FREQUENTLY ASKED QUESTIONS ABOUT MOTIONS
| Q. | How long should my dispositive motions be? |
| A. | While no empirical work has reported on the optimal length of various motions, here are some rough guidelines. A simple motion to dismiss or motion for summary judgment usually runs ten to twenty-five pages. A more complicated dispositive motion typically runs twenty to forty pages. A very complicated dispositive motion might exceed forty pages, but check the local rules to ensure that you comply with the page or word limit. Dispositive motions in complex federal cases sometimes devour fifty pages or more, including some behemoths that run several hundred pages. But those motions are outliers. Judges may resent such lengthy filings, so be sure that you truly need a whopper of a motion before moving for permission to file one. Oppositions to a motion usually mirror the length of the motion. |
| Q. | How long should nondispositive motions be? |
| A. | Try to keep your motions under fifteen pages; in general, shorter is better. Motions, however, can run anywhere from one page to one hundred pages (but both extremes are rare). At the short end, a motion can be just a page or two (see Example 14.6). By contrast, complex motions on major issues (such as striking a critical expert report, disqualifying opposing counsel, or compelling production of a wide array of documents) can easily run twenty to forty pages. They sometimes run longer, but proceed cautiously: judges value their time. A two- or three-page motion that thoroughly covers the issue conveys confidence and certitude, and it will please judges. Just realize, however, that supervising attorneys may want to see a longer, more exhaustive document, so a short document may make your boss think that you cut corners. |
When the other side files a long motion, you may be tempted to respond with a comparably massive opposition, but resist or temper this urge.
And never submit a 3,000 page document to a judge. Cf. Jenna Green, ITC Judge Calls 3,000-Page Patent Fight Submission from Apple “Unacceptable,” (May 8, 2012, 2:29 P.M.), http:// legaltimes.typepad.com/blt/2012/05/ itc-judge-calls-3000-page-patent-fight-sub- mission-from-Apple- unacceptable.html.
| Q. | When I file a motion to dismiss based on a failure to state a claim, can i mention any facts that are not in the complaint? |
| A. | Proceed cautiously, as your motion to dismiss may be treated as a motion for summary judgment if you dispute the other side’s facts or introduce facts into the case that the plaintiff’s complaint did not mention. The conventional wisdom about motions to dismiss is that defendants may steer the court only to issues “within the four corners of the complaint.” That said, there are several exceptions that (subject to the local rules and case law) defendants may use to stretch the record on a motion to dismiss. These include (1) any attachments or declarations that accompanied the complaint; (2) records of which the court may take judicial notice (such as public government documents); (3) documents that are mentioned in the complaint, even if they are not attached (a rule called the incorporation by reference doctrine); (4) documents that the plaintiff relied on in bringing suit and that the plaintiff either currently possesses or was aware of when the case was filed; and (5) documents that both parties acknowledge to be authentic. Lawyers sometimes add additional facts for atmospheric background — and to influence judges — while being clear that those facts are not necessary to the resolution of the motion to dismiss. |
| Q. | How extensively should a given filing remind the court what the case is about? |
| A. | Lawyers tend to provide useful summaries to judges when they file dispositive motions. In nondispositive motions, however, lawyers tend to provide too little information to judges about how the issue fits into the case. For instance, when moving to compel production of documents, motions should help the judge see how the contested documents relate to the case. Instead, lawyers usually presume (incorrectly) that judges can infer why the movant needs those documents. To avoid these problems, motions should more frequently remind the judge what the case is about on the first page or two (either in the body of the document or in a footnote) and explain how the requested relief relates to the case as a whole. A notable exception applies when the judge has exerted special effort on the case and therefore is presumably familiar with it. For instance, if you file a motion mid-trial, you can safely assume that the judge knows what the case is about. |
| Q. | I’m part of a team writing a motion. I’m just writing a short section; how should I ensure that my colleagues can plug my section into the draft that they are managing? |
| A. | Many complicated briefs and motions are written by teams of lawyers. To maximize the likelihood that your portion can be added seamlessly, try to acquire and review the following documents: (1) the most recent complaint from the case so that you know what issues have been alleged; (2) samples of the lead author’s work from earlier in the case (or a portion of his or her draft) so that you can mimic that lawyer’s writing style and tone; and (3) a table of contents of the motion so that you know where your passage will be inserted. If you and your colleagues are opposing a motion, you will obviously want that document. In general, dull your style when you are writing as part of a team, as the group-writing process tends to remove colorful phrases, elaborate metaphors, and stylistic choices. |
| Q. | I know that this book is about written advocacy rather than trial practice, but are there any other important tips about writing motions that I should know? |
| A. | Court rules usually require parties to “meet and confer” before filing a motion. This duty requires lawyers to assess whether the other party (or nonparty) is willing to agree to the relief that the motion would seek. Lawyers usually need to certify to the court that they complied with this obligation. Your “motion” — which this book defines as a “trial brief” — will need an actual motion, which is a one or two page statement of the relief that you seek. You may need to jump through additional hoops when filing a motion, such as serving a “notice of motion” or preparing a draft order. And some state courts require parties to obtain the court’s permission before filing a motion. Attach relevant declarations to your motion, and attach relevant exhibits to those declarations. And more generally, check the rules carefully before filing your motion, especially when you are appearing in an unfamiliar court. |