Developing Ideas for Motions

Excerpted from Motion Practice and Persuasion

By L. Ronald Jorgensen

Brainstorming Ideas for Motions:

1. Routine.  Certain motions are common to every type of case.  For example, a civil defense lawyer will always consider a summary judgment motion.  A criminal defense lawyer will always consider a motion to suppress.  Before answering a pleading, a civil lawyer should consider any preliminary motions such as lack of jurisdiction or improper venue. A criminal defense lawyer should consider any motion based on defects in the indictment or information, severance of charges or defendant, and the like. 

2. Problems.  Problems arise that befuddle lawyers and clients alike.  A divorce decree has a clerical error.  A record on appeal is missing transcripts. A defendant threatens to hide or squander his assets before judgment.  A lawyer should consider a motion whenever a problem arises. 

3. Trial preparation.  Motions solve a variety of problems that arise in trial.  The lawyer who is willing to ponder and plan for an upcoming trial will find many good ideas for motions.  What witnesses are needed?  What evidence is needed?  What problems does the lawyer need to solve?  A lawyer planning a trial should consider both housekeeping motions and combative motions such as a motion in limine.

4. Legal research.  A rich source of ideas for motions is the case law and the statutes.  Sometimes a lawyer will find a totally unexpected case.  Several motions that I have described previously are examples of cases where the lawyer unexpectedly found a controlling case doing background research. One source of ideas for motion are footnotes that describe an issue that the appellate court refused to consider because the issue was not raised at trial.  Raise that issue as a motion.

5. File raiding.  One rich and often overlooked source of ideas for motions are the court files of cases similar to the lawyer’s present case.  In these files, lawyers will find motions, affidavits, declarations, orders, transcripts, and jury instructions prepared by the leading lawyers in the field, perhaps even by the lawyer’s adversary.

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