Motions are formal requests asking a court to take a specific action. They drive litigation forward at every stage, from pretrial through post-trial, and the ability to draft, support, and respond to them is a core legal writing skill. This guide covers the main types of motions, their required elements, supporting documents, and the strategic and ethical considerations that go into effective motion practice.
Types of motions
Motions can be categorized by their purpose, timing, and potential impact on a case. Knowing which category a motion falls into helps you understand what's at stake and how to approach drafting or responding.
Dispositive vs non-dispositive motions
Dispositive motions seek to resolve all or part of a case without a full trial. These include motions to dismiss and motions for summary judgment. If granted, they can end the litigation entirely.
Non-dispositive motions address procedural or interim issues, like discovery disputes or requests for extensions of time. They don't directly terminate the case, but they shape how the case proceeds.
Pretrial vs trial motions
Pretrial motions are filed before trial begins and aim to set the terms of the proceedings:
- Motions in limine ask the court to exclude (or admit) certain evidence before trial
- Motions to compel discovery force a party to produce documents or answer questions
Trial motions arise during trial itself and address immediate issues:
- Motions for directed verdict (now called motions for judgment as a matter of law under FRCP Rule 50) ask the judge to rule in one party's favor because no reasonable jury could find otherwise
- Objections to evidence or testimony
Post-trial motions
These are filed after the trial concludes to challenge the outcome or seek specific relief:
- Motion for a new trial requests a retrial based on errors during the proceeding or newly discovered evidence
- Motion for judgment as a matter of law (renewed) (formerly "judgment notwithstanding the verdict" or JNOV) asks the judge to overturn the jury's decision
- Motion to alter or amend the judgment seeks modifications to the court's final decision
Elements of a motion
Every motion follows a structured format. Each component serves a distinct purpose, and missing or poorly executed elements can undermine even a strong legal argument.
Caption and title
The caption identifies the case: it includes the case name, court, and docket number. The title states what the motion is and what relief it seeks (e.g., "Defendant's Motion to Dismiss for Failure to State a Claim"). Always check local court rules for specific formatting requirements.
Statement of facts
This section presents the relevant background information, typically in chronological order. It should support your arguments with factual context and cite to evidence, affidavits, or other supporting documents. Keep it focused on facts that matter to the motion rather than retelling the entire case history.
Legal argument
This is the core of the motion. You outline the legal basis for the relief you're requesting, cite relevant statutes and case law, and apply the law to the facts. Structure this section so the court can follow your reasoning step by step.
Proposed order
A proposed order is a draft document for the judge to sign if the motion is granted. It clearly states the specific relief requested and follows the court's preferred format. Not all jurisdictions require one, but many do, and including one shows the court exactly what you're asking for.
Supporting documents
Supporting documents provide the evidentiary and analytical foundation for your motion. Without them, the motion is just argument without proof.
Memorandum of law
The memorandum (sometimes called a "brief in support") contains the detailed legal analysis backing the motion. It cites statutes, case law, and legal principles, then explains how they apply to your specific facts. In some courts, the legal argument is contained entirely within the memorandum rather than in the motion itself.
Affidavits and declarations
These are sworn statements providing factual support. They can come from parties, witnesses, or experts with relevant knowledge. Affidavits are notarized; declarations are made under penalty of perjury (under 28 U.S.C. § 1746) and don't require a notary. Both must comply with evidentiary requirements for admissibility.
Exhibits and attachments
Exhibits are the documentary evidence supporting your arguments: contracts, correspondence, photographs, medical records, or other relevant materials. Each exhibit should be properly labeled (Exhibit A, Exhibit B, etc.) and specifically referenced in the motion or memorandum so the court knows why it's there.
Drafting effective motions
Strong motion drafting combines legal knowledge with disciplined writing. A well-crafted motion makes it easy for the judge to understand your position and rule in your favor.
Clear and concise language
Use plain language to explain complex legal concepts. Avoid unnecessary jargon, and favor active voice and strong verbs. If a sentence requires rereading to understand, rewrite it. Judges handle heavy caseloads, and clarity is a form of respect for the court's time.
Logical organization
Structure your arguments so they build on each other. Use headings and subheadings to guide the reader. Each paragraph should flow logically to the next, and each section should have a clear purpose. A disorganized motion signals a disorganized argument.
Persuasive argumentation
Anticipate the opposing party's counterarguments and address them directly. This shows the court you've considered the full picture. Balance logical reasoning with the equities of the situation, but don't overreach with emotional appeals that lack legal grounding.
Procedural requirements
Procedural compliance isn't optional. A motion that fails to meet filing requirements can be rejected or dismissed regardless of its merits.
Filing deadlines
Deadlines vary by motion type and jurisdiction. They're often calculated from specific triggering events (the trial date, service of the complaint, etc.). Account for weekends, holidays, and court closures when computing deadlines. Under the Federal Rules, Rule 6 governs time computation.
Service of process
All parties must receive proper notice of the motion. Service methods may include electronic service (increasingly the default), mail, or personal delivery. You must file proof of service with the court, typically as a certificate of service attached to the motion.
Local court rules
Individual courts and jurisdictions set their own requirements for formatting, page limits, font size, margin widths, and filing procedures. Always check the local rules before filing. Getting sanctioned or having a motion rejected for a formatting violation is entirely avoidable.
