Rethinking Motion Advocacy

Busy litigators love forms. We have templates for everything from initial appearances to final orders. But maybe all those forms are interfering with our ability to represent our clients, at least when it comes to motion advocacy.

Motion practice is an essential part of a trial lawyer’s practice. With the national decline of trials, an increasing amount of time in the courtroom is spent arguing and opposing motions.

Motion Practice is Formulaic

But most law firms have not adjusted their motion practice appropriately. Instead, we rely on the same forms we have used for years, passed down from senior partners. Their layouts haven’t changed since we learned “best practices” from professors in law school. We all know how it goes:

“NOW COMES the Plaintiff, JOHN DOE, by and through his attorney, LAW & FIRM, PLLC, and in support of his Motion With Title Immediately Above, hereby states:”

We then lay out even the most basic facts in our cases in numbered paragraphs. Sometimes we even cut and paste the information directly from our complaints. Somewhere on page 3 we finally get to the issue that brings us before the court on any given day.

But what if there was a better way? What if we could cut through all the preamble and get right to the point?

Clear Introductions Improve Motion Advocacy

Legal writing expert Brian Garner recently addressed this issue in “Make motions more powerful by writing openers that focus on ‘deep issues'” published in the ABA Journal. He says:

“A more effective opener involves stating the problem to be solved. After all, what is a motion? It’s a request to resolve a specific problem by entering a specific order.”

He endorses a format similar to those used in appellate practice, which lays out the issues, or questions presented under an Introduction heading at the start of the motion. For example:

Defendants’ Motion to Dismiss

This motion to dismiss presents the Court with two straightforward issues:

1. Qualified Immunity. Under state law, a law enforcement official loses qualified immunity only if there was “no arguable basis for probable cause to arrest.” Here, the crime-lab report conclusively determined that Bianca Trevino signed a forged high school grade-change request that is the basis of the complaint. Relying on that report, Officer Ballard issued an arrest warrant, and she has sued him for malicious prosecution and alleged Section 1983 violations. Is Ballard entitled to qualified immunity?

2. Vicarious Liability. Under state and federal law, municipal liability under Section 1983 requires proof of (1) a policymaker, (2) an official policy and (3) a violation of constitutional right whose moving force is that policy. Here, Trevino has alleged no such policy or policymaker. Given that she has now twice been granted leave to amend after the deadline for repleading passed, should this court dismiss her Section 1983 claims against the school district?”

Each issue is presented in 75 words or less, and provides clear direction to the court about the relief requested.

What About the Michigan Court Rules?

If you are wondering whether this form of motion would be acceptable in Michigan courts, you aren’t alone. After I read his article, I went back to the Michigan Court Rules to check my assumptions about the format of Michigan trial motions. MCR 2.113, on the form of pleadings and other documents says:

“(E) Paragraphs; Separate Statements.
(1) All allegations must be made in numbered paragraphs, and the paragraphs of a responsive pleading must be numbered to correspond to the numbers of the paragraphs being answered.
(2) The content of each paragraph must be limited as far as practicable to a single set of circumstances.
(3) Each statement of a claim for relief founded on a single transaction or occurrence or on separate transactions or occurrences, and each defense other than a denial, must be stated in a separately numbered count or defense.”

When it comes to motions specifically, MCR 2.119(A) says:

“(1) An application to the court for an order in a pending action must be by motion. Unless made during a hearing or trial, a motion must
(a) be in writing,
(b) state with particularity the grounds and authority on which it is based,
(c) state the relief or order sought, and
(d) be signed by the party or attorney as provided in MCR 2.114.”

There is nothing in the Michigan Court Rules that limits a lawyer’s ability to use an introductory section to frame the issues before stating the allegations in numbered paragraphs. In fact, Garner’s formatting could make it easier for lawyers to satisfy MCR 2.119. Each issue could state the relief sought, the authority, and a very brief summary of the facts supporting the request. Those factual allegations can then be restated in the body in numbered paragraphs to satisfy MCR 2.113 and give your opposition the ability to object or refute those allegations.

Michigan lawyers shouldn’t allow “the way it has always been done” to get in the way of strong motion advocacy. By clearly stating the issues of your motion up front you can focus the judge’s attention, and help the court make sense of an increasingly complex motion practice.

Lisa Schmidt is a writer for Legal Linguist. She provides legal research and writing services to law firms. If your law office needs help meeting its writing deadlines, contact the Legal Linguist today to schedule a meeting.

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  1. Pingback: When Emotion Can Get in the Way of Writing – Legal Linguist

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