What You Need to Know About Motion Practice You Probably Learned in Kindergarten

We've all heard of the poem: "All I Really Need to Know I Learned in Kindergarten." Well the same Kindergarten lessons should apply to how to navigate your litigation through motion practice a fundamental tool of litigation.

What is a Motion in court?

Courts rarely act on their own so it is up to the parties and sometimes non-parties to move a matter along through the litigation process. If the parties disagree on what tasks need to be done, or how they should get done, the primary tool for solving this disagreement is a motion. Sometimes the parties agree on a task and even that might require a motion, albeit unopposed.

A motion is no different than raising your hand in class; it's a way to get the Court's attention a request for the Court to decide something. The party that makes this request is called the "moving party" or "movant" and is said to have "moved the Court." The other party (or parties) not making the request is called the "non-moving party" or the "non-movant." The moving party has the burden to explain why the Court should resolve the motion and do so in the manner requested. The non-moving party challenges these arguments.

Why file a Motion?

Well, the answer really depends. Are you the Plaintiff looking to enforce some early rights or stop a party from using say your patent? Or are you a Defendant trying to dismiss the case early? Maybe both parties want to file motions, as in the middle of the case or as the case progresses to trial.

Finally, just because you can file a motion does not always mean you should. In theory, a party could file dozens of motions throughout the case. It is essential in every case to weigh the strategy of the motion against the overall case strategy, as well as how the Court might react to such as motion. Again, what we learned in Kindergarten is important here; being patient is essential to motion practice, and sometimes the best thing to do is nothing.

Motions can arise throughout the litigation, so our discussion breaks them up in the order in which they are likely to arise in a case: Early, Middle, and Trial.

Early Motions: Some motions will arise towards the beginning of a litigation matter. These motions are frequently related to the complaint or other foundational matters in your litigation.

For example, in complex cases (like patent cases) it is common for defendants to request an extension of the deadline to respond to a complaint. This is a simple request and is almost always granted. However, the deadline will not be extended until one or more parties files a motion for extension and the court grants it. Another example relates to attorney admission to practice in a particular court. For example, most Federal District Courts will permit an attorney admitted to practice in a different district to represent a party before it. However, the Court will generally require an attorney to file a motion for admission on behalf of the out-of-district attorney.

And while some early motions like these are less exciting and more administrative than many of the others we're discussing, getting them right still matters. Extensions and admissions are often the first opportunity a party has to build a rapport with the Court, and just like in school, first impressions matter.

Not all early motions are routine and some early motions may be some of the most important motions a party files in the case. The below examples outline some early motions that either expand or shrink the complaint.

• Plaintiff's Motion for a Preliminary Injunction: This motion is a request to the Court to temporarily stop a party from doing something until a trial on the full merits occurs. While a complaint might lay out a theory, that theory does not grant a party any immediate rights, and often it takes months or years to get to a point where rights are granted, either through a later motion or trial. This type of motion can grant immediate rights.
• Defendant's Motion to Dismiss: This can take many forms, such as dismissing all or part of the complaint, some or all of the named parties, or for other issues such as improper service, venue, or jurisdictional issues. These types of motions often must be raised early, otherwise the issue is deemed waived. Motions relating to dismissal grounds are powerful in that the case can be dismissed early and before parties incur rising costs.

Mid-Late Case Motions: If a case proceeds past the early motion state, or if there are no early motions filed, the case will typically move into what is called a discovery phase which ends with a dispositive motion deadline. This phase generally relates to the parties gathering information from each other as well as non-parties through the Federal Rules of Civil Procedure, including requests or documents and depositions. Inevitably, in this phase, parties will dispute a number of issues and there are likely to be at least some, and possibly many, motions filed during this period. Some will be related to the discovery itself while others may involve "dispositive" matters.

Discovery motions are largely driven by disagreement over sharing. One common example of such a motion is a motion to compel. These arise when the parties disagree about whether the requesting party is entitled to the requested material. The Court's ruling on the motion to compel will determine whether the producing party has to allow the discovery. Other examples of discovery motions are motions for protective order and motions to strike. The former is just that, asking the court to protect your client from doing something, such as not producing certain documents or not allowing a certain deposition. The latter is also self-explanatory: it asks the court to strike something from the record, usually for failing to follow rules. No matter what type of motion comes up during the discovery phase, it will likely arise because of a disagreement. But kindness and respect should not be overlooked here, these are fundamental in motion practice, both with the adversary and the court, particularly if the motion does not go your way.

As discovery ends the parties will usually have a deadline to file dispositive motions. Dispositive (and partially dispositive) just means that the Court's ruling on the motion has the potential to decide the outcome of the case, or at least part of it. The primary dispositive motions during the pendency of the case are motions for summary judgment. These motions essentially ask the Court to decide the case (or an issue) for the moving party without trial because the evidence obtained during discovery (or lack thereof) makes it impossible for the non-moving party to win.

Trial Phase Motions: As a case approaches and proceeds through trial, another group of motions is likely to appear. Pre-trial and trial motions will often involve evidentiary issues. These motions include motions in limine (pretrial) and evidentiary objections (during trial). These motions seek either to have the court exclude or allow evidence to be presented at trial.

For example, in patent cases there are typically experts. One type of motion in limine is to ask the court to limit an expert's testimony. This is typically referred to as a Daubert motion, named after the famous Supreme Court case Daubert v. Merrill Dow. This motion is filed as trial approaches (and sometimes earlier) and has the potential to seriously impact the other party's presentation of evidence because the motion seeks to exclude an expert witness often critical to the non-moving party's case from testifying. Sometimes, the expert's testimony is a party's only evidence on an issue. In that case, if the testimony is excluded, the other side likely wins that issue (and perhaps even the entire case).

However, not all pre-trial motions carry the same weight. Many (if not most) motions challenging evidence will, at some level, ask the Court to juggle the common issue of weighing under the Federal Rules of Evidence. In short, the Court will be asked to consider whether the evidence sought to be admitted to trial is relevant, and if so, whether it should still be excluded because there is unfair prejudice, confusion of issues, potential to mislead the jury, or other issues that would make admission of evidence not proper. But these questions tend to be subjective and the Court has broad discretion, so making good choices about when and how to raise pre-trial and trial evidentiary motions is especially important.

Finally, as the trial concludes, and after a trial, there are various motions one or both sides would file, typically referred to as post-trial motions and often relating to issues with the jury instructions, verdict and evidence presented at trial. For example, one side may move for Judgment as a Matter of Law (JMOL) after the other side has finished presenting its case. This motion asks the court to decide the case instead of submitting it for a verdict. This motion can be "renewed" after that side receives an adverse verdict. Some other examples of post-trial motions are motions for a new trial, motion for attorneys' fees, motion for costs, motion for injunction.

Remember that when it comes to motions, raise your hands with care and when in doubt fall back on what we learned that first day of Kindergarten.

More questions? Contact the authors or visitFish's Intellectual Property Law Essentials.