how a lawyer should review a draft of motion

Do I need a lawyer to draft a motion?

If you are representing your own case, then you are not legally required to have an attorney draft a motion for you. Some common legal motions include motion to dismiss, motion to strike and motion for summary judgment.

How do you write a legal motion?

Begin the legal motion by writing an appropriate title in all capital letters. The title should clearly explain your motion. For example: Declare the facts. Under a capitalized heading titled FACTS or DECLARATION, you need to explain only the facts of the case. Do not plead your case yet. Just state the known facts which are relevant to your case.

How to file a motion to move a judge to decide?

Conclude the motion with a brief summary of your request. Restate your goal in filing the motion and what you hope to move the judge to decide. Be careful when filing a motion to the courts on your own. Filing forms incorrectly could result in you being forced to pay fines or legal fees.

Do you need a plan to write a motion?

You wouldn’t start constructing a building without a plan, and neither should you begin to write a motion without outlining what you want to say first. A detailed outline is a great way to focus your argument and improve its presentation.

How do you write a brief in support of a motion?

For an effective brief in support of most motions, the Statement of Facts should cite support sentencebysentence. Including specific support for the facts has an added benefit. By focusing support factbyfact, a conscientious brief writer is better able to describe the facts with precise accuracy.

What does it mean to draft a motion?

I. WHAT ARE MOTIONS? A. Definition - an application to the Court (usually in writing), through which a party asks the Court to grant certain specified relief.

How do you respond to opposition motion?

I, Declarant's Name, am the Plaintiff or Defendant in this matter, and I declare the following in support of my opposition/reply to opposition to Moving Party's motion for order to title of motion: Explain the facts in numbered paragraphs, one paragraph per fact or concept.

What does it mean when a lawyer puts in a motion?

A motion is an application to the court made by the prosecutor or defense attorney, requesting that the court make a decision on a certain issue before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony.

How do you move a motion in court?

It is very simple. To move in terms, a lawyer simply introduces the motion to the court, stating the date on the motion paper and the date the same was filed, and then, sits down in order for the court to hear from the Counsel on the other side as to whether he would be opposing the application or not.

What is an example of a motion?

Examples Of Motion Our daily activities, like walking, running, closing the door, etc. involve motion. There is a change of position of the object involved in these activities. The flow of air in and out of our lungs is also an example of motion.

How do you draft a legal response?

When drafting an answer, one must: (1) follow the local, state, and federal court rules; (2) research the legal claims in the adversary's complaint; (3) respond to the adversary's factual allegations; and (4) assert affirmative defenses, counterclaims, cross-claims, or third-party claims, if applicable.

What is a response to a motion?

A Response will address the Motion and provide the party's position on the points raised in the Motion. This can include a rebuttal to issues of fact or law raised in the Motion. A Reply will address the points raised in the Response and provide the party's position on the points raised in the Response.

How do you write a legal motion sample?

Create a legal heading for your motion. ... Capitalize your title head. ... Declare the facts. ... Write the memorandum using the law and legal precedent to plead your case. ... Conclude the motion with a brief summary of your request.

What is the difference between a motion and a brief?

As a general principle, a motion asks a court to do something or to not do something. A "memorandum of law" or a "memorandum of points and authorities" "briefs" the court, i.e., explains to the court the legal authority, consisting of both decisional and statutory law, which supports the moving party's request.

What does motion Denied mean?

In effect, in both kinds of cases, the lawyer asks the judge to direct a verdict for the defendant. The judge will either grant or deny the motion. If it is granted, the case is over and the defendant wins. If the motion is denied, as it usually is, the defense is given the opportunity to present its evidence.

What is the purpose of pretrial motions?

One of the primary purposes of this state's pretrial process is to resolve as many evidentiary issues as possible before proceeding to a California jury trial. These issues are generally resolved through motions. Simply put, a “motion” is a request for a judge to do something.

How do you make a motion?

