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How to Write a Kick-Ass Motion

by C. Walker Harper

on 03 May, 2019

13 Tips for Leveraging Your Motion Effectively

A legal motion is an all-purpose procedural device with which trial attorneys should be intimately acquainted. Submitting a motion enables you to approach the court directly and ask it to do something specific. It’s also a great opportunity to tell your story while educating the judge on the facts of the case and the law pertaining to it.

Although regulated by the rules of each jurisdiction, motions are wonderfully flexible; they can be filed at any stage of a criminal, civil or even an administrative proceeding, and can request almost anything imaginable.

Put simply, motions are extremely important weapons in a trial lawyer’s arsenal. Used timely and correctly, they can be the difference between winning and losing a case.

Unfortunately, almost all new attorneys—and even some experienced ones—fail to use this all-purpose tool to its full potential.

Here are a few tips to consider the next time you sit down to write a motion. No attorney wins every single time, but following these tips will improve your odds of winning the next case and, more importantly, pleasing your clients more.

 


1. Make an Outline

You wouldn’t start constructing a building without a plan, and neither should you begin to write a motion without outlining what you want to say first. A detailed outline is a great way to focus your argument and improve its presentation.

When outlining a motion, I ask two important questions: what do I want to prove, and what do I want the judge to do? If you can answer those questions clearly, you’re half-way home already.

Some modern case management solutions even allow for processes like these to be standardized as button-triggered workflows. With that kind of automation in place, attorneys can streamline their writing processes and focus on quality.

2. Keep Your Motion Simple

Motions should be simple. There’s no need to channel your “inner-Jefferson” here. You’re trying to write a motion, not declare national independence.

Judges are usually highly-intelligent and well-read, and they’ve heard hundreds if not thousands of legal arguments. Don’t waste their time with highfalutin phrases and five-dollar words—it won’t impress.

Don’t go overboard with extreme or frivolous claims, either. Judges are busy people and are not noted for their patience or their sense of humor. Keep your arguments simple and straight-forward so that the judge doesn’t have to struggle for understanding while reading your motion.

3. Maintain Credibility

It’s crucial that you come across as credible. Credibility once lost is difficult to recover. You will develop and maintain professional credibility by accurately stating and representing case law; failure to do so will sink you faster than anything else.

Judges read the opposing attorney’s filings as well and will be sure to contrast your presentation and arguments with the opposition’s. So whenever you set out to write a motion, make sure it could only improve your credibility before you submit it.

To this end, the importance of maintaining an organized and accessible caseload can’t be overstated. Always check the details of your motion against the facts and development of the involved case. Cloud-writing tools like Filevine’s Edit-in-Place feature are great for applying needed edits to a previously uploaded motion.

4. Mind Your Citations

You will be citing holdings or statutes buttressing your position. It’s best if the holdings and statutes come from the jurisdiction in which you’re trying the case. It’s even better if you can cite one or more of your judge’s own decisions in support of your motion. In this instance, subtle flattery is appropriate.

Make certain your citations are up-to-date and not overruled or reversed. Careless citations tell the judge that you didn’t take the time to verify your sources. Relying on incorrect or outdated case law is a quick way to your motion being rejected.

I’ve seen this happen when a local magistrate asked an attorney if he was “aware that the ordinance in question” was no longer in effect—an embarrassing experience that could have been avoided with a thorough search of the statute.

Watch out for decisions that have been criticized by a higher court. And don’t avoid holdings contrary to your position. Look for reasons why their different from what you are asking and explain the differences. Judges aren’t infallible and most will respect a well-reasoned argument, even if it’s contrary to one of their earlier rulings.

Be judicious when bolding and italicizing citations.

When formatting citations in your motion, follow the Blue Book. However, be aware if your jurisdiction has any specific rules of citation that take precedence over the Blue Book. Once you know your court’s preferred citation format, be consistent with it whenever you write a motion.

5. Focus on Facts

Although Joe Friday of Dragnet fame never said, “Just the facts,” your motion will live and die by facts. Never overstate, stretch or omit relevant facts. And remember, not every fact is relevant, so don’t clutter up your motion with the entire case history. If it’s not relevant to your motion, leave it out.

Use signed declarations or affidavits and reference any attached exhibits like contracts, photos and so forth to support facts when appropriate.

You can also ask the court to take “judicial notice” of something that supports your motion. This can include weather conditions, time of day, a full moon, anything at all.

