A motion is a request for a court to take action on a particular matter. Motions allow parties in a lawsuit to communicate with the court and move the case along. It’s a routine part of a Personal Practice of Law, where you interpret, apply and argue the law throughout your case. When your opponent files a motion, your first instinct might be to respond. You don’t always have to, but when you do, make it as compelling as possible. Here are practical strategies you can use to respond to a motion.
Determine Whether a Response is Needed
Not all motions require a response. Courts don’t look for a response to a motion for an extension of time because it’s not controversial and often automatically granted. In contrast, a motion for reconsideration of a court order has such a low success rate that responding to it is often a waste of time. For other motions, if you care about the outcome and want the court to consider your position, you should absolutely respond. See responding to a motion to dismiss for an example with in-depth information.
Review the Motion
If you decide to respond, review the motion carefully and thoroughly. Identify your opponent’s key arguments and supporting facts. Read the appellate cases, statutes, and other laws cited in support of their argument. Finally, determine what your opponent wants to happen or not happen. This is called the request. If there is a “Wherefore” statement at the end, look for the request there. If not, carefully search for it elsewhere in the motion.
Research and Prepare
Find and read statutes, case law, and other legal authorities dealing with the subject of the motion. Use these to support your arguments and counter your opponent’s argument. Look for opportunities to use the authorities they’ve cited to support your argument. To prepare for oral argument, thoroughly understand the legal principles and precedent involved.
Structure Your Response
When you respond to a motion, be clear and direct about your legal position. Begin with an introduction that summarizes the nature of the motion and states your position. Develop key points to answer every argument your opponent made. Then, present your arguments in a logical sequence. When in doubt about the sequence, use the structure set out by your opponent in their motion. Don’t go off on distracting tangents.
Craft Persuasive Arguments
Analyze your opponent’s assertions, and highlight flaws in their reasoning or any factual inaccuracies. Support every counterargument with well-reasoned analysis and relevant legal authorities, especially case law. Anticipate potential counter-counterarguments and address them preemptively. Formulate a story the judge will find compelling.
Use Clear and Concise Language
Avoid legal jargon. Rather, use plain language to convey complex legal concepts. Present your points in a straightforward manner, using persuasive language. Less is more. Be concise.
Summarize
Your response may be the last thing your judge reads. So it pays to make it as compelling as possible. Your summary should reinforce your main arguments, reiterate the flaws in your opponent’s motion, and emphasize the strength of your points. At the end, write your own “Wherefore” statement asking the court to deny your opponent’s motion, and briefly restate the key reasons why the court or magistrate should rule in your favor.
Responding to a motion requires careful analysis, diligent research, and persuasive writing. By following these guidelines, you can respond effectively to any motion and significantly impact the outcome of your case.
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