Legal writing–crafting motions and pleadings–can be a lesson in frustration. Yet, as the only opportunity to speak to the judge, proper motions can be a case-saver for self-represented litigants. If you’re prepared to take on this challenge, here are a few pointers to get you started.
Legal writing is complex but not rocket science.
The most important thing to know about motions and other legal writing is that they’re formulas–not rocket science. This does not mean they’re easy to write, but it does mean the judge is looking for your writings to be done in a particular way. If you’re lucky, you’ll have a a perfect motion or pleading form available to you from the court. Simply complete it as instructed and turn it in. As the case progresses, however, forms may not be useful or appropriate for what you need. At some point, you’ll need to do your own legal writing from scratch.
Be sure all necessary components of a motion are present.
Motions are not uniform, but there are some basics that every one should contain.
- The caption at the top should include the name of the court, all plaintiffs and defendants, and the court’s docket number, if assigned.
- The title underneath the caption should state the name of the motion, such as “Plaintiff’s Motion for Summary Judgment”.
- The opening line is like a greeting or introduction and starts with something like “Comes now…” or similar language.
- The body states the allegations or defenses within the motion and contains case law, facts and statutes.
- Use the closing lines to state what you desire the court to do.
- Include the date at the end of the closing lines.
- Follow the date with a signature and your contact information.
- The certificate of service asserts that all parties in the action have been served with the motion. It lists the names and addresses of the other parties or their attorneys.
- Include appendices where necessary
File the right pleading or motion at the right stage of the litigation.
A Motion to Dismiss is good to file if you’re a defendant, but it’s important that it be filed at the appropriate stage in the process. For instance, if you haven’t responded to or answered a complaint, the Motion to Dismiss may be premature and summarily denied. Then, it may be too late to answer. How do I know? Because in my learn-as-you-go approach to litigation, I almost made the mistake of trying to dismiss a case before responding to the complaint.
Know the due date, and give yourself time to meet it.
There’s nothing like a missed due date to ruin a case. Too many pro se litigants find themselves on the losing end of a lawsuit because they missed a due date–sometimes by a mere day or so. Where courts are often lenient in the writing of a pro se pleading or motion, they are less so with untimely filing of them. This strict adherence to a statute of limitations for pleadings and motions has saved many a lawyer and sank the case for numerous pro se litigants. So, know exactly when your pleading or motion is due and give yourself ample time to write it. A plan to file it an hour before the deadline is not a good idea. What if you get stuck in traffic? A plan to file it the day before is better. Do as best you can with the pleading or motion, but be in the clerk’s office to file it ahead of schedule.
Helpful links on this topic
Litigation Milestones–Our own “Litigation Milestones” page has links to sample pleadings and motions for various stages in the litigation process.
How to Prepare a Civil Motion (.pdf)–The State of Delaware has an excellent online document about preparing civil motions. It’s specific to Delaware, but the core elements of a motion are present. The document includes several sample motions, a sample notice, and a sample order.
Motion Samples Book — The Central California Appellate Program has a huge number of sample motions. They are specific to California, but again, the core elements of a pleading are present.