How to Write a Motion for Court

If an attorney conducts any form of civil or criminal litigation in U.S. courts, they will be dealing with motions filed in court. While arguing the motions before the judge may be more dramatic and made-for-TV, the actual writing of the motions is likely more important. This means that the ability to write a motion for court is central to a litigator’s potential for professional success–especially for mid-sized or smaller firms without the vast resources of Big Law.

Here we explore the essential aspects of writing court motions, including research, analysis, drafting, and filing. We also touch on how technology can be leveraged to help create effective motions with less time and aggravation.

Understanding court motions 

A court motion is filed when one party to a litigation matter wants the judge to take a specific action in the case. More specifically, a motion is a formal request for a desired ruling, order, or judgment, with the party making the motion known as the “movant.” The court will generally consider the written motion, along with the other party’s opposition papers and possibly the movant’s reply papers, before hearing oral argument on the motion and making a final decision.

There are numerous types of motions for all the different actions a party might seek from the court. A motion to dismiss can seek to have a case dismissed at the pleading stage, while a motion for summary judgment can seek the same outcome after discovery has been conducted. The plaintiff can file a motion for entry of default judgment if the defendant fails to respond to their complaint. As the trial approaches, both parties will likely file motions in limine prior to trial to exclude certain types of evidence or arguments at trial. 

The types of motions a typical attorney deals with will vary widely with differing types of cases, factual scenarios, and the conduct of opposing counsel. Any attorney that wants consistent success will likely be filing numerous motions to seek the upper hand in their cases, if not outright victory.

Preparing your motion 

Preparing the motion will first require legal research to find the basis for the action you are seeking from the court. Many times, this research can be the general legal basis for elementary points of law, which can be reused for similar types of motions. Nonetheless, you will still need to find the latest and strongest cases to support your argument, and many novel applications of law and facts will require additional research.

Motion preparation will also generally require you to gather factual evidence supporting the motion. This evidence may be in the form of information gathered during discovery, such as written discovery responses or deposition testimony. It may also come in other forms, such as evidence of the opposing counsel’s discovery misconduct which requires you to file a motion to compel or other discovery-related motion. Affidavits or declarations from your client or other witnesses may also be necessary.

The motion must be structured effectively, which requires understanding the legal motion format for the jurisdiction where your case is filed. Then you may consider the arguments you will make and the legal points you will need to cover.

Writing your motion 

The main essential of any legal motion is making a persuasive argument to the court. This generally means making the argument as simple and straightforward as possible, as a convoluted argument will be less persuasive and more confusing. If possible, bounce your arguments off your colleagues or even friendly peers or mentors outside the firm (while maintaining client confidentiality, of course).

The language of the motion should be clear and concise. This means avoiding extreme claims or hyperbole while quickly getting to the meat of your arguments. There is a time for humor and poetic prose, and that time rarely comes when you are writing a motion. Your aim should be to make your argument compelling but not over the top.

Also, be sure to cite to the relevant cases and statutory law that support your arguments. Make sure your case citations are accurate. An inaccurate or misleading case citation is a huge hit to your credibility and could even amount to an ethical violation.

Key elements of a motion 

Start with an outline of your motion so that you can lay out your argument in a logical order. This can likely be as simple as the headings for your main sections. This will make it easier to fill in the substance of your arguments, because you can see how everything fits into the whole of the motion.

A compelling introduction is a hallmark of any effective motion. Seek to lay out a summary of your position, which should include (1) what your argument is and (2) what you want the court to do. The more concise and simple you can make the introduction, the more the reader—the judge or their clerk—will be responsive to the more detailed arguments coming in the body of the motion.

The heart of the motion will be facts, supporting evidence, and the legal basis for your argument. It may even be advisable to address any obvious arguments you believe the opposing party will make. While you do not want to give opposing counsel ideas for their opposition, it can be useful to show the judge you can anticipate the other side’s positions and present suitable counterarguments.

Review and editing 

You do not want to give the judge any reason to doubt the merits of your motion, and this includes any spelling or grammatical errors. Moreover, the entire motion should read well and flow logically from one point to the next. Accordingly, proofread carefully for errors and double-check clarity.

The review and editing process must also include formatting, which is essential for legal motions. We have already stressed the importance of legal citations, so we know it is important to go over these again in the review process. Make sure your citations are not only accurate but up-to-date. If there is any conflict in the law on your point, be sure to address this conflict instead of gliding over it. 

If you have the opportunity to seek outside feedback, be sure to do so. Another legal professional in your office can provide a fresh set of eyes that may catch any mistakes you have missed. 

Finalizing and filing your motion 

Prior to filing your motion, be sure to review court rules and requirements to ensure your motion is in full compliance. Ensure that service requirements are met as well, including proper service on all appropriate parties and any necessary certification that this has been completed. In most cases, you will need to submit a proposed order for the court to sign in the event your motion is successful.

Finalization also includes a review and attachment of all necessary supporting documents. Any exhibits must be clearly marked in the format mandated by the court and will require affidavits or declarations that identify them.

When it is time to submit your motion to the court, be sure it is delivered to the court in a timely manner. Electronic filing is becoming more common in U.S. state courts, with e-filing being the only form of filing in federal court. Use e-filing to your advantage, since you can save on messenger fees and be certain your motion is immediately accepted, usually with an electronic time stamp provided by the court.

Leveraging technology to create motions

We can see that a lot of time and effort goes into creating motions, and fine attention to detail is mandatory. Unfortunately, the fast pace of the modern-day legal industry means legal professionals can be overwhelmed by motion work, and the potential for errors and oversights is always there. This is where leveraging technology can ease the burden of motion work for a legal practice.

Document automation software can serve as the tech solution for a firm’s motion creation woes. This type of software can allow users to create templates for certain types of motions or associated documents, such as proposed orders, as well as input existing templates. The software can then input variable information, such as party names, case numbers, and other information required for case captions and elsewhere in the motion. By automating these administrative tasks, legal professionals have more time and mental space to make their motions compelling and persuasive.

Be sure to consider whether your firm would benefit more from a stand-alone document automation tool or one that is part of a legal practice management software solution. When your document automation is handled by your practice management software, your documents can be assembled and managed in a central location. In addition, you will save the time and frustration required by switching back and forth between different applications.

Legal document management software such as Clio Manage can simplify the motion creation process by allowing collaboration, remote access, and easy file searches. When utilizing the Clio Manage integration with Clio Draft, you can unlock even more benefits, such as templates, auto-population of fields, and electronic signatures.

Motions are an essential part of litigation, which means your practice cannot afford shoddiness in this area. Follow the principles laid out above and implement the right tech solutions to make your firm’s motion work top-notch.

We published this blog post in February 2024. Last updated: April 8, 2024.

Categorized in: Business