How to write a motion.
Copyright © 2004 by Raymond P. Ward
Rule # 1
• Think about what you are trying to
accomplish.
– What advantage do you seek?
– What is your litigation strategy?
– How does the motion further your strategy?
– Draft a proposed order – whether or not the
rules require it.
Rule # 2
• Consult the substantive law that applies to
the motion.
For instance
•
•
•
•
Motion for default judgment: CCP 1701.
Motion to strike: CCP 964.
Special motion to strike: CCP 971.
Motion for judgment on pleadings: CCP
965.
• Motion for summary judgment: CCP 966
and 967.
For instance
• Motion to amend pleadings: CCP 1151.
• Motion to amend exception: CCP 1152.
• Motion to supplement pleadings: CCP
1155.
• Motion to consolidate for trial: CCP 1561.
• Motion to continue: CCP 1601-1605.
For instance
• Discovery motions:
– Protective order: CCP 1426.
– Motion to terminate deposition or limit examination:
CCP 1444.
– Motion to compel IME: CCP 1464.
– Motion to compel discovery: CCP 1469.
– Motion for sanctions for failing to attend deposition or
respond to discovery: CCP 1473.
– Motion for sanctions for disobeying court’s discovery
order: CCP 1471.
– Motion for expenses incurred due to failure to admit:
CCP 1472.
For instance
• Motion for judgment on offer of judgment: CCP
970.
• Motion in limine: See Code of Evid.
• Motion for JNOV: CCP 1811.
• Motion for remittitur or additur: CCP 1814.
• Motion for new trial: CCP 1971-1979.
• Motion for appeal: CCP 2121.
– Suspensive: CCP 2123.
– Devolutive: CCP 2087.
Rule # 3
• Do not rely on forms.
• “Consulting forms may be a good start. But
whether the forms are commercial or in-house,
they are only general guides. The facts will
always be different. Laws change; so do courts’
pleading requirements. And older pleadings are
typically written in stuffy legalese. Draft
pleadings in plain English, and tailor them to the
facts of your case, the specific claim, the current
state of the law, and the local rules.”
– Bryan A. Garner, The Redbook: A Manual on Legal
Style § 17.3(f) (West 2002).
• “Although some courts have fill-in-the-blank
motions for routine matters, many cut-and-paste
forms are time-wasters. If you do not take the
time to redraft the form to fit the particular facts of
your case, you may inadvertently leave in
irrelevant material. Besides wasting the court’s
time, a sloppy motion suggests that the writer is
sloppy in other ways as well (in analyzing legal
problems, in preserving clients’ rights, and so
on).”
– Id. § 18.3(c).
• “Standardized forms are most helpful as
formatting templates but should never be
used as fill-in-the-blank-pleadings. In other
words, do not follow an illustrative form
mindlessly; make certain that the form is
fully tailored to your facts…. Before you
begin to draft, check the local court rules to
see precisely what requirements apply.”
– Id. § 17.4(a).
Rule # 4
• Instead of wasting time with forms, consult
the Code of Civil Procedure (or Federal
Rules of Civil Procedure) and local court
rules governing the form of pleadings and
motions.
CCP provisions governing form
of pleadings:
• For content, consult the substantive law
governing the motion.
• CCP 852: defines pleadings.
• CCP 853: caption, adoption by reference.
• CCP 854: form of pleadings (more on that
in the next slide).
• CCP 924: form of exceptions.
• CCP 962: form of written motion.
CCP 854
• No technical forms of pleadings are
required.
• All factual allegations must be simple,
concise, and direct.
• Number the paragraphs, and limit each
paragraph to a single set of circumstances.
A motion must:
• Comply with CCP 853 and 863.
• State the grounds for the motion.
• If lengthy, must comply with CCP 854
(numbered paragraphs, each paragraph
confined to one set of circumstances).
• See CCP 962.
The caption must include:
• The name of the court.
• The title and number of the action.
– The title must state the name of the first party on each
side with an appropriate indication of other parties.
• The division or section to which the case has been
allotted.
• A designation of the pleading (e.g. dilatory
exception; motion for summary judgment).
– La. C.C.P. art. 853; La. D. Ct. R. 9.6.
The New Orleans style caption:
Civil District Court for the Parish of Orleans
State of Louisiana
No. 03-9999
Section 8
Fred Flintstone
versus
Barney Rubble
Motion to Compel Discovery
The style outside N.O. area:
Fred Flintstone
versus
No. 03-9999
Barney Rubble
99th Judicial District Court
Parish of Bedrock
State of Louisiana
Section 8
Motion to Compel Discovery
Other matters of form:
•
•
•
•
In La. state court, use legal-sized paper.
