| 1. | For motions to dismiss, the party filing the motion (the “movant”) is hamstrung. It must assume, with very limited exceptions, that the facts in the complaint are true. Thus, motions to dismiss succeed only when the complaint itself suffers from some defect. Filing a motion to dismiss can elicit information from the plaintiffs about their legal theory, lock plaintiffs into a position earlier than they would like, and color a judge’s view of the merits of plaintiffs’ claims. But if you lose, the judge’s opinion will give the plaintiffs a clearer sense of exactly what they need to establish to win. |
| 2. | For summary judgment motions, the movant is again hamstrung. It generally needs to base its arguments on undisputed facts gathered during discovery. |
| 3. | When filing or opposing a nondispositive motion, introductions are especially important, as judges will be more inclined to grant (or deny) a motion if they can grasp quickly why the motion was filed and what it asks them to do. Keep these motions short. |
| 4. | Because motions are almost always considered by a single judge, you should gain information about the judge’s experience and predilections. See Appendix A (“You are arguing to a particular tribunal. Everything else turns on that.”). |