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  • How to draft a complaint
  • How to answer a complaint
  • When not to answer a complaint
  • What a motion to dismiss is
  • How to file or respond to a motion
  • What discovery is
  • What a motion for
  • summary judgment is
  • Where to find the law that pertains to your case


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Motions in Court Cases

If you become involved in the trial of a civil case, you will become familiar with motions. The term motion, like other terms you will encounter is a legal term, but as with everything else, once you understand it, it need not be intimidating.

That’s right, jargon can be simplified and in the legal setting, a motion is nothing more than a request, sometimes in writing, sometimes verbal, to the court for something, or some kind of relief. A motion will always by responded to by the court with some kind of order.

Think of it as a formalized request and response interchange.

There are all sorts of different motions through the course of a civil case, and of course they pop up at different times. There are motions for summary judgment, or motions to dismiss. There are motions related to discovery. There are even motions to limit evidence (motion in limine). Deciphering the magic words is easy. Just substitute “ask for, or request” the court to do something for the word motion and it becomes crystal clear.

Motions will be filed and argued throughout the case, but because motions to dismiss, or for change of venue occur very early, often as the first response to a complaint, the entire topic is presented here, right after the section on court papers.

So what is all this about motions? Why do we need a motion system? Why even in some busy courts are there separate “motion courts?”

The legal system in the United States is predicated on an adversary system that is supposed to work through the steps according to prescribed rules. There is a judge to resolve issues that come up along the way, and of course to preside over the final trial of the matter, with or without a jury. Since caseloads are heavy, and judges have to carefully schedule their time, it’s not as though either side can just waltz into the judge’s office and say, “hey, Judge, they’re not answering the interrogatories”, or “we need to amend our complaint”.

As a result, we have what is known as motion practice. Familiarize yourself with the procedures, because there is no way that you will be able to represent yourself in court without encountering, or even yourself filing motions for various things.

Since a motion is nothing more than a request to the court for something, and because you are by necessity communicating to the court, you must always send the other side a copy of whatever you send the court. Judges are extremely concerned about what is called ex parte communication, that is where one side communicates with the judge without the outside the presence or without the knowledge of the other. The whole U.S. judicial system is predicated on fairness and openness and even a hint or suggestion that one side is talking to the judge without the other side is a serious matter.

Consequently, while it is mentioned here, it is relevant to many other topics as well. Anything that goes to the court or to the judge gets copied to the other side. This is such a stringent requirement that anything that you file with the court should be accompanied by a statement that you have sent the other side a copy. You will hear this referred to in this book and elsewhere as proof of service or a certificate of service.

So you know that in order to get the judge to consider whatever it is that you’re asking for you need to file and serve a motion.

Rules, Rules, Rules

Before embarking on the task of filing or responding to a motion, read the rules. All of them! This cannot be emphasized enough. Every court that you may find yourself in has one and probably more than one set of rules that govern how it operates and how you must conduct yourself in the handling of your case. If this point was not made sufficiently clear in the section on Rules, please allow this to be a wake-up call. And if there is one arena in which knowledge of and adherence to rules is more critical, in is in the realm of motions. You may be in the right on an issue, but unless you comply with the rules on such things as when and how to present it, chances are good that you will lose regardless.

Where to find the rules you need to deal with motions depends on the court that you find yourself in. In a federal court, there are three main areas that you need to consult.

First, the Federal Rules of Civil Procedure. This is the bible for federal courts. Be aware too, that you need to familiarize yourself with all the rules through trial. Why? Because there are parts of various rules that specify how something is to be done, where the rule itself does not specifically refer to the topic at hand. For example there is no single rule or section of the rules that applies specifically, just to motions. Section III is titled “pleadings and motions”, but does not limit itself to types of motions and the specific procedure for bringing or defending them. Before filing or responding to a motion, there would be (depending on the kind of motion) probably a half dozen different rules to consult. Motions are referred to in Rule 12 and there is a separate rule for Summary Judgment Motions – Rule 56. To get the whole picture, you need to familiarize yourself with all of the rules.

Next, each federal district court has local rules which supplement the federal rules, but are just as important. The local rules generally go into more detail and are more specific. These can always be found on the individual federal court websites. The local rules may impose different requirements than the federal rules, and complying with the federal rules is not an excuse for failing to comply with the local rules.

