10. DRAFTING MOTIONS

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.

B. General format - each motion generally consists of a case caption, a title that briefly identifies the relief sought, a series of numbered paragraphs that explains -- in a logical way -- why you are entitled to that relief, a prayer for relief, a signature block, a certification that a copy of the motion was sent to all other parties, a proposed Order, and sometimes a legal brief.

C. Tips for drafting

1. Lexis/Nexis tips for drafting a summary judgment motion

2. Some solid tips from a legal blogger

3. A nice primer (with a template) for drafting a motion, as provided by the kind people in the State of Delaware

II. TYPES OF MOTIONS

A. Preliminary (Pre-Answer) motions [ONLY CAN BE FILED BY DEFENDANT]

1. Rule 2-322

2. Mandatory motions to dismiss. If not timely made and the answer is filed, these defenses are waived:

(a) lack of jurisdiction over the person,

(b) improper venue,

(c) insufficiency of process, and

(d) insufficiency of service of process.

3. Permissive motions to dismiss. These can be filed any time.

(a) lack of jurisdiction over the subject matter,

(b) failure to state a claim upon which relief can be granted,

(c) failure to join a party under Rule 2-211,

(d) discharge in bankruptcy,

(e) governmental immunity,

4. Other preliminary motions

(a) Motion to Strike

(b) Motion for More Definite Statement

B. "Litigation" motions [MAY BE FILED BY EITHER PARTY]

1. Discovery motions

(a) Protective orders (Rule 2-403)

(b) Discovery failures (Rule 2-432)

2. A couple of other common motions

(a) Motion for Summary Judgment (Rule 2-501) ["MSJ"]

(b) Motion for Judgment (Rule 2-519)

C. Post-Judgment motions

(a) Rule 2-532. Motion for judgment notwithstanding the verdict

(b) Rule 2-533. Motion for new trial

(c) Rule 2-534. Motion to alter or amend a judgment -- Court decision

III. YOUR ASSIGNMENT: DRAFTING A MSJ

A. You (in your capacity as DEFENDANT) should have drafted, "filed" (with your professors) and "served" (on the Plaintiff) a copy of your ANSWER and your DISCOVERY (Interrogatories and Requests for Production of Documents)

B. You will need to presume that you subsequently received complete responses to your discovery from the Plaintiff and that you are very happy with those responses. They all seem VERY favorable to your theory of the case.

C. Based on the content of those responses, you have determined that there is no dispute as to any MATERIAL fact and that you are entitled to judgment as a matter of law. As a result, you will be drafting and filing a MOTION FOR SUMMARY JUDGMENT WITH AN ATTACHED MEMORANDUM. (See below for an example.)

D. Your Motion and Memorandum will need to be in proper legal format (with case caption, numbered paragraphs, prayer for relief, signature block, certificate of mailing, draft Order for the Court to sign, etc.)

E. Your Memorandum will need to contain at least four pages of argument/analysis, and contain at least three (3) unique cases in support of your legal position.

IV. TEMPLATES

A. Preliminary motions: Motion for More Definite Statement

B. Litigation motions

1. Discovery motions

a. Motion to Quash Subpoena

b. Motion for Protective Order

c. Motion for Sanctions

2. Other motions

a. 1. Motion for Summary Judgment with points/authorities

2. Motion for Summary Judgment with Memo

b. Consent Motion to Revise Scheduling Order