Responding to motions
When you're on the receiving end of a motion, your response needs to do more than just disagree. It should systematically address the moving party's arguments while presenting your own counter-narrative.
Opposition briefs
The opposition brief directly challenges the arguments in the original motion. It presents counterarguments supported by evidence and may include affidavits or exhibits to refute the moving party's claims. This is your primary opportunity to persuade the court that the motion should be denied.
Reply briefs
The moving party files a reply brief to respond to the opposition. Replies should be limited in scope to issues raised in the opposition. Introducing entirely new arguments in a reply is generally improper and may be stricken by the court.
Sur-reply briefs
A sur-reply is an additional response filed only with court permission. It addresses new issues or arguments raised for the first time in the reply brief. Courts grant these sparingly to prevent endless rounds of briefing.
Oral arguments
Not every motion gets oral argument, but when the court grants it, you have a direct opportunity to advocate for your position and respond to the judge's concerns in real time.
Preparation techniques
- Review all relevant documents: the motion, opposition, reply, and key authorities
- Anticipate the judge's likely questions, especially on weak points in your argument
- Prepare concise answers to the strongest counterarguments
Presentation skills
Maintain professional courtroom demeanor. Speak clearly and at a measured pace. Use visual aids or demonstrative exhibits when they genuinely help explain a point, but don't rely on them as a crutch.
Responding to questions
Listen carefully to the judge's questions and answer them directly before returning to your prepared argument. Treat questions as signals about what concerns the court. A question is an opportunity to address the judge's specific doubts, not an interruption to push past.
Motion practice strategy
Filing a motion is a strategic decision, not just a legal one. Every motion costs time and money, and not every viable motion is worth filing.
Timing considerations
Consider what stage of litigation you're in and whether the motion makes sense now or later. Filing a summary judgment motion too early (before discovery is complete) can result in denial. Filing a motion in limine too late may waive the issue.
Cost-benefit analysis
Weigh the potential benefit against the cost of preparation. Consider the likelihood of success based on the legal merits and the tendencies of the assigned judge. A motion that's legally sound but unlikely to succeed before a particular judge may not be worth the resources.
Alternative dispute resolution
Before filing certain motions, consider whether the issue could be resolved through a meet-and-confer, negotiation, or mediation. Courts increasingly require parties to attempt informal resolution of discovery disputes before filing motions to compel. Motion practice can also affect settlement dynamics, for better or worse.
Common types of motions
Certain motions appear repeatedly across practice areas. Understanding their specific requirements helps you draft and respond to them effectively.
Motion to dismiss
A motion to dismiss challenges the legal sufficiency of the complaint. Under Federal Rule of Civil Procedure 12(b), it argues that even if all the plaintiff's allegations are taken as true, the case should be dismissed. Common grounds include lack of subject matter jurisdiction (12(b)(1)), lack of personal jurisdiction (12(b)(2)), and failure to state a claim upon which relief can be granted (12(b)(6)).
Motion for summary judgment
Under FRCP Rule 56, a motion for summary judgment argues that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. It requires submission of evidence through affidavits, declarations, or exhibits. Either party can file one, and it can target the entire case or specific claims or defenses.
Motion in limine
A motion in limine requests that the court rule on the admissibility of certain evidence before trial begins. The goal is typically to prevent prejudicial or inadmissible evidence from reaching the jury, though these motions can also seek to admit evidence the opposing party might challenge. Rulings on motions in limine are often preliminary and can be revisited at trial.
Ethical considerations
Motion practice is governed by ethical rules that apply to every filing. Violations can lead to sanctions, reputational harm, or disciplinary proceedings.
Duty of candor
Under Model Rule 3.3, attorneys must be truthful with the court. This means no knowingly false statements, no misrepresentation of facts, and no misleading citations. It also includes an affirmative obligation to disclose adverse controlling authority that the opposing party hasn't cited. This duty exists even when disclosure hurts your client's position.
Frivolous motions
Under FRCP Rule 11, every motion filed with the court is a certification that it has a good faith basis in law and fact. Filing motions without legal or factual support can result in sanctions, including monetary penalties. Before filing, confirm that the motion is warranted by existing law or a nonfrivolous argument for changing the law.
Confidentiality concerns
Motions sometimes involve sensitive or confidential information. You must balance the need for disclosure with your duty to protect client confidentiality. Tools for managing this include redaction of sensitive details, motions to seal portions of the record, and protective orders governing how confidential materials are handled during litigation.
Technology in motion practice
Technology has changed how motions are prepared, filed, and managed. Familiarity with these tools is now a practical necessity.
Electronic filing systems
Most federal courts and many state courts require electronic filing (e-filing) through systems like CM/ECF (Case Management/Electronic Case Files). These systems handle filing, service, and document management. Learn the specific e-filing procedures for each court where you practice, as they vary.
Legal research tools
Online databases like Westlaw and LexisNexis, along with AI-powered research tools, make legal research faster and more comprehensive. They provide access to current case law and statutory information. Still, verify that every case you cite is still good law by using citators like Shepard's or KeyCite.
Case management software
Case management platforms help organize documents, track deadlines, and coordinate workflow among team members. Many integrate with e-filing systems and research tools, creating a more streamlined motion practice. For a legal writing course, the key takeaway is that these tools support the drafting process but don't replace the analytical and writing skills that produce effective motions.