In addition to the local rules, in most federal courts there are standing administrative orders issued by the chief administrative judge, which dictate issues specific to that court. Individual judges likewise may have standing orders addressing a variety of issues, and if there are such orders, they will almost always have some reference to motions.

State courts are more varied. All states have the equivalent of the federal rules of civil procedure, either in the form of rules promulgated by the Supreme Court of a state, or appearing as part of a statutory scheme governing the administration of courts within that state. Like the federal system, there will often be local rules for the court that you find yourself in. All of these may impact to some extent the bringing and defense of motions. Within this smorgasbord of rules you will find such things as how to determine whether your motion requires a hearing, how to schedule it, how long you have to respond, how much time you have to allow the other party to respond, whether or not your motion requires a memorandum of law, if so, if there are limits to length, and so forth.

Motions in General

Once you grasp and appreciate the rules, actually filing or responding to a motion I is not difficult.

First, if you’re the one bringing a motion, decide what it is you want. Sounds simple, but people get hung up on simple things. If you find that you need to amend your complaint, after the time to amend as a matter of right has passed, then that’s what you ask for. If the other side has not answered your interrogatories, or has given evasive answers, then that is what you ask for.

If the motion is brought by the other side, decide whether or not you need to really oppose it. Here you need to bear in mind that there are separate and distinct reasons why attorneys bring motions. First, they bring a motion because they are actually seeking to resolve something. Second, the motion is a formality required by the court rules. An example of this kind of motion would be a motion to amend a pleading when the time to amend as a matter of right has expired. Many courts will require a motion to be filed even if the other side agrees, so that an actual order in response to the motion can be filed. In such a case, you may not really need to oppose the motion at all. If you have discussed with the other side amending a pleading, and you are in agreement, the actual motion to amend is not something you are going to be vigorously fighting. Since unopposed motions are generally granted, you can either just ignore a motion in such a case, or file a brief response saying that you do not object. The third category of motions filed by attorneys are filed simply to provide a basis for billable hours. While not all attorneys are guilty of this kind of practice, far too many are, justifying the time by insisting they are being thorough and covering all possible contingencies. This kind of conduct is seen most frequently with motions to dismiss and motions for summary judgment. Attorneys will inevitably file, brief and argue a motion to dismiss based on the pleadings, knowing full well that the case will not be dismissed but instead, the judge will allow you as the non-moving party to amend the complaint. At first glance it is beyond understanding why an attorney would file such a motion, knowing full well the outcome in advance. On the other hand, when one considers that a motion to dismiss, with supporting memorandum and the time required to go to court to act out the charade can require between ten and twenty hours of billable time, it becomes more comprehendible. And most clients, unaware of the nature of the proceedings or the actual intent of the motion remain clueless, actually believing their attorney has their best interests at heart.

Unfortunately, just asking for something, or saying you don’t agree with something is often not good enough. Judges are not psychic (though they’ve seen the same things over and over again). You need a little more than to say “hey judge – their answers to my interrogatories aren’t right”. You have to give a legal reason and basis, which will vary in complexity based on what it is you are asking for or opposing. In other words it’s usually not enough to ask for something because you want it. You need to show how and why you are entitled to it, or the other side should not be entitled to it.

Sometimes this can be very simple. Using the discovery example, say that you have served interrogatories on the other side, the time limit to respond has passed, and they have not answered. In the case of the other side presenting a motion to amend, it can either be to do nothing, or to file a one line response saying you do not oppose the motion.

Some motions can become more complicated. If you are asking for something which the other side could legitimately oppose, such as amending a complaint or an answer well into the litigation process, you will have to justify your motion (request) both in terms of legal issues as well as factual issues. In the case of a discovery issue, the other side may have responded, but objected. There could be a genuine dispute as to what is or is not a proper response.

Now you will have to reference not only the applicable rules, but will have to refer to law, usually in the form of court decisions, that supports your request. You will also have to cite a factual basis for the request you are making.  Using the same examples, amending late, you generally must show a good reason for not amending sooner, and will usually have to show that other side will not be unfairly taken advantage of or prejudiced by allowing the late amendment. In a discovery dispute, you will have to justify why the other side should be required to respond.

When a motion becomes more complicated in this way, many courts require that it be accompanied by a memorandum of law. Some jurisdictions require a memorandum of law with EVERY motion, others with only some, and in others it is left to the judgment of the party filing the motion. They are required virtually as a matter of course in federal courts, and more and more state court judges are requiring them.