And again, the right case management software can help. You should have unfettered access to any facts or details that will support your motion, even as you’re actively defending that motion in court. A cloud-based case management solution will secure access to the information you need, wherever you are. Even the most experienced lawyers might overlook a seemingly non-important fact, but those overlooked details could prove to the backbone of your case.

I saw a great example of this in West Virginia. A land-owner sued an oil company claiming that since a certain natural gas well was not in operation, the lease should revert to him. The oil company videoed the well in operation and asked the judge to note the “plaintiff’s illegal supply-line” delivering gas from the well to his trailer. The judge dismissed the case with a stern lecture to the plaintiff.

6. Keep Your Intro Short

This is your opportunity to set the scene and tell what the case is about, what you want the judge to do and why it should be done.

Judges handle a lot of cases and may not even know anything about your case, so, come out strong to grab their attention. Include the facts, the parties involved, your request and why it should be granted.

Length is important. While I’ve seen introductions that went on for several pages, I suggest you try to keep the intro down to a half-page. I’ve never met a judge who didn’t appreciate brevity.

I actually have seen judges frown and grumble under their breath when flipping through a long introduction, though. The last thing you want your motion to do is irritate the judge.

7. Respect the Opposition

Never insult or condescend the opposing party or their counsel. Backing your argument up with evidence and facts is all you need to do to win the day.

Always be professional and magnanimous, even when the other side’s argument is ridiculous. You didn’t write a motion just to throw a few jabs at the opposition, did you?

8. Write in English, Not Legalese

Almost all non-lawyers think legal documents must include fancy-phrasing. Unfortunately, too many attorneys seem eager to oblige. There is no need to clutter your motion with archaic words and phrases.

I recently received a complaint starting with “COMES NOW….” It sounds very formal and official—and a bit pretentious—but unless your court requires it, don’t write it. Keep your emotions in plain English, they are much easier to understand for everyone involved.

Additionally, avoid using phrases like “subsequent to,” and “prior to.” Just write “before” and “after.” My pet peeve is “attached herewith.” Just say “attached.” The judge will understand.

I recommend avoiding colloquialisms or adages. Phrases like “pulling-the-wool-over the court’s eyes” and “plaintiff is attempting to have-their-cake-and-eat-it too,” often come across as insulting or condescending.

Skip the slang. Unless it is a direct quote, never use “ain’t” or other similar terms. You’re a trained attorney. Be professional.

9. Tone Down Hyperbole

Arrogance in front of the bench is never good. Refrain from terms that might insult the judge’s intelligence or the opposition’s argument.

Keep out of your motion words like, “Clearly,” “notably,” “worth-noting-that,” “interestingly” and “surprisingly.”

“It-goes-without-saying,” is my favorite because a federal judge once corrected me, writing, “Then why say it?”

10. Manage Sentence Length

Short sentences are easy to follow. Too many commas can turn a simple sentence into an onerous slog. You’re an attorney drafting a motion, not Dostoyevsky writing the Brothers Karamazov with its 9-page paragraphs.

11. Use Descriptive Headings

Busy judges like clear and descriptive headings. They can break your argument into bite-size pieces enabling the judge’s focus on particular points with ease.

Headings should be short, one or two lines at the most. If a heading goes to three lines, it’s a paragraph. Re-write it!

12. Explain Cryptic Acronyms

Be careful when including these in your motion. Some like the “FBI” and “SEC” do not need to be explained. Others do. If you feel the need to explain, write out one time what the acronym stands for and then include the acronym in parentheses. For example, the Fair-Debt-Collection-Practices-Act (“FDCPA”).

13. Edit & Proofread Your Motion

Chief Justice Warren Burger once told me, “There is no such thing as good writing, just good re-writing.” No matter how experienced you are, always edit and proofread your motions before filing. It shows respect for the court.

Be serious; don’t just do a cursory read-through. Judges will overlook some things, but typos, poor grammar, and run-on sentences stand out and make you look bad.

I strongly suggest that you have someone read your motion who hasn’t been involved with drafting it. Familiarity breeds passivity and fresh-eyes often spot overlooked typos and punctuation errors. Further, consider building out a step-by-step proof-reading process that each motion can go through it is approved for submission to the court. This process can include team-wide collaboration or specific role-assignments.


 

A timely, organized, and well-written motion can win the day for you. Even if it doesn’t, the court will still see you as an attorney who is respectful, thorough and professional. This can become a real advantage the next time you seek to file a motion.

Writing a truly Kick-Ass Motion takes time and effort. But like anything else, practice makes perfect.

And once you master the art of writing motions, be sure to check out the other entries in Filevine’s Kick-Ass Writing series.