slot as yours. Most Judges will ask if anyone has matters on Consent or Unopposed, and hear those first. They will then go by the docket list, or in some Jurisdictions, by who the most senior counsel is. Alternatively, they may announce they are purging the list before proceeding. All that this means is they will call each matter, and Counsel will have to appear before to explain (briefly) why they are here and how long they expect to be.
Once your matter is called, the format of the motion is simple: the moving party gives their submissions first. Indicate to the Judge when your submissions are complete (typical language is, “subject to any questions you may have, those are my submissions.”) Then the Judge will call on the responding party. From there, the moving party can reply.
Stand when you are speaking, and sit down when you are not. Do not interrupt your opponent. If they are saying something you must respond to, take a note and wait until they are finished and have sat down, then stand and make your point. Refer to your opponent as “my friend” and nothing else. The only person it is appropriate to speak directly to when you are before a Judge is the Judge. Do not speak at your opposing counsel in front of the Judge. There is an exception for whispering, but if you can avoid it, do.
Your opponent will probably say some things that you don’t agree with. You should not be visibly reacting to their argument. If you find yourself doing so, keep your face down and take notes the entire time.
At any point during your submissions the Judge can interrupt with questions for either you or your opponent.
Once reply is over, the Judge will either give a decision orally (more likely) or will reserve. Don’t visibly react regardless of the outcome in open court. The Judge will ask for submissions on costs, so be ready with your position.
CHECKLIST FOR FIRST UNDERTAKINGS MOTION
___ Write Counsel for undertakings/refusals
___ Order Transcript
___ Ask Counsel for availability for motion
___ Prepare Motion Record
___________ Notice of Motion
___________ Affidavit
___________ Form 37B
___________ Factum (if required)
___________ Book of Authorities (if required)
___ Serve Motion Record
___ Contact counsel for position on Motion week before
___ Confirm motion 6 days before
___ Prepare outline of oral submissions
___ Prepare Draft Order
___ Prepare Costs Outline
This piece is part of an ongoing series of blogs by Erin Murray, The New Litigators Guide.
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