OverviewYou write your motion.You file your motion with the court clerk.The court clerk inserts the date and time your motion will be heard by the judge.You “serve” (mail) your motion to the other side.The other side files a written opposition to your motion with the court.More items...

What is a motion in a meeting?

A motion is a formal proposal by a member to do something. Motions are the basis of the group decision-making process. They focus the group on what is being decided. Generally, a motion should be phrased in a way to take an action or express an opinion.

How do you write a formal motion?

To introduce a motion, say “I move that …” followed by a statement of the proposal. The motion is not discussed until it has been seconded by someone and stated in full by the chair. purpose of requiring a seconding of a motion is to confirm that more than one member of the assembly wishes to discuss it.

How do I do a motion vote?

To Amend a Motion. Raise your hand and make the following motion: “I move to amend the motion on the floor.” This also requires a second. After the motion to amend is seconded, a majority vote is needed to decide whether the amendment is accepted. Then a vote is taken on the amended motion.

What do you need to say in the second paragraph of a motion?

In the second paragraph you need to give the judge a legal reason to grant the motion. Judges are limited in what they can do. It is your responsibility to tell the judge the law or rule which allows the judge to grant your motion.

When can you bring a motion for summary judgment?

You can bring the motion for summary judgment after you and the other party have finished swapping documents during the “discovery” phase of the lawsuit.

How to sign a motion in a letter?

Insert a signature block. Every motion must be signed. You should insert “Respectfully submitted” and then insert a line below for your signature.

What is caption in a motion?

A caption includes the name of the court, the names of the parties, the case number, and sometimes either the judge’s name or the courtroom number. Take out another motion or court document filed in your case and copy the caption information from that document.

How to schedule a hearing?

If you need a hearing date, then some courts will have you fill out a Notice of Hearing form. You then will get a hearing date from the clerk and insert that information on the form. You must then send a copy of the notice to the other party along with a copy of your motion.

How to add a certificate of service to a motion?

Add a certificate of service, if necessary. You need to send a copy of the motion to the other party. You also need to certify to the court that you have sent a copy of the motion. In your certification, you should state the date you sent it and the method you used. Use a separate piece of paper.

What to do if you can't attend a trial?

If you can’t attend your trial in two weeks because you have been diagnosed with cancer and need to attend chemotherapy on that date, then get an affidavit from your doctor.

When are different motions used in a trial?

Different motions are used at different points in a trial, including: Before the trial begins. During it. After a verdict has been delivered. While there are lots of different types of legal motions, the ones below tend to stand out for being both very common and very important to individual cases.

What is a motion for a directed verdict?

Another motion that shares features with a motion for summary judgment and a motion to dismiss, a motion for a directed verdict is one whereby one party (in this case, the defense) asks the court to end the case. A motion for a directed verdict is made by the defense after the prosecution has already rested its case.

What is a motion for nolle prosequi?

This motion is often filed if new evidence has come to light either proving the defendant’s innocence or exposing a serious flaw in the prosecution’s case. A motion for nolle prosequi is basically the prosecution asking that the judge throw out the case because the defendant is either innocent or there is clearly not enough evidence to lead to a conviction.

Why do we use motions to compel?

As noted above, motions to compel can be used during the discovery process to ensure that both parties have full access to the facts of the case. For example, if the plaintiff refuses to answer questions in a deposition, the defendant may file a motion to compel the plaintiff to answer those questions.

What is a motion to compel discovery?

A number of different motions can be used to ensure that both sides are able to handle the discovery process to the best of their abilities. If the other party fails to respond to a request for information, for example, then a motion to compel discovery of that information could force that party to provide a response.

Why is a motion to dismiss important?

procedural law. The moving party in such a case may concede that the facts of the case are true, but that the case should nonetheless be dismissed because there is no legal issue presented in those facts that the court can rule on.

How many types of motions are there?