A memorandum of law is a concise presentation of the law that applies to and supports what you are asking the court to do. It can be as simple as referring to rules, or as complicated as referring to cases decided by appellate courts where the issue is addressed. Continuing with our discovery example, which is a realm ripe with dispute, assume that you’ve served interrogatories on the other side and the response has been nothing but objections to the questions asked. The memorandum of law that you add to your motion to compel discovery will have to address the questions and the objections, showing how, based on prior decisions and the rules themselves, your questions were proper and the objections not valid.

Even if it is not specifically requested or required by any rules, it is a good idea, in all but the most simple and straightforward motions, to submit a memorandum of law with the motion.

First, it improves the likelihood that your motion will be granted. Judges are human and they are often overworked. If in what the judge directly has before him he can see that your request is reasonable, that you have gone through the effort to present and argue the legal issues, and that there is a legal basis for your request, he is far more likely to give you what you are asking than if he has to drag every nuance of the motion from you in a painful question and answer sequence.

Second, as surprising as it may sound, the judge may not be familiar with the law, especially if the issues in the motion are somewhat complex. In a motion to dismiss for example it may be helpful to set out clearly, with supporting authority the requisite elements of a cause of action, followed by a showing that they are missing in the complaint.

Finally, in representing yourself in a civil case one thing that you will always have to do in order to maintain credibility is to show that you are both conscientious and knowledgeable. Judges are often not enthusiastic about pro se litigants because so many of them think that all they have to do is wander into a courtroom and announce that they are representing themselves. Many pro se litigants incorrectly assume that because they are pro se, and because they are not attorneys, that all those pesky rules and requirements will be waived for them. One of your biggest hurdles is to convince the judge early on that you are aware of the rules, have done your homework, have prepared, and have researched the law in order to present your position. You can be assured that the first time the judge in a case sees a motion that you have filed, that complies with the rules and is accompanied by a memorandum of law that correctly supports your position, he will breathe a sigh of relief and you will be welcome in the courtroom.

There is also a requirement in most jurisdictions that attorneys confer, either in person, by mail or by telephone about the issues in at least some motions before they are filed. These jurisdictions require as part of the motion a written certification that the attorneys have actually communicated with one another and made and earnest effort to resolve the dispute before filing the motion.

Whether or not this requirement applies to you depends on the wording of the rule. Some rules specifically state that “attorneys” or “counsel”{ shall confer. Others refer to communication by the “parties” before filing. Obviously if the rule specifically mentions attorneys, it probably does not apply to you. On the other hand, the word “party” applies whether there is an attorney or not.

First determine whether there is such rule that applies to the motion you are contemplating filing. Next determine whether or not it applies to you as representing yourself. If it does then obviously you must comply.

Even if it does not apply to you it’s probably not a bad idea to comply anyway. Compliance is not difficult. A phone call or an email to the other side saying in effect: “hey, here is a motion I’m getting ready to file – is there something we can work out or agree to?” This will accomplish two things. First, it lets the judge know, if the motion has to be heard that you have done your homework and are trying hard to comply with the rules. Second, it lets the other side know that you are prepared, know the rules, and know how to take care of yourself in court.

The final thing that many judges will look for, and is often required by the rules, is a proposed order. This is as the name suggests, an unsigned order that you submit to the judge. Whether or not this is required will generally be found in the local rules for whatever court you find yourself in.  

Again, even if not required, including a proposed order is a nice touch. If the rules don’t require it, there is nothing to prevent you for submitting one anyway. It lets the judge know that you have done your homework. More important it makes it easy for the judge to give you what you want. A lot of judges will want to think about a motion (take it under advisement), or will waffle a bit. Judges are human too. With a proposed order right in front of him, it is easier for the judge to decide and just sign the order, for a ruling in your favor.

Serving the motion is not difficult and usually (there are a few exceptions) does not require personal service. Mail is most often the preferred method, and all you do is make a copy of the motion (including the memorandum of law and any cover letter that you send to the court), prepare a certificate or proof of service and drop it in the mail to the other side. Your proof of service will show that you mailed it and to what address.

As more and more courts are moving toward electronic filing, you can often serve motions and other papers electronically. You need to check and review the local rules. Some require a proof of service showing that you have sent the papers by email. Other systems automatically send copies of everything filed to every recipient on a service list. In these jurisdictions, you do not even need a proof of service, since as soon as you electronically file, everyone else receives a copy.

