Summary. Motions are how a case is shaped, and most fail for reasons unrelated to the merits. This toolkit covers the mechanics that determine outcomes: reading the local rules and standing order before drafting, satisfying meet-and-confer in a way that creates a usable record, structuring a brief so the relief is obvious on page one, and building a record that supports the standard actually applied. It walks the major motion types in the order a case encounters them and closes with the craft questions that separate a persuasive brief from a competent one.

What this toolkit is for, and who should use it

A motion is a request for a specific act by a specific decision-maker who has limited time and a full docket. The lawyers who win motions are usually not the ones with the better cases; they are the ones who made it easy to grant the relief — who told the judge exactly what to sign, showed where in the record each fact lives, and did not ask for more than the rule allows.

This toolkit is organized around federal practice, with notes where state practice diverges. It is written for the associate drafting the brief and the partner deciding whether to file it.

Roadmap at a glance

  1. Before drafting — rules, standing orders, and the decision to file.
  2. Anatomy of a motion.
  3. Rule 12 motions.
  4. Amendment and the pleading contest.
  5. Discovery motions and the meet-and-confer record.
  6. Sanctions, including spoliation.
  7. Summary judgment.
  8. Daubert and in limine.
  9. Emergency and interim relief.
  10. Hearing, submission, and the proposed order.
  11. After the ruling.
  12. Craft.

Stage 1 — Before drafting

Read three documents before you write a sentence: the Federal Rules, the local rules, and the judge's standing order or chambers procedures. The last one governs the details that get motions stricken — page limits, font and spacing, whether a pre-motion conference or a pre-motion letter is required, whether courtesy copies are required, whether a separate statement of facts is required or forbidden, how exhibits must be numbered and filed, and whether the judge wants a proposed order and in what format.

Then decide whether to file at all. Ask what the motion realistically achieves, what it costs in fees and in credibility, what it teaches the other side about your theory, and whether the same result is available by agreement. A motion that narrows the case is worth filing; a motion that is a coin flip on a point that will not change the trial is usually not.

Check the timing: the response deadline, the reply deadline, the dispositive motion cutoff in the scheduling order, and whether leave is required.

Resources

Stage 2 — Anatomy of a motion

Every motion package has: a notice of motion where local practice requires it; the motion itself, stating the relief and the grounds; a supporting memorandum; the evidentiary support (declarations, exhibits, deposition excerpts, requests for judicial notice); a proposed order; and a certificate of service and, for discovery motions, a certificate of conferral.

The memorandum should open with an introduction that states the relief and the reason in three sentences. A judge reading page one should know what you want and why it should be granted. Then the standard of review, the facts with a citation for every proposition, the argument organized by the relief sought rather than by the opponent's arguments, and a conclusion that repeats the specific relief.

Cite the record, not your characterization of it. Attach what you cite. Number the paragraphs of declarations. Do not bury a dispositive point on page 22.

Stage 3 — Rule 12 motions

Rule 12(b)(1) — subject matter jurisdiction. A facial attack accepts the allegations; a factual attack permits evidence outside the pleadings. This is where standing lives, and after TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), it is a live issue in many statutory cases.

Rule 12(b)(2), (3), (4), (5) — personal jurisdiction, venue, and process. These are waived if not raised in the first responsive filing, Rule 12(h)(1). Consolidate them.

Rule 12(b)(6) — failure to state a claim. Under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the court disregards legal conclusions and asks whether the well-pleaded facts state a plausible claim. The motion is strongest where an element is missing, a document attached to the complaint contradicts it, or an affirmative defense appears on the face of the pleading.

Rule 12(c) — judgment on the pleadings, after the pleadings close, on the same standard.

Rule 12(e) and 12(f) — more definite statement and motion to strike, both rarely granted and rarely worth the filing.

Consider what a granted motion actually buys. Dismissal with leave to amend often produces a better complaint and a two-month delay. Where the defect is incurable, say so and ask for dismissal with prejudice.

Resources

Stage 4 — Amendment and the pleading contest

Under Rule 15(a), a party may amend once as of right within 21 days after service, or within 21 days after a responsive pleading or a Rule 12 motion. Afterward, leave is required and is given freely when justice requires — denied for undue delay, bad faith, repeated failure to cure, undue prejudice, or futility. Foman v. Davis, 371 U.S. 178 (1962).

