Eamonn S.
Wisneski is an attorney with Dzialo
Pickett & Allen PC
in Middletown and
Old Saybrook. He
primarily practices
in the fields of personal injury,
workers’ compensation, and
other civil matters for plaintiffs
and claimants. A co-chair of the
CBA Young Lawyers Section
Litigation Committee since 2011,
Attorney Wisneski received the
CBA-YLS “Chair’s Award” for the
2013-2014 bar year and the CBAYLS “Star of the Year” award for
the 2012-2013 bar year.
By Eamonn S. Wisneski
For many new attorneys, arguing a short
calendar matter before a judge in a courtroom filled with experienced practitioners can be a daunting task. Although
there is no better way to learn about short
calendar procedure than attending court
and arguing matters, this article will provide an overview of the short calendar
system and how to prepare and deliver
an effective short calendar argument.
What Is Short Calendar?
20
In Connecticut state court, the “short calendar” is the means by which litigants
submit matters to be decided by the
court. Pursuant to Practice Book § 11-13,
“unless otherwise provided in these rules
or ordered by the judicial authority…all
motions and objections to requests when
practicable, and all issues of law must be
placed on the short calendar list.” Motions to reargue, motions for permission
to file summary judgment, and bills of
costs are a few examples of matters that
Connecticut Lawyer March 2015
generally do not appear on the short calendar, although this practice may vary in
different courthouses.
All eligible motions and objections are
placed on lists of matters to be decided
by the court, sorted by different areas of
the law (such as civil, family, property,
and family magistrate) and different calendars (such as arguable, non-arguable,
and special proceedings). The short calendar generally proceeds weekly in each
judicial district, with arguable matters
argued live in court and non-arguable
or “take papers” matters decided later in
chambers. Judges may render decisions
in open court during arguable matters,
but will more often take the matter under
advisement to craft a written decision.
Markings
Litigants are required to timely and appropriately indicate to the court which
matters should be decided before the
matter can be considered by the court.
This process is referred to as “marking”
a matter. Generally, the only permissible
short calendar markings for civil matters are “ready,” “take papers,” and “off.”
A “ready” marking means that a matter listed on the short calendar as being
arguable should be heard on the scheduled date. A “take papers” marking generally means that the court to decide a
non-arguable matter, although this marking may be used in conjunction with a
request for oral argument to request that
the matter be set down for argument at
a later date. An “off” marking means that
the matter will not proceed during the
short calendar that week.
Markings by attorneys and law firms
must be submitted electronically through
E-Services (other than practitioners who
have already obtained an exclusion from
this requirement). To make markings, log
in to E-Services on the Judicial Branch
webpage, then select “Short Calendar
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Markings Entry.” After sorting the results
to locate the desired matter, select the
appropriate marking, enter certification
and identification information, and click
on “Enter Markings” to complete the process. Please note that all parties of record
must be notified of all markings, which
is generally satisfied by faxing the marking receipt to the other parties to ensure
timely notice of the marking.
Practitioners should be mindful of the
strict deadlines for marking short calendar matters. Generally, a matter appearing on a Monday short calendar must be
marked by the prior Thursday at 4:00
p.m.—be especially wary of state holidays that will alter the marking period.
What Motions Are Arguable?
Practice Book § 11-18 provides that
“[o]ral argument is at the discretion of
the judicial authority” except as to certain
matters considered arguable as “a matter
of right,” such as motions to dismiss, motions to strike, and motions for summary
judgment. The matters should be marked
“ready” for argument on the scheduled
date. There are also a wide variety of matters designated by the chief court administrator as arguable under Practice Book
§ 11-18(e), which are listed in the civil
short calendar standing order.
For all matters not arguable as a matter of
right, oral argument may be requested by
filing a “Request for Argument” (Form JDCV-128) or other procedure designated
on the short calendar on which the matter
appears. Please note that merely requesting oral argument does not automatically
make the matter arguable, as the judicial
authority may still deny argument and
decide the matter on the papers.
Preparing to Appear at
Short Calendar
Any attorney preparing to appear at
short calendar should be thoroughly
knowledgeable about their own motion
or objection, their opponent’s filing, and
the entire file. Young associates handed a
file for argument should remember that
even if another attorney is considered
responsible for the file at the office, the
judge will hold the attorney in the courtroom responsible for the file during oral
argument. Special care should be taken
to become familiar with the factual back-
ground of the case, procedural history,
legal issues, and relevant case law. Oral
argument is unpredictable, and the ability to confidently answer any inquiries or
bring up potentially distinguishing facts
may be the difference between winning
and losing a hotly contested matter.
Litigants should also review the online
“Case Detail” page to verify whether any
new filings have been made shortly before short calendar that might not have
made it into the physical case file. Case
lists within E-Services may be filtered in
various ways, including sorting by most
recent activity. E-Services should be
checked during preparations (and again
before leaving for court) to verify whether any additional filings have been made
that are relevant to the issues to be decided at short calendar.
Deciding what to bring to short calendar
will vary depending on the matter to be
argued and the overall size of the file. The
entire file should ordinarily be brought
to court unless the file is too voluminous.
Proof of marking is useful both to prove
that the other side received notice (if
needed), and also to have the calendar
and position number of the matter readily
available to determine courtroom assignment (in some jurisdictions) or answer
the court’s questions. Be sure to print out
extra copies of relevant unreported decisions for the court and opposing counsel.
Getting to Short Calendar
All the preparation in the world will not
matter if the attorney does not arrive
timely for oral argument. Make a point of
becoming familiar with the courthouse
before the day of oral argument, including where the courthouse is and where to
park. There are often long lines to enter
courthouses on short calendar days, but
many courthouses have designated attorney lines to bypass the much longer
public line.
