For some strange reason, these come up in no-fault an awful lot. During argument, they are usually used as a last resort. In papers, they are used as a matter of course. It’s not that I particularly care that they are used, I’m just curious about why they seem to pop up in no-fault so often; seemingly more often than in other areas.
Here are some of the ones I usually find:
5. Straw man
I’ll add the definitions later tonight or tomorrow.
I’m moving two comments into the post because I like them and the authors make some good points.
David this is your biggest complaint about the contents of No Fault papers? The use of newspaper clippings, NICB Alerts, and citation to increasing complaints of fraud do not bother you.
Where are the rules of evidence?
To be fair to Defendant’s what about those silly fill in the blank with a signature pre-prepared (as one was made two years ago and its been photocopied for a hundred providers) Affidavits of Mailing — you know where the signature and notary appear on the last page all by itself. I’ve seen some of them.
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Here are my gripes now that you mention it….
When reading an appeal (or answering brief), I hate when my adversary uses the phrase “trial court” when the appealable paper is from an order that emanated from a motion. The proper phrase is either: “lower court”, “motion court”, “special term” (for the NYC courts), or “IAS Court” (for Supreme Court). The phrase “trial court” should only be used for cases where a judgment is entered following a plenary trial. Oh yeah, do not appeal oral motions made during trial. Unreal.
I also dislike trite phrases in appeals and motion papers unless the writer puts the phrase in quotations or the writer is letting the reader (me) know ahead of the time that (s)he is about to use a colloquial phrase.
Also, parallel citing is big no-no in New York practice. My personal gripe: Paragraphs should be numbered. We do not write “memoranda of law” in New York practice, we use Affirmations. Take your federal or criminal practice somewhere else…
If you cannot number paragraphs due to the utilization of form banks (we are sympathetic to the volume practice), then SHORT paragraphs should be used, and it is preferable that each paragraph is nicely indented. I also detest when a writer fails to put the Department (or lower court name) and year that a case came from. It is annoying, and only the Appellate Division and Court of Appeals may do that.
Also, I dislike when a writer repeats the same point ad nauseum. While repetition is the father of learning (and for passing the bar examination), time is of the essence. Make your point, apply it and move on. There is nothing more annoying than when an Appellant (or Respondent) repeats the same thing throughout their brief (thereby turning a 20-page brief into a 50 page brief viz a vi pointless repetition), or decides to use a Reply brief as a reiteration of his/her Appellant’s brief. I read it once…and it is enough.
Furthermore, learn to use “c.f.” or “but see”. You cannot hide adverse authority from me or many others, including Mr. Barshay. We have read every damned no-fault case from the last 25 years, have debated it amongst each other and know if you are pulling a fast one. Don’t do it. You will be caught. It is embarrassing and sanctionable.
Lastly, if you do not preserve an argument on appeal and try to inject new theories into an appellate brief, do not try to make believe we are blind. It will be seen and scorned. Either argue that the issue is ripe because it cannot be avoided or just walk away. There are millions of no-fault cases, you will preserve the argument next time.
By the way, my favorite phrase is as follows: “It is beyond cavil…” I have seen many of the finest no-fault attorneys utilize this phrase, much to my detriment.
AJ