Double-space.
Margins: 2” at top; 1” on bottom and sides.
Number the paragraphs, and confine each
paragraph to a single set of circumstances.
– La. C.C.P. art. 854; La. D. Ct. R. 9.6.
Other matters of form:
• If it’s a contradictory motion, include a
proposed order setting the motion for
hearing.
• If it’s an ex parte motion, include a
proposed order granting the relief you seek.
– La. D. Ct. R. 9.8.
Rule # 5
• To find out whether you need a supporting
memo, check La. D. Ct. R. 9.9.
Rule # 6
• Do not begin with “Now into court ….”
– or “Now comes …” or “Comes now …” or any
variant.
Why not “Now into court …”?
• It violates CCP 854, which says:
– Use simple, concise, and direct language.
Why not “Now into court …”?
• It violates CCP 854, which says:
– Use simple, concise, and direct language.
• More than 80% of judges prefer a shorter,
more direct opener.
– Bryan A. Garner, A Dictionary of Modern
Legal Usage 173 (2nd ed., Oxford Univ. Press
1995).
Why not “Now into court …”?
• Most judges think that lawyers who use legalese
have less prestige, are less smart, and are ranked
academically lower.
• Conversely , most judges think that lawyers who
use plain language have more prestige, are
smarter, and are ranked academically higher.
– Source: Bryan A. Garner, The Winning Brief 146
(1999).
• How do you want the judge to perceive you?
Three kinds of words:
• Working words.
– carry the meaning of the sentence.
– without working words, you can’t say anything.
• Glue words.
– hold the working words together to form a proper,
grammatical sentence.
– without glue words, you sound like Tonto or Tarzan.
• Nothing words, or filler words.
– just take up space.
– serve no useful purpose.
• When you write an exception or a motion,
omit nothing words.
A typical opener:
• Now into court, through undersigned
counsel, comes defendant, XYZ Corp., who
moves this Honorable Court to render
summary judgment ….
Nothing words erased:
• Now into court, through undersigned
counsel, comes defendant, XYZ Corp. ,
who moves this Honorable Court to render
summary judgment ….
Shorter, more concise opener:
• Defendant XYZ Corp. moves the Court to
render summary judgment ….
Rule # 7
• Get to the point.
Rule # 7
• Get to the point.
• Within the first 90 seconds of reading, you
must tell the judge:
– what you want
– why you’re entitled to it
Rule # 7
• Get to the point.
• Within the first 90 seconds of reading, you
must tell the judge:
– what you want
– why you’re entitled to it
• Save the details for later.
• Omit unnecessary details.
For example:
• Defendant Spacely Sprockets moves the Court to
render summary judgment dismissing the tort
claims against it. Spacely was sued because its
employee, George Jetson, caused an accident
while driving his flying car. Spacely cannot be
liable unless Jetson was in the course and scope of
his employment when the accident occurred. But
the depositions and affidavits establish that Jetson
was not in the course and scope of his
employment when the accident occurred – in fact
he was on vacation.
Rule # 8
• Cite the law that authorizes the court to
issue the order that you are requesting.
Rule # 9
• Don’t forget to sign.
CCP 863.
• Every pleading must be signed.
• Your signature constitutes your certification that:
– You have read the pleading.
– To the best of your knowledge, it is well grounded in
fact.
– It is warranted by existing law, or good-faith argument
for change in the law.
– It is not being made for an improper purpose such as to
harass, cause unnecessary delay, or needlessly increase
the cost of litigation.
CCP 863.
• If you don’t sign, your pleading will be
stricken unless you sign it promptly after
warning.
• If you violate CCP 863, you can be
sanctioned, disciplined, or both.
Signature block.
• Must appear beneath your signature.
• Must include:
–
–
–
–
–
Your name and bar number,
Mailing address,
Street address (if different from mailing address),
Your phone number, and
Your fax number.
• La. D. Ct. R. 9.7.
Rule # 10
• Have the motion served on opposing
counsel.
How to serve.
• A pleading that sets a court date must be
served by:
– registered or certified mail (CCP 1313 C), or
– the sheriff (CCP 1314).
• Put the service instructions at the end of the
order setting the hearing.
How to serve.
• Any other pleading may be served by:
– mail
– hand delivery
– fax (CCP 1313 A).
• If time is short, expedite service.
– See Golden Rule.
• Include a certificate of service.
– required by CCP 1313 B.
Please visit these web sites
• www.adamsandreese.com
– Don’s and my law firm.
• http://raymondpward.typepad.com
– My blog.
• http://home.earthlink.net/~thelegalwriter
– Legal-writing resources.