Some Specific Motions

Since motions are basically asking the court for something, there are potentially at least, all sorts of different motions that could be filed and if filed by the other side, need to be addressed.

Here some of the more common motions that you can expect to encounter, or even to file yourself.

Motion to Dismiss

In the progress of a case there are certain issues that must be raised early on, either in a motion or in the first responsive pleading (paper), usually the answer. If they are not, they are often waived.

There’s a reason for this. The issues we’re talking about are all basic and often go to the legal technicalities as opposed to the facts of the case itself. These are issues that the law, and for the most part common sense tells us should be resolved early on, not brought up later in the case. If the case has no merit, if it’s going to get dismissed on legal issues, or if the court has no jurisdiction over a party, why let it clog up the docket and waste everyone’s time.

An extreme example of such a case would be a citizen suing the President of the United States for squandering their tax money. Can such a lawsuit be filed? Of course! The clerks’ offices don’t have the authority to screen cases for merit. If the proper forms are there; if it’s put together in the right format; and the filing fee is paid, it’s filed. Of course it has no merit because there are uncountable constitutional and legal elements that do not allow for each individual citizen to bring such a suit. Lawsuits that have no legal merit need to be disposed of quickly. This kind of lawsuit will be disposed of with a motion to dismiss.

A motion to dismiss asks the court to issue an order dismissing the complaint, and therefore the case, before it gets any further. These motions never go to the truth of any contested matters, since in considering such a motion the judge must generally assume that everything alleged in the complaint is true. The motion is based on the face of the complaint.

Obviously, these motions are usually centered on legal issues, or the manner in which the complaint is worded. If you are the plaintiff and have filed the complaint, you absolutely have to address such a motion. Failure to do so will likely result in your case being dismissed. 

Motions to Dismiss are not new and while they today are addressed in the Rules of Procedure, their basis is in common law. They are an offshoot of the common law concept of a demurrer. While the concept of a demurrer has in most jurisdictions given way to a motion to dismiss, in some states it is still used. Since the motion to dismiss embraces the demurrer concept and adds a few twists to it, when motions to dismiss are discussed, it also applies to a demurrer in those places where it is still applicable.

To get an idea of some of the areas that a Motion to Dismiss might address, consider the applicable federal rule and go through it. It’s not that the federal rules are better than other rules, but Federal Rules of Civil Procedure were one of the first comprehensive efforts to make sense out of court procedures, and many states have adopted them to some extent, even to the point of using the same rule numbers. The federal rule of civil procedure that governs motions to dismiss is Rule 12(b). It is stated here in its entirety because there are different potions that need to be addressed.

Here is Section “b” of Rule 12 of the Federal Rules of Civil Procedure:

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Let’s take a look at this rule. There is a lot here! And it is potentially confusing.

The first part of the rule simply states that every defense to a claim for relief must be asserted in the responsive pleading, which will usually be the answer. The operative term is:  ”every defense”. If you contend that something in the complaint is not true, you have to say so. If there is an affirmative defense (Pleadings and Papers) you have to say so.

Since this section is about motions though, you need to focus on the next part of the rule. The rule goes on to say about certain defenses: “But a party may assert the following defenses by motion”. This is the basis for the motion to dismiss! Finally the rule provides that if you raise these issues by motion, the motion must be made before any responsive pleading.

It is potentially a bit confusing but if you read the rule carefully, it will make sense. Considering all of the parts of the rule together yields the following summary:

  • Your answer must include every defense you have, or even think you might have. This includes denials, affirmative defenses and specific issues enumerated in the rule.
  • Subject to that requirement, you have the option of raising several specifically listed defenses by motion.
  • If you do choose to raise them by motion, you must do so before you answer.

Basically, with respect to the listed defenses, you can file a motion, or you can include them as part of the answer. The one thing you cannot do is file a responsive pleading that fails to include any a required defense, then raise them later. If they are not raised in the first pleading or motion, they are waived to the extent that they can be waived.