After the scheduling order's amendment deadline passes, Rule 16(b)(4)'s good cause standard applies first, and it turns on the diligence of the party seeking amendment. Many motions fail because counsel briefed Rule 15 and ignored Rule 16.

Watch relation back under Rule 15(c) where limitations have run, and the distinct rules for adding a new party.

Stage 5 — Discovery motions and the meet-and-confer record

The conferral requirement is not a formality. Rule 37(a)(1) requires a certification that the movant conferred or attempted to confer in good faith, and local rules often require a specific form — a telephonic or in-person conference, a written summary, or a joint statement of the disputed items.

Build the record deliberately: a letter identifying each request at issue, the deficiency, and the authority; a conference at which positions are narrowed; and a confirming letter documenting what was resolved and what remains. Judges grant motions where the movant obviously tried to avoid filing and deny motions that read like a first communication.

Motions to compel should be organized request by request, with the request, the response, the deficiency, and the argument in a table or in parallel sections. Proportionality under Rule 26(b)(1) is now the frame for every dispute: the importance of the issues, the amount in controversy, the parties' relative access to information, resources, the importance of the discovery, and whether the burden outweighs the likely benefit.

Protective orders under Rule 26(c) require a showing of good cause and specific harm; conclusory assertions of burden fail. For confidentiality, propose a stipulated order with tiers, a challenge procedure, and a provision addressing filing under seal — noting that sealing requires its own showing against the public right of access.

Privilege disputes turn on the log. Produce a log that permits an assessment of the claim without revealing the privileged content, and address clawback under Fed. R. Evid. 502(d), which is the cheapest protection available and is underused. See Attorney-Client Privilege and Work Product for Businesses.

Resources

Stage 6 — Sanctions, including spoliation

Rule 37(b) sanctions follow violation of a discovery order and range from fee-shifting through evidence preclusion to default or dismissal. Rule 37(c)(1) excludes information not properly disclosed unless the failure was substantially justified or harmless — a powerful and underused motion, because it needs no order to have been violated.

Rule 37(e) governs lost electronically stored information that should have been preserved: on a finding of prejudice, measures no greater than necessary to cure it; and only on a finding of intent to deprive may the court presume the information was unfavorable, instruct the jury it may or must so presume, or dismiss or enter default. The intent finding is the whole fight in most spoliation motions.

Rule 11 requires a 21-day safe harbor: serve the motion, wait, then file. Filing without serving first is fatal. Section 1927 and the court's inherent power reach vexatious conduct and bad faith, with the inherent-power route requiring a specific bad-faith finding, Chambers v. NASCO, Inc., 501 U.S. 32 (1991).

Resources

Stage 7 — Summary judgment

Rule 56 asks whether there is a genuine dispute of material fact and whether the movant is entitled to judgment as a matter of law. The trilogy — Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) — supplies the framework: the movant identifies the absence of evidence on an element for which the nonmovant bears the burden, and the nonmovant must then come forward with admissible evidence creating a genuine dispute.

The statement of undisputed facts is the motion. Each fact must be a single, simple proposition supported by a specific record citation. A statement padded with argument or with facts that are not material invites the response that defeats it. Where local rules require the opposing party to respond paragraph by paragraph, failure to controvert can deem the fact admitted.

Address admissibility: an affidavit must be made on personal knowledge and set out facts admissible in evidence, Rule 56(c)(4). Unauthenticated documents, hearsay, and expert opinions outside a served report are all vulnerable.

For a nonmovant who needs discovery, Rule 56(d) requires an affidavit specifying the facts sought, why they are unavailable, and how they would preclude summary judgment. A generalized request for more time fails.

Consider partial summary judgment on an element, a defense, or damages, which is often more achievable and just as useful.

Resources

Stage 8 — Daubert and in limine

Daubert motions test qualification, reliability, and fit under Fed. R. Evid. 702, as amended to emphasize that the proponent must establish each requirement by a preponderance and that the opinion must reflect a reliable application of the methodology to the facts. Attack the methodology and its application; complaints about the expert's conclusions usually go to weight.

In limine motions exclude prejudicial material before it is heard. Ask for a companion instruction that counsel not reference the excluded matter without approaching the bench, and confirm whether the ruling is definitive for preservation purposes under Rule 103(b).

Resources

Stage 9 — Emergency and interim relief

For a TRO or preliminary injunction, satisfy Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008): likelihood of success, irreparable harm, balance of equities, and the public interest. Address the Rule 65(c) security, the specificity requirements of Rule 65(d), and the notice requirements for ex parte relief. See Preliminary Injunction and TRO Application Checklist.