Eleven Types of Legal Motions in U.S. Law. For a court to take most actions on an issue that is in dispute, either party in a case must ask the court to decide on that issue. When a plaintiff, prosecutor, or defendant asks the court or judge to rule on a specific issue, that request is known as a motion. Legal motions are one of the most common ...

What should be included in a motion?

This should include the name of court you are petitioning, the names of the plaintiff and defendant, the case number and name of the judge you are motioning. Here is an example of a header:

How to write a memorandum for a motion?

Write the memorandum using the law and legal precedent to plead your case. This is your opportunity to argue the reason why you are motioning the court. This is the time to explain why the law supports your motion and convince the judge to grant your motion.

What to do if you are petitioning a court?

Contact the court you are petitioning for information about specific forms you may be required to file with your motion as well as for more information about that particular court's filing process.

What is a motion in court?

A motion is essentially a legal request to a judge asking for a decision about a case. This specific request varies depending on the person filing the motion, or moving party's, goals in filing the motion. Typically, your lawyer will file any necessary motions for you.

How to capitalize a legal motion?

Capitalize your title head. Begin the legal motion by writing an appropriate title in all capital letters. The title should clearly explain your motion. For example:

Do you have to have an attorney draft a motion for summary judgment?

If you are representing your own case, then you are not legally required to have an attorney draft a motion for you. Some common legal motions include motion to dismiss, motion to strike and motion for summary judgment.

Why do you submit a motion?

Submitting a motion enables you to approach the court directly and ask it to do something specific. It’s also a great opportunity to tell your story while educating the judge on the facts of the case and the law pertaining to it.

When outlining a motion, what do I ask?

When outlining a motion, I ask two important questions: what do I want to prove, and what do I want the judge to do? If you can answer those questions clearly, you’re half-way home already.

Why are motions important?

Put simply, motions are extremely important weapons in a trial lawyer’s arsenal. Used timely and correctly, they can be the difference between winning and losing a case.

What are some motion words to keep out of a sentence?

Keep out of your motion words like, “Clearly,” “notably,” “worth-noting-that,” “interestingly” and “surprisingly.”

How to write a motion without a plan?

1. Make an Outline. You wouldn’t start constructing a building without a plan, and neither should you begin to write a motion without outlining what you want to say first. A detailed outline is a great way to focus your argument and improve its presentation.

How intelligent are judges?

Judges are usually highly-intelligent and well-read , and they’ve heard hundreds if not thousands of legal arguments. Don’t waste their time with highfalutin phrases and five-dollar words—it won’t impress.

What does careless citations tell the judge?

Make certain your citations are up-to-date and not overruled or reversed. Careless citations tell the judge that you didn’t take the time to verify your sources. Relying on incorrect or outdated case law is a quick way to your motion being rejected.

Why is a motion supported by both attorneys?

But in some cases, the motion is supported by both attorneys if the potentially shared information is overall prejudicial and neither party can predict how the jury will side. For instance, imagine the jury learned that the responding police officer in a car accident case knew the plaintiff personally.

What should counsel do when drafting a motion in limine?

In compiling a motion in limine, counsel should also carefully assess their motion’s intent. Motions seeking to stop opposing counsel from violating some provision of the applicable rules of evidence or to exclude evidence that isn’t likely to be submitted in the first place will often do more harm than good.

Why exclude expert opinion in limine?

However, if the reason for excluding the expert’s opinion is that the expert is not qualified, a Daubert motion is better tailored to address the issue. In other cases, excluding a certain piece of evidence via a motion in limine could have the effect of disposing of an element of a party’s claim or defense.

How to present evidence in a motion in limine?

There are a few options for presenting evidence even with the inclusion of a motion in limine. Counsel may file deposition testimony, file an expert’s report, call the expert witness to the stand outside the hearing of the jury, or even provide a narrative of what the witness would testify to if called. It should be noted, as well, that some motions in limine are granted “tentatively,” which means they may be reversed once the court sees the evidence in question.