The next question to be addressed is whether or not, if the motion to dismiss is denied, to include these defenses again in the answer. Yes. Definitely reassert any of these defenses in your answer if your motion has been denied. Here’s why. A motion to dismiss, is limited to the face of the complaint, and for the purposes of the motion, all of the factual allegations in the complaint, are deemed to be true. Remember, this is taking place at the beginning of the case. There has been no discovery and no evidence has been presented. Therefore the judge in ruling o a motion to dismiss simply takes the allegations of the complaint as true. Later, those allegations may be shown to be false. Many of the issues in a motion to dismiss, for example personal jurisdiction can be raised again, but they must be preserved. It is questionable whether or not having raised them in a motion that was denied is enough. To avoid any risk that a judge may rule that you failed to raise the defense or preserve it, reassert in the answer. It’s painless, and there is no downside to including it again.

So let’s look at the some of the grounds for a motion to dismiss and the things that must be raised or are waived.

(1)        Lack of subject matter jurisdiction. This refers to the jurisdiction of the court in which the case is pending to handle the case at all. An example is federal jurisdiction, since after all this is a federal rule. In the United States we have a federal judicial system, and of course we have state courts. The cases the federal courts can handle are defined by the United States Constitution and by federal statutes. If neither the Constitution or a statute do not give federal courts the authority to handle a case (jurisdiction) then the federal court has no authority regarding that case. Subject matter jurisdiction is in some cases referred to as an exception to the often misstated premise that a matter not raised by answer or motion to dismiss is forever waived. That is often simply not true. It is not a question of whether or not it has been waived, it is instead based on the principle that it is something that cannot be waived. But again, the objective of a motion to dismiss is to get rid early of cases that have no merit. If there is a question of subject matter jurisdiction, early is the time to address it.

(2)        Lack of personal jurisdiction. This is the flip side of subject matter jurisdiction and in it one contends that the court cannot assert jurisdiction over the person being sued. Courts are limited as to who they can assert authority over. This is discussed in greater detail in the section on Jurisdiction. There are limits imposed both by the statutes that created the court to begin with as well as state and federal constitutions as to the extent of a court’s authority. Except as provided in specific statutes (Long Arm Statutes) a court cannot reach beyond the borders of the political entity in which it sits. The courts of the State of Georgia for example usually have no authority impose their orders or judgments on a citizen and resident of the State of Maine. The United States has no authority to impose its orders and judgments on the citizens and residents of Brazil.

            If you have been sued and believe that the court in which the case is pending does not have jurisdiction over you, it is absolutely imperative that you raise that issue in the first responsive pleading, and preferably by motion. Unlike subject matter jurisdiction, which can often be raised again later, the issue of personal jurisdiction once waived can never be raised again. And unfortunately it is incredibly easy to inadvertently waive objections to personal jurisdiction. Basically, if you do anything other than object to jurisdiction, there is a possibility that you will have waived your defense of personal jurisdiction. Some courts have held that even asking for an extension of time in which to answer or respond constitutes a general appearance and waives the defense.

(3)        Improper Venue. Dismissal for this reason is more likely to occur in federal courts than in state courts. Remember, jurisdiction goes to the power of a court, venue merely refers to whether or not the location is proper. While it of course depends on how statutes and rules govern venue, generally the remedy for improper venue in state courts is to simply move the case. Rarely will venue affect the merits since even if a case is dismissed it is not on the merits and therefore can simply be re-filed

(4)        Insufficient Process.   This refers to whether or not the summons itself, which is the document by which the court actually acquires jurisdiction of the defendant, was proper. It is not the same as whether or not the summons was properly served, which is addressed in Rule 12(b)(5). Since it refers to the validity of the summons, which is often only valid for a specific amount of time (Rule 4 FRCP specifies 120 days) it can also refer to the failure to serve the summons on time.

(5)        Insufficient Service Process. This basically refers to those situations where there is some question as to whether or not the summons and complaint have been properly served. It of course relates indirectly to the issue of jurisdiction in that without proper service the court has not acquired jurisdiction of the defendant. This is usually not a major issue, since the remedy is to go serve the papers properly, but in instances where the statute of limitations on a case is close to expiration, it can be critical.

(6)        Failure to state a claim upon which relief can be granted. This is the most common ground for filing a motion to dismiss. The thrust of motion to dismiss for failure to state a claim upon which relief can be granted is basically that even assuming that all of the allegations of the complaint are true, there is no basis for recovery as a matter of law. There are a number of different scenarios that would apply.

