Adams and Reese Counsel and Appellate Litigation Attorney Aaron McLeod had his article “Don’t Hold Your Fire: How to Oppose Dispositive Motions” published by the American Bar Association. McLeod’s article appears in the ABA’s Litigation Section, Appellate Practice, Practice Points content section.

Don’t Hold Your Fire: How to Oppose Dispositive Motions

By Aaron McLeod, Adams and Reese

Suppose you’re about to be attacked by a bear. There you are, enjoying nature and minding your own business when you spot the hairy beast lumbering toward you. You have three shells left in your shotgun, but you feel confident that two would be enough. Do you save that last shot?

Of course not. Two may do it, but you won't know for sure until it's too late to change your mind, and the outcome of that encounter is going to be, well . . . decisive, one way or another.

What does this have to do with appeals? Everything. Appellate lawyers are forever going on about the need to trim your arguments down to the bone, to save overworked judges time and effort when reading your brief. Pick your best arguments, the mantra goes, and omit the rest.

That advice is sound, but like most things in the law, there's an exception. When you are the non-movant opposing a dispositive motion in the trial court, such as a summary-judgment motion, you must include in your responsive brief every argument that you might want available to you on appeal, even if you think it unlikely that the motion will succeed and even if you think you can prevail using only one or two arguments. Like bears, trial judges are unpredictable creatures, and if your adversary's motion is granted and you appeal, you risk the appellate court deeming waived any argument that you didn’t make to the trial court in opposing the motion. And note well: At least in some jurisdictions, you cannot preserve an argument for appeal by raising it for the first time in a postjudgment motion. A trial judge has discretion to consider a postjudgment argument, but will not be reversed for failing to. See, e.g., Ex parte City of Montgomery, 758 So. 2d 565 (Ala. 1999).

It may not be a fair rule, because the movant can pick and choose their arguments, and if they lose, the case simply goes on. But as the party opposing a dispositive motion, the downside potential for you is much higher if you omit potentially meritorious arguments simply to save space. So if you think your two good arguments will suffice but have a third issue you could raise, remember that in this case it is better to err on the side of inclusion. By the time the judge rules, it may be too late to fire that last shot.

“©2024. Published in the American Bar Association Litigation Section, Appellate Practice, Practice Points, Jan. 15, 2024. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.”