For emergency relief generally, call chambers, follow the judge's emergency procedures exactly, and be candid about the timeline and about what the movant knew and when. Manufactured emergencies are remembered.

Stage 10 — Hearing, submission, and the proposed order

Prepare for oral argument by identifying the two questions the judge is most likely to ask and the answer to each in one sentence. Know your record cold. Concede what should be conceded — a lawyer who concedes an unwinnable point buys credibility on the winnable one.

Submit a proposed order that grants precisely the relief requested and no more. Judges sign orders that are ready to sign. For discovery relief, specify the documents, the deadline, and the consequence of non-compliance.

Follow up on supplemental authority promptly under the local rule, in the permitted form, without argument.

Stage 11 — After the ruling

Read the order carefully for what it actually decided and what it left open. Calendar every deadline it creates. Comply immediately and completely with any order compelling production — partial compliance is the predicate for the sanctions motion that follows.

Reconsideration is available on narrow grounds: an intervening change in law, new evidence unavailable earlier, or clear error and manifest injustice. It is not a second brief, and filing one that reargues the motion damages credibility for the rest of the case. Consider instead whether the ruling is a candidate for certification under 28 U.S.C. § 1292(b), for Rule 54(b) entry of partial final judgment, or for preservation until final judgment.

Stage 12 — Craft

  • Lead with the answer. The first paragraph states what you want and the single best reason.
  • One point per heading, written as a proposition rather than a label.
  • Short sentences and short paragraphs. Motions are read quickly.
  • Every fact cited. Every citation accurate. Verify each quotation and each case's current validity before filing — an inaccurate citation costs more credibility than any argument gains.
  • Address the bad authority yourself, in your own framing.
  • Never overstate the record. A judge who finds one exaggeration reads the rest of the brief differently.
  • Respect the page limit rather than seeking leave to exceed it; brevity reads as confidence.
  • Proofread the proposed order as carefully as the brief. It is the document that becomes law in your case.

Stage 13 — Worked example: one dispute, four motions

A distributor sues a manufacturer for terminating a supply agreement. Tracking the motions shows how the pieces connect.

The Rule 12 motion. The complaint pleads breach of contract, breach of the implied covenant, tortious interference, and a state unfair-practices claim. The manufacturer moves to dismiss the tort claims as duplicative of the contract claim under the economic loss rule and the statutory claim for failure to plead the required elements. It does not move on the contract claim, which is plainly stated — filing a motion that will obviously be denied costs credibility on the two that will not. The court dismisses the interference claim with prejudice and the statutory claim with leave to amend. The case narrows before a dollar of discovery is spent.

The discovery motion. The distributor serves 47 requests for production. The manufacturer objects to 31. Counsel exchange a deficiency letter identifying each request, confer by telephone, and narrow the dispute to six requests about communications with a competing distributor. The motion to compel addresses those six, request by request, with the proportionality factors applied to each. Because the record shows genuine narrowing, the court grants four and denies two — an outcome unavailable to a movant who filed on all 31.

The sanctions motion. The manufacturer's regional manager deleted a text thread after the complaint was served. The distributor moves under Rule 37(e). It can show the messages should have been preserved, that they cannot be restored, and that it is prejudiced. It cannot show intent to deprive, so the court orders a curative measure — permitting evidence and argument about the deletion — rather than an adverse-inference instruction. The distinction between prejudice and intent decides the motion, and it is the finding both sides should have briefed hardest.

The summary judgment motion. The manufacturer moves on the contract claim, arguing the agreement permitted termination without cause on 90 days' notice. Its statement of undisputed facts has eleven paragraphs, each a single proposition with a record citation to the agreement, the notice letter, and the deposition admission that the letter was received. The distributor's opposition raises a course-of-dealing argument supported by a declaration from its president. The court denies the motion, finding a genuine dispute on whether the parties' practice modified the notice requirement — but grants partial summary judgment limiting damages to the notice period, which is what the manufacturer actually needed for settlement leverage.

The lesson runs through all four: the relief that is achievable is usually narrower than the relief that is requested, and the lawyer who asks for the achievable thing gets it.

Resources

Master resource index

Articles

Checklists

Related toolkits

External and primary sources

This toolkit is educational and not legal advice. Motion practice is governed by the rules of the forum, the local rules, and the assigned judge's procedures. Read all three before filing.