In some instances it is an issue of there being a legal bar to the lawsuit. In the example set forth above where someone tried to sue the president, it would be issues of sovereign immunity. There may be conditions that must be satisfied before a lawsuit could properly be commenced. An example might be a discrimination case of some sort.  These cases usually require that some agency investigation be initiated and pursued to a certain point before filing suit. Some require the agency to issue what is called a suit letter. Bringing these cases without going through these steps is not permitted, and doing so would be grounds for dismissal. The motion to dismiss in such a case would basically be saying that even if all of the allegations of the complaint were true, the lawsuit cannot proceed as a matter of law because the prerequisite steps have not been followed or there is a legal reason the suit cannot proceed.

Another instance of reason to file a motion to dismiss would be if a complaint fails to set forth all of the essential elements of a cause of action. This goes back to the section on planning and doing research. The complaint, on its face must set forth the required elements of a cause of action. While the requirements are more relaxed in those states that still adhere to fact pleading and have not adopted the enhanced pleading requirements established in recent cases, in other states as well as in federal courts, the complaint must state facts such as will allow a court to discern a cause of action. If the complaint does not contain these required elements, it will be subject to dismissal.

 (7)       Failure to Join a Necessary Party. This motion recognizes that there are times when a lawsuit cannot resolve the issues in dispute without another party participating. A simple example of this is in what is commonly referred to as a derivative shareholder action. This is where the law allows a shareholder of a corporation to pursue a cause of action or claim that would otherwise belong to the corporation, but that the corporation for one reason or another is not pursuing. The statutes creating this cause of action generally hold that while a shareholder is allowed to bring such a suit, the corporation is a necessary party. If a court determines that in fact a necessary party is missing from the suit, the remedy may be as simple as amending the complaint to add the party. On the other hand, it may be fatal to the lawsuit if, for example the missing party is beyond the jurisdiction of the court.

Discovery Motions

Discovery in a civil case, covered in a section devoted to that topic, is by and large intended to be engaged in between the parties, without involvement of a judge. The rules set forth what must be divulged and the procedures to be used.

Of course it doesn’t work that way. The discovery process generates far too many issues that often can only be resolved by a judge. One side is seeking information from the other side that does not want to divulge it. As a result, the responses to discovery often include objections (some meritorious, others frivolous) and evasive answers. Obviously, with all the rules and court decisions involving these issues, you can expect at least one if not several motions concerning discovery through the course of litigating a case.

In the discovery process you will encounter two general types of motion – motions to compel and motions for protection. Motions to compel are those filed by the party seeking discovery, arguing that that other side has either not responded to discovery requests at all, or if they have, they have not responded completely. Motions for protection are filed by the party from which discovery is sought and basically argue that they should not be required to provide certain kinds or specific items of information, or that the other side is abusing the discovery system by requesting overly broad and burdensome information.

Motions to compel discovery come in three flavors.

The first is filed when the other side simply does not respond at all. Interrogatories or requests to produce are served, and nothing happens. In this case a motion is filed which requests an order requiring responses to the discovery. A court also has other options available. It can fine the non-responding party. If the non responding party is the plaintiff it can dismiss the lawsuit. If it is the defendant it can strike the answer which puts the defendant into default. This version of the motion to compel is rare. First, it is clear to the parties that they must participate in discovery – it is not optional. Second, the outcome is certain. Third, the risks are substantial.

The second variety occurs where responses have been provided but it is felt they are not proper responses.

Let’s look at an example.

A common set of interrogatory questions asks that anyone who is expected to testify at the trial of the case be identified. It further asks for a summary of what the witness is expected to testify to at trial. Often attorneys will provide a response such as “Witness “A” will testify as to the facts and circumstances of the matter in dispute”.

This answer is of course totally meaningless. Attorneys present these responses hoping that they can get away with them. You can fully expect responses such as this if you represent yourself, because attorneys will assume that you do not know any better any will simply accept such a silly response. Responses like this require a motion to compel, so that a judge can issue an order requiring an appropriate answer.

The third variety of motion to compel is where the other side has objected to specific interrogatories, or requests for production, or has refused to answer certain questions at a deposition. This is an area that often involves a genuine dispute between the parties as to whether or certain information is subject to discovery.

A motion to compel discovery is one of those motions that almost always requires either the attorneys or the parties, regardless of whether represented or not to attempt to resolve the issues before filing. To accomplish that is easy, because it is by and large an exercise in futility. If a party or their attorney was going to respond to the discovery in the way that you are expecting, they would already have done so.