Attorneys should also familiarize themselves with short calendar customs
unique to particular courthouses. In some
courthouses, such as Middletown, specific short calendars are always held in the
same courtroom. In other courthouses,
such as Hartford, short calendar matters
are divided up into different courtrooms
around the building and attorneys have
to check in with the information desk for
the particular courtroom assignment. Be
sure to arrive early if unfamiliar with the
specific courthouse procedure.
Once in the proper courtroom, try to
find opposing counsel to confirm attendance and whether any agreements can
be reached before oral argument. Some
judges will bypass matters until the counsel have a chance to come to a resolution
or otherwise narrow the issues to be decided.
Preliminary Matters
Once court is in session, the judge may either poll all present counsel regarding estimated argument length, or simply begin
calling cases in a predetermined order.
If the judge is polling the present counsel, stand up when the matter is called
and clearly indicate whether counsel are
present and an estimated length for oral
argument. Be sure to give an honest assessment—neither the court nor fellow
counsel will be pleased if a five minute
argument predictably morphs into a longer ordeal.
If opposing counsel does not appear, the
court will generally pass the matter and
request that the present party contact
opposing counsel to determine whether
someone will appear.
Effective Oral Argument
Techniques
When the matter is called, go up to one
of the counsel tables—plaintiff’s counsel
generally takes the table closest to the
jury box. Wait until the court is ready,
then introduce yourself by name, firm,
and party represented. Wait until the
judge is ready for argument, with the
moving party typically presenting argument first.
Do not assume that the judge has read the
various filings relevant to the argument.
Even if the judge has read everything, a
quick summary of key factual and procedural background might be useful in
complicated matters. Conversely, be prepared to move on to the heart of the legal
issues if the court so directs. If the court
indicates familiarity with the filings, do
not waste time rehashing the same arguments or (worse yet) reading from the
filings. Rather, focus on making any additional arguments crafted during prepara-
Connecticut Lawyer March 2015 21
tion for oral argument and responding to
any arguments by opposing counsel not
yet responded to in court filings. Once
all arguments are made, conclude the
argument—do not unnecessarily repeat
points.
Be prepared to answer questions as honestly and completely as possible as soon
as any are raised by the court. As noted
earlier, never tell the judge, “this is not
my file.” If confronted with the nightmare
scenario of being handed a file shortly
before court, consider asking opposing
counsel that the matter be passed or for
a continuance to prepare for argument.
If confronted with an unknown factual
or legal inquiry, answer as completely as
possible and consider asking the court
for permission to file a supplemental
memorandum addressing the specific
issue. Even if the particular inquiry is
addressed within a court filing, always
orally answer the judge and do not simply
refer to a particular filing.
Civility When Arguing before
the Court
Never interrupt or argue with the judge.
As soon as the judge starts talking, stop
talking. Listen carefully to the judge’s remarks to all parties and be prepared to
alter the planned argument substantially
based upon the key issues as identified by
the court. Always stand when presenting
oral argument and always sit down when
not addressing the court or being questioned.
Absent unusual circumstances, do not interrupt opposing counsel’s remarks. The
court will almost always afford the other
side a chance to respond to substantive
legal argument, so take detailed notes
and await the opportunity to respond.
Always remember to be courteous and
professional with everyone, from the
marshals to the clerks to the judge. Remember that everything said is on the record, even if not necessarily in front of a
microphone. Be mindful of body language
as well- do not roll eyes, loudly sigh, or
otherwise demonstrate displeasure.
Don’t put your hands in your pockets, and
keep the briefcase off the counsel table.
Remember to ask the court’s permission
to leave counsel table, and only do so for
a specific purpose.
Other Thoughts and Courtesies
Practice Book § 10-13 requires that all
electronically filed documents must be
served electronically on other parties
who consented to electronic delivery. According to the commentary to the amendment, “[t]his rule change is intended to
address the situation where a document
is electronically filed with the court, but
delivered by mail to the opposing party,
which may result in the opposing party
receiving the document much later than it
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Connecticut Lawyer March 2015
was received by the court.” Although not
strictly required by the rules, it is a courteous practice to serve filings relevant to
imminent short calendar matters on opposing counsel via fax when e-filing when
electronic delivery was not consented to
in order to avoid the problems described
in the commentary.
Many lawyers use smart phones and tablets while waiting for court to begin, and
some even use these devises when court
is in session. Considering the various legal research and case management apps
currently available, as well as mobileoptimized sites, it is entirely possible that
important work is being conducted on
the phone. Be mindful, however, that others in the courtroom might not appreciate the gesture.
When preparing for particularly hotly
contested arguments, call the clerk’s office to inquire which judge will hear argument on the particular matter. This
knowledge might help determine how
this judge has previously ruled in similar
matters or otherwise aid in preparation.
Pursuant to Practice Book § 11-19, judges “shall” decide short calendar matters
within 120 days from the date of submission, unless that requirement is waived
by the parties. (The “date of submission”
is either the date the court heard oral argument or the date the last brief ordered
by the court has been filed, whichever is
later.)
Conclusion
As noted in the introduction, there is no
better way to learn short calendar practice and procedure than to appear at
short calendar. When in short calendar,
always take the opportunity to observe
other lawyers and listen to other arguments. Sometimes this practice is quickly
rewarded, such as when an unrelated argument earlier in short calendar can be
relied upon in a later argument. More often, however, general observation of fellow counsel can serve as great examples
of what to do (and not do). Similarly, observing judges can be useful to identify
generally effective techniques and to specifically prepare for future appearances
in front of that judge. CL
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