What to do when facing a motion in limine?

If you’re facing a motion in limine, pay attention to the evidence opposing counsel presents— it could open the door to the excluded evidence. Alternatively, if you have had a motion in limine granted, prepare your own case with attention to the line between your evidence and the evidence you wish to have excluded so that you do not inadvertently ...

What is an objection to the admissibility of evidence?

Objections to the admissibility of evidence—including prejudicial or irrelevant evidence—are usually made when the evidence is offered at trial. The jury may hear both the question and the witness’s answer before a ruling is made. Though the court may sustain an objection and order the jury to forget or ignore what they just heard, it is a fact of human cognition that jurors cannot completely erase that memory from their minds. When the evidence is particularly inflammatory, the imprint left behind can cause serious damage to jurors’ ability to reach a fair conclusion.

Why do you use a motion in limine?

In such cases, motions in limine can be used to keep this evidence contained. These motions are meant to keep the courtroom’s focus on the issues at hand. Used effectively, motions in limine can be powerful tools in securing a favorable outcome for your client at trial.

How to avoid motion to disqualify?

Two important pre-motion strategies are effective. First, identify and resolve potential conflicts, including both multiple and successive representations, before undertaking a representation or hiring a lateral.

Why do courts differ on how they address motions to disqualify?

Courts differ on how they address motions to disqualify, especially because such motions are at times simply a litigation tactic by an opposing party in search of a strategic advantage.3 Additionally, courts are usually reluctant to interfere with a client’s choice of counsel unless the conflict is real and there are few options other than to grant disqualification.4

What is considered in a motion to disqualify in Colorado?

In assessing motions to disqualify based on conflicts, Colorado courts also consider (1) a client’s preference for a particular counsel, (2) the client’s right to confidentiality in communications with his or her attorney, (3) the integrity of the judicial process, and (4) the nature of the particular conflict of interest involved.10 Below are some important concepts that have emerged in the context of motions to disqualify.11

What is the duty of loyalty in a disqualifying former client?

Typically, a former client seeking to disqualify a former attorney from representing an opposing party must identify specific, cogent information that the attorney possesses and show that the information is confidential and implicates the duty of loyalty.

What is the best defense to a motion to disqualify?

Where a conflict exists, an effective written consent is the best defense to a motion to disqualify. Second, take effective steps to mitigate, if not eliminate, risks that a former client’s confidences and secrets might be accessible to attorneys working on a matter involving the former client. Increasingly, courts nationwide have recognized ...

What is worse for an attorney than getting a new big matter?

Few things are worse for an attorney than getting a new big matter, starting work on it, and then facing a motion to disqualify. At that point, the attorney is put in the awkward position of either explaining to the client why he or she should pay more money to keep the attorney, or absorbing the fees associated with defending ...

Is it rare to have a disqualification motion?

Motions to disqualify are far from rare occurrences. In recent months, a number of high-profile disqualification motions have been reported .1 Many disqualification motions are well-founded. Others are nothing more than a litigation tactic, forcing attorneys to scramble to protect valued client relationships.

How long does a lawyer have to submit a daily submission?

Now consider that, at least according to the California State Bar and nearly every state and federal court in the country, most lawyers' daily time submissions contain anywhere from thirty minutes to three hours of time billed to clients that was not actually worked.

What percentage of lawyers are block billed?

Approximately 90 percent of law firm clients who are billed on an hourly basis are “block billed.” Block billing is an accounting technique whereby lawyers aggregate multiple smaller tasks into a single "block" entry, for which a single time value is assigned. In theory, the total time charged equals the sum of the duration of each discrete task. For example, after spending five minutes on a phone call, 35 minutes revising a junior associate’s draft motion and three minutes dashing off a brief e-mail to the client, the attorney should bill the client for seven-tenths of an hour. Unfortunately, in far too many cases, the final block-billed entry for these tasks will end up looking something like this:

When billing by the hour, should they not use increments greater than one-tenth of an hour?