While a little bit on the cynical side, the observation must be made that the realm of discovery is cherished by attorneys because of the potential to bill almost limitless hours of time bickering about the technicalities and niceties of privilege and scope of discovery. Suffice it to say that it is an often abused area of the law for less than scrupulous attorneys whose main objective is to bill as many hours of time as possible.

So in communicating with the other side as a precursor to filing the motion, you might as well just be preparing the motion and send them an abbreviated version in a letter or an email.

The manner in which a motion to compel is prepared is governed by the rules, of course, but very often for motions such as this there are unique requirements in local rules. For example some local federal districts require that in any motion to compel, each interrogatory or request in dispute be set forth verbatim, along with the response, if any, in the motion. Read the rules – all of them!!

The most common areas of dispute in the discovery realm is whether or not the request is within the scope of discovery, whether or not the request or question is subject to some form of privilege, and whether or not the question or request is overly broad or burdensome under all of the circumstances.

The good news is that discovery being such a ripe area for litigation, it is never difficult to find case law or authority to support your position regarding any of these questions.

On the other side, the party from which discovery is requested may file a motion for a protective order. The rules providing for discovery are usually pretty general and allow for liberal discovery but there are some things that are often asked or requested that are not included in that scope. While some rules, such as the Federal Rules of Civil Procedure limit things like numbers of interrogatories, or requests to produce, others contain no limits. So there is plenty of potential for overly broad or excessive discovery requests. The problem is that you cannot simply refuse to answer or respond. This just sets the stage for a motion to compel to be filed by the other side. You are far better off, and not on the defensive if you take the initiative and request a protective order.       

Motion for Summary Judgment

A motion for summary judgment is one that you will see frequently in the course of litigation, and may consider filing yourself. It is a request to the Court to grant judgment in favor of the moving party and against the other party either as a matter of law, or because following development of the case, there is no genuine issue of material fact that would enable to the nonmoving party to prevail. A motion for summary judgment and a motion to dismiss have some similarities, but in the end are substantially different. A motion to dismiss concerns itself with the adequacy of the complaint, while a motion for summary judgment goes beyond that and encompasses factual matters.

A motion for summary judgment basically says that with the evidence developed as of the time of the motion, and with evidence that can be developed, there is no genuine issue of material fact, and the moving party is entitled to prevail on the issue as a matter of law. That is the party making the motion is entitled to win before the matter ever gets to the jury.

A motion for summary judgment can address the entire case or part of it.

The key things to be aware of about motions for summary judgment are:

Unlike a motion to dismiss, which must be filed at the beginning of the case, a motion for summary judgment can be filed at any time until trial unless some other time limit is specifically imposed.

Unlike a motion to dismiss, where if a pleading has some problems the result is to allow amended pleadings to address the issues, an order granting summary judgment is final with respect to those issues. There is usually no going back and fixing it.

A motion for summary judgment can be based on purely legal issues, or it can include factual issues.

If a motion for summary judgment includes factual issues, these can be presented to the judge in the form of affidavits, depositions, exhibits, other documents, or basically anything that is in the court record.

The standard for a judge to use when considering a motion for summary judgment is that all factual issues and all inferences from factual issues must be assumed to be in favor of the party opposing summary judgment.

What the last two points taken together mean is that if there are factual issues to be considered they can be presented to the court in several different ways. They always have to be attached or referred to in the motion itself so the party opposing summary judgment has a chance to address them. A party moving for summary judgment can attach affidavits (sworn statements before a notary or other officer) or all or part of   deposition testimony or answers to interrogatories and responses to requests to admit.

The party upon whom the motion is served has a reasonable amount of time, which varies from jurisdiction to jurisdiction to respond to the motion, after which a hearing is held. That means the other side gets a chance to gather its own evidence in the form of affidavits, etc. to counter what is in the motion for summary judgment. The rules are always very specific and require that any factual issue be resolved in favor of the party opposing the motion for summary judgment.

That makes perfect sense when you go back and look at the motion itself. A motion for summary judgment basically says that there is no genuine issue of material fact. Obviously, if there is conflicting evidence presented, the requirement has not been made – there IS a genuine issue of material fact and summary judgment cannot be granted.

The important thing to keep in mind is that the difference must be of material fact and must be demonstrated by at least some evidence. Virtually all rules pertaining to summary judgment specify that a party opposing summary judgment cannot simply rely on the pleadings, but must put some evidence forward. In short, if a motion for summary judgment asserts “X” by some of the things listed above, the party opposing the motion cannot simply say “X” is not true. There has to be something backing that assertion.

