Motion Practice
Motion Tips for the New(er)
Attorney in the form of Simple Life
Lessons
Presented by: Leah Sills, Legal Aid of WV
Prepared by: Dianna Parker, Legal Aid Society
of Columbus
(Always have a) PLAN.
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Motion Practice Generally
Types of Motions
Practical Tips for the new(er) attorney in the
form of simple Life Lessons
Arguing Motions
Questions?
Simulation
Motion Practice Generally
Used to regulate routine “housekeeping”
matters, but they can also kill or win your
case and can have a HUGE impact on what
evidence you get to use, strategy, etc.
DO NOT underestimate the importance of motions!
Motion Practice Generally
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A motion is an application to the court for an
order or a decision. Motion practice includes
both:
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technical requirements – format, length, service,
timing
substantive requirements – organization,
construction, legal argument and evidence
Motion Practice Generally
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Under FRCP 7(b), there are 3 requirements
for filing a motion. The motion should:
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Be in writing
“State with particularity the grounds therefor”
State the relief or order requested
State rules 7(b) are usually very similar to the
FRCP, but you MUST read your state and local
rules to be sure.
Motion Practice Generally
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Filing motions shows the other side that you
are serious and can help you determine how
“serious” they are.
Motions let you take control of the case and
frame the issues from your perspective.
Motions can focus the litigation and give you
an opportunity to resolve some issues and
creatively address others.
Types of Motions - Pretrial
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Extensions of time and continuances
Amending pleadings
Substitution of parties
Rule 12 motions
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12(B) – personal or SM jurisdiction, venue,
process, failure to state claim, join party, dismiss
Judgment on pleadings
Definite statement
Motion to Strike (watch out for this)
Types of Motions - Pretrial
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Motions for temporary relief (eg, child
support)
Protective orders and motions for rule 11
sanctions
Discovery motions
Summary judgment
Motions in limine
Various other motions, procedural or
otherwise, that advance your case and/or
resolve issues
Types of Motions - Pretrial
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Motions for immediate relief:
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TROs and preliminary injunction
Ex parte requests
Seizures or return of property
Emergency motions
Be careful with these, and be prepared to
spend a LOT of time waiting around at the
courthouse for your emergency to be heard.
Types of Motions – Trial and
Post Trial
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Directed verdict
JNOV – notwithstanding the verdict
Conform pleadings to evidence
Request for findings of fact and conclusions
of law
New trial
Reconsideration
Stay of execution/judgment pending appeal
Litigation (and life) Lessons
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Go Local.
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The state and federal rules of civil procedure
govern some things, but local rules often add
additional limitations, requirements, etc. Read
them.
It’s not cheating to “Copy.”
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Check your office’s brief/motion bank. Someone
else has most likely done one of these before.
You should not be spending time reinventing the
wheel!
Litigation (and life) Lessons
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Play by the Rules…
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They may contain standard forms for pleadings,
motions, etc. Read them, and check any office
template or example you find against them.
Especially Rule 11
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You are making a certification when you sign your
pleadings/motion. Check with your client before
filing!
Litigation (and life) Lessons
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Be creative...
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Sometimes you might need to make up a “new”
motion because you want the court to do
something and you can’t find a template or
example in the rules or your office’s motion bank
But not stupid.
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Please talk to your supervising attorney before
you do this, but also don’t assume that just
because no one else in your office has done it, it
is undoable.
Litigation (and life) Lessons
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Just because you can, doesn’t mean you
should.
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Pay attention to the number of motions you are
filing.
Often you can combine several motions into one
document/one filing batch/one hearing.
Alternatively, you can resolve motions by agreed
order with opposing counsel before the hearing.
This will irritate the judge less, which should
always be one of your goals.
What Not To Do
Washington v. Alaimo, 934 F. Supp. 1395, 1396 (S.D.
Ga. 1996)
 “On April 5, 1996, this Court ordered Plaintiff to
show cause why this Court should not impose Rule
11 sanctions upon him for filing a motion for
improper purposes. The motion which Plaintiff filed
was entitled ‘Motion to Kiss My Ass’ (Doc. 107) in
which he moved ‘all Americans at large and one
corrupt Judge Smith [to] kiss my got [sic] damn ass
sorry mother fucker you.’”
Litigation (and life) Lessons
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Do your homework.
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Ask your colleagues in your office about the judge
to whom your case has been assigned. Who the
judge is might change/alter your strategy in filing
and arguing motions and responding to the other
side’s motions.
Play nice.
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Be friendly to the court staff – docket clerks, file
room clerks, sheriff’s deputies, etc. Your life will
be more pleasant if they like you.
Litigation (and life) Lessons
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Turn it in on time.
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Pre-trial or scheduling orders may contain strict
deadlines about filing motions. Put them in your
calendar and find a way to set reminders for
yourself. Try to start working on your motion
before the day it’s due.
Help out when you can.
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Include with your motion a proposed order for the
judge to sign, if appropriate. If you don’t, arrive at
court early and begin filling out the order form.
ALWAYS volunteer to be the attorney who writes
up the order!
Arguing Motions
Arguing Motions
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Always be prepared.
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Know the law. Read the cases you cited in your
motion and the cases the other side cited in her
reply. Outline, practice, whatever works for you.
Show your work.
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Make a cheat sheet of your main points AND the
other side’s main points, including statute/case
citations and citations to evidence that relate.
Arguing Motions
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Share your work.
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Bring a copy of the statute(s) and cases with you
to court (+ one for the judge).
Think about tabbing/highlighting main points so
you can find them quickly if the judge asks.
Draw (or paint) a picture.
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Do not assume the judge remembers previous
hearings, read your motion or the pleadings, or
knows the facts of the case. Set the scene.
Arguing Motions
 Never let them see you cry…
 …or shout, wince, roll your eyes, laugh, slam the
table. Even if the other side is yelling, saying
something completely absurd, etc., keep your cool.
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Don’t rub it in.
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When the judge agrees with you, stop talking.
Remember to listen.
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Listen to the judge’s comments and questions.
Respond to them.
When preparing for a reply: while the other side is
talking, take notes and mentally organize your reply.
Arguing Motions
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Take a Deep Breath.
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Remember your Manners.
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To the extent possible, look at the judge, not your opposing counsel.
Request permission before speaking – may it please the court, may I
reply, etc.
Take Charge (in your reply).
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Do not be afraid to ask the judge for a moment to collect your
thoughts/notes for the reply.
Create your own organizational structure when replying.
Repeating or mirroring your opponent’s structure only serves to
legitimize his/her argument.
Be brief (on your rebuttal).
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Keep your reply, refutation, rebuttal (whatever you call it) brief and to the
point.
No need to repeat your previous points unless you want to emphasize
them.
Arguing Motions
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Know your surroundings.
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Watch the judge’s visual cues. Often he will
visually let you know when he’s made a decision
or heard enough.
You get what you ask for.
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Even if it is one sentence, end with a concluding
statement asking the judge for the particular relief,
order, or action you are seeking.
Questions?
Leah Sills
Supervising Attorney
Legal Aid of West Virginia
(304) 645-3131, ext. 2614
lsills@lawv.net
Thank you!