When lawyers bill by the hour, they should never use increments greater than one-tenth of an hour. Glover v. Heart of America Mgmt. Co., 1999 WL 540895 at *7, fn 8 (D. Kan 1999) (quarter hour billing... has been virtually extinct for some time"). Yet it appears that anywhere from five to ten percent of lawyers bill clients in unacceptably large chunks of time - usually in one hour or half-hour increments. This is neither honest nor reasonable, and constitutes outright billing fraud, as courts have held that “professional persons who charge their clients fees in excess of $80.00 per hour, based upon time spent, cannot, in all honesty and reasonableness, charge their clients for increments in excess of one tenth of an hour.” In re Tom Carter Enterprises, Inc., 55 B.R. 548, 549 (Bankr. C.D. Cal. 1985). By way of illustration, consider these billing entries from a $750 per hour partner:

Do lawyers double bill?

However, two-thirds of lawyers admit that "bill padding" occurs at their firms, one-third of lawyers openly double-bill clients, and more than half of all lawyers perform work not because the client or case demands it, but because the lawyer needs to bill more hours. See William G. Ross, Professor of Law, Samford University, Attorney Billing Ethics Survey (2006-2007). Clearly, clients must be proactive when it comes keeping billable hour inflation under control. This article summarizes some of the most common billing practices that lead to billable hour inflation.

Do law firms charge for secretarial work?

But firms should never charge clients for secretarial work, clerical work or word processing.

How to bring a reconsideration motion?

Before bringing any motion for reconsideration, take a piece of paper and write out a description of the factual matter that was not available at the time of the original motion, along with the date that it was acquired, the source, and -- most importantly -- the specific reason that it could not be presented to the court in the first instance (the original motion). If you don't have something substantive and objectively NEWLY ACQUIRED, do not bring the motion. What's more, if you don't have a darn good reason for not having been capable of providing the newly-acquired information info at the original motion hearing, don't bring the motion.

What happens if you don't bring a motion?

If you don't have something substantive and objectively NEWLY ACQUIRED, do not bring the motion. What's more, if you don't have a darn good reason for not having been capable of providing the newly-acquired information info at the original motion hearing, don't bring the motion. You may have appeal rights.

Can a motion for reconsideration be vacated?

Equally important, any order or benefit secured by a motion not complying with the standards for motions for reconsideration can be vacated on that showing alone. The fact is that a Motion for Reconsideration is not intended to operate as a Motion for Re-Hearing.

Do improper motions work?

Most courts will acknowledge that almost none of these improper and unsound motions are granted; many are not given even a passing consideration by the court. They don't work; they annoy and alienate the court; and they put the moving party at risk of sanctions, opposing party attorney fees, and contempt penalties.

Can you appeal a family law case?

You may have appeal rights. Or, in family law matters in particular, the court may have reserved jurisdiction and you may have rights to request a modification for reasons of changed circumstances. But very rarely is there a sound basis for asking the court to re-do its work -- and that is exactly what a motion for reconsideration asks for.

Is a motion for reconsideration successful?

Motions for reconsideration are very rarely successful or even useful in any meaningful way . Courts do not welcome or favor them. In facts, courts sometimes acknowledge at attorney seminars and training sessions that one of the reasons they find "pro per" (self-represented) cases so burdensome and wearying is because of the tendency of the pro per litigant to create extra unnecessary work for the court and its staff by routinely and improperly bringing motions for reconsideration.

2 attorney answers

Dear Richmond - A lawyer cannot really "just file a motion" and then not represent the client. So your question is better posed as what would the cost be to retain a lawyer to represent me in a case to overturn a wrongfully-obtained judgment.

Mark Steven Paullin

Dear Richmond - A lawyer cannot really "just file a motion" and then not represent the client. So your question is better posed as what would the cost be to retain a lawyer to represent me in a case to overturn a wrongfully-obtained judgment.