With the increasing number of civil cases getting disposed at the pre-trial stage, legal discovery is gaining an important role in litigation. During discovery, parties can make request for production of documents, request for answering interrogatories, and request for admission and deposition. A subopoena helps you to request documents or any other evidence from non parties, however, there may be cases where the parties may object to discovery requests. Court motions help requesting parties to obtain the discovery documents when such objections are made or when you require further discovery. Motion to Compel is one of the first motions likely to be filed during the pre-trial stage and this article provides 7 tips on drafting a really effective Motion to Compel.
Drafting Motion to Compel Effectively
A carefully and tactically drafted motion to compel can be used to meet a variety of litigation ends. A motion to compel has a larger purpose to serve. It often helps in preparing the battlefield for a larger litigation. One of the most important points for the success of a motion to compel is your ability to persuade the judge. Discussed below are some basic pointers that you have to keep in mind while drafting a motion to compel.
- Know the Rule: The first step in drafting an effective motion would be to have a good knowledge of the civil procedure rules, court rules, and standing orders of the judge who will be deciding the motion. Court rule provides detailed information on the form and format of the motions. Therefore, be cautious to read the respective court rules as well.
- Know the Parties: Identify the parties at the beginning of the motion
- Summarize Facts: Include a brief summary of the facts of the case. Be careful not to overstate facts. Include only facts that are relevant.
- Write Effectively: Open the motion with an excellent background. Your writing should persuade the judge to read further. A well organized motion will generally capture the reader’s attention and will help in better understanding the issues.
- Know Your Judge: It is very important to know your judge’s preferences. Some judges stick to traditional procedural formalities. Whereas, some judges entertain motions that are persuasive and help in better understanding the key issues involved in the motion to compel. The two approaches to drafting a motion to compel is discussed below:
Motion to Compel- Technical/Traditional Approach
A motion to compel in the traditional format is fact extensive and technical in nature. This approach provides a brief description of the facts at the beginning followed by a list of document categories requested. After each request, the objection made by the respondent is noted, followed by a paragraph as to relevancy of