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Writing on Writing Column: How to Triage a Bad Motion

Mon, 04/27/2015 - 13:40 -- jsmith

by Scott P. Stolley

Your associate emails you a draft motion due today. Based on a quick review, you panic because the draft is unfit for filing. You know it will be dead on arrival.

What can you do to fix the draft in the short time available? Here are 10 tips for triaging the motion.

1. Get the title right. You want the judge to know instantly what kind of motion it is. Don’t use a bulky title like “Defendants Stonehenge Corporation’s, Stonehenge LLC’s, and Stonehenge Realty Advisors, Inc.’s Motion for Summary Judgment, Response to Plaintiff’s Motion for Summary Judgment, Objections to Plaintiff’s Summary-Judgment Evidence, and Motion for Sanctions.”

Instead, file a motion that does one job, and call it “Stonehenge Defendants’ Motion for Summary Judgment” and put the summary-judgment response and objections into a separate document. Finally, save the sanctions motion for another day.

Alternatively, if you must file a combined document, title it so that the parts are obvious, like this: “Stonehenge Defendants’: (1) Motion for Summary Judgment; (2) Response to Plaintiff’s Motion for Summary Judgment; (3) Objections to Plaintiff’s Summary-Judgment Evidence; and (4) Motion for Sanctions.” The judge will thus be warned that the document contains four parts. Make sure to include clear captions in the text of the motion to identify the four parts.

2. Start with the issue. Issue statements are not reserved solely for appellate briefs. So do not make the trial judge ferret out the issue in your motion. Put the buried issue in the motion up front.

You can make the issue a simple and informative declaration like: “The Stonehenge Defendants request summary judgment because the Plaintiff filed this fraud suit more than four years after he had actual or constructive knowledge of the alleged fraud.” You can also phrase the issue in the form of a question.

Another option: Start with a one paragraph executive summary of the motion. Give the court the question and the answer in the summary.

3. Cut the formulaic opener. Most motions still start with a formulaic opener, such as: “To the Honorable Court: Come Now Defendants Stonehenge Corporation, Stonehenge LLC, and Stonehenge Realty Advisors, Inc. and file this, their Motion for Summary Judgment, Response to Plaintiff’s Motion for Summary Judgment, Objections to Plaintiff’s Summary-Judgment Evidence, and Motion for Sanctions, and for grounds would respectfully show the Court as follows:”

Fluffy openers like this are obstacles to reader comprehension. Delete the opener, and let your title and your issue statement tell the court what the motion is about.

4. Tighten the prose. Lawyers tend to be verbose. So look for words, or even sentences, to delete. When triaging, it is faster to delete than to add. In the limited time you have, focus on shortening.

5. Abridge the facts. Fact statements are usually laden with useless facts. Be ruthless about cutting them. Give the court only the facts it needs to know to decide your motion. For example, lawyers habitually include dates for every event and filing in the case. Delete the dates and events that the judge does not need to know.

6. Cut footnotes. Too many lawyers love footnotes. They want to show that they have explored every rabbit trail. But the goal is to persuade, not to show off. Footnotes are often distracting and divert the court from the issues. Cut every footnote that is not essential to your argument.

7. Cite fewer cases. Many lawyers, especially young lawyers, are fond of string citing cases. This is another distraction. It slows down, and likely annoys, the judge. Be confident enough to cite just a few cases for your legal points.

8. Eliminate the jargon. When lawyers live with a case, the case’s particular jargon seeps into their skin. But since the jargon may confuse the judge, replace it with plain English. While you are at it, take out confusing acronyms too. Do not make the judge remember multiple acronyms.

9. Simplify the party names. For individual parties, it is better to use their actual names, rather than labels like “Plaintiff” or “Respondents.” For entity parties, use shortened names that are easy to follow. And again, avoid confusing acronyms.

Also, don’t define parties who need no defining. If there is only one John Hancock in the case, there is no need to describe him as “John Hancock (‘Hancock’).”

10. Get the prayer right. If the draft motion needs a lot of work, it is likely that the prayer reflects the poor thinking that went into the motion. Make sure your prayer accurately and succinctly states the relief you are seeking. Write it the way you want the judge’s order to read.

If you can triage the draft motion using these 10 steps, your time will be well spent. The motion will likely be much better. It might actually have a pulse upon arrival, with no need for heroic measures to save it at the hearing.

Scott P. Stolley is a partner with Thompson & Knight LLP and can be reached at

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