That means if you are served with a motion for summary judgment you cannot just point to your complaint or answer and say “See Judge – it’s right there in the answer – we disagree with that.

You will lose.

Summary judgment motions are very serious in that potentially, if you lose the motion you could lose your whole case before it ever gets to trial. But, just because they’re serious does not mean that you cannot deal with them. It does require a lot of work and research. You have to fully understand the law as it applies to the case, and understand how it applies to the facts at issues.

As a case progresses toward trial there may be other motions. Remember, a motion is nothing but a way to get an issue in front of the judge so that he can make a ruling.

Some other motions that you might expect to see:

Motion to amend pleadings.

All civil procedure rules have provisions for amending pleadings. Most (but not all) provide some period of time in which the right is automatic and no motion is required. If you want to change your answer or complaint, you just file and serve and amended answer or an amended complaint.

Later on it’s not so easy. It really gets down to a question of fairness. Early on it’s no big deal. No one has done anything in reliance on pleadings being as they’re originally filed and served. No depositions have been taken and probably any other discovery has been generic. No one is going to be prejudiced, and the trial of the case will not be delayed if the complaint is amended. That changes as the case goes along. Once a defendant has answered, once a defendant has served and responded to discovery, identified and interviewed potential witnesses and gone through all the work involved in moving toward trial, it could be to allow the complaint to be amended to add a new cause of action.

So after the initial automatic amendment period, in order to change pleadings, a party must file a motion asking for permission to do so. The motion must of course state the reasons why the amendment is needed, why it is just now being amended, whether or not whatever is creating the need to amend could have been discovered earlier with a little effort, and how the party seeking to amend would be harmed if the amendment was not allowed. The other side must file a response (assuming they object to the amendment) pointing out the converse of these issues. They will try to establish to the judge that with a little effort and diligence the pleading could have been amended much earlier. They will point out the time spent and expense incurred in reliance on the pleading before amendment, and how they will be unfairly taken advantage of should the amendment be allowed. The judge will of course take these factors into consideration and make a ruling. Obviously, if a pleading is amended, the other side is allowed time to file and serve new responsive pleadings. The general rule of thumb is that the later in the case, the more work that has been done, and the closer the case is to trial, the more there had better be a very good reason for amending pleadings!

Motions in Limine

A motion in limine means to limit testimony. Sometimes in a case there are things that one side or the other just does not want to have brought out. Often these are things of an embarrassing or personal nature that the other side may want to introduce in order to embarrass someone. Often they are the kinds of things that while possibly relevant, would tend to prejudice a jury. A motion in limine can be filed at any time prior to trial, or sometimes, even during a trial when it appears that testimony is going to create problems, which makes it a very versatile motion.

What the motion asks the judge for is an order directing that certain evidence may not be used, or must be disclosed ahead of time. These are very handy motions. Don’t be afraid to use them. One example, depending on what jurisdiction you are in, would be the use of charts, drawings or exhibits. As technology advances, many courtrooms are equipped with things like computer terminals at the counsel tables, video display equipment and so forth. The rules on things like power point displays, graphics and similar things have not kept pace with technology. Further, the rules regarding exhibits and displays are very sketchy – as long as they merely summarize evidence that has already been admitted into evidence, or merely present it in a different way, they are allowed. Bottom line, do you really want to be in court and see for the first time as it is presented to the jury, a power point presentation?

Probably not.

The problem is that since it is not evidence, nor a discoverable document, the other side is under no obligation to share it with you ahead of time. Unless that is, you’ve filed a motion in limine and gotten the judge to issue an order saying that nothing along those lines will be presented to the jury unless you’ve seen it at least twenty-four hours ahead of time. With a little experimenting, you’ll find that these motions are great tools.


Motions are an inevitable part of litigating a civil case. There is no reason to fear them or be apprehensive, with one caveat – be prepared. As with anything else, presenting or defending a motion to a judge requires research and organization. Once the case is filed there are facts to be dealt with, even if they consist of nothing more than what the pleadings say or don’t say. There is law, in the form of rules and court decisions to be applied to those facts.

As long as you do your homework and are organized you will be fine. Just remember that judges will hold you to the same rules and same law as the attorney on the other side. You cannot waltz into court on a motion and play the “gee I don’t have a lawyer so I didn’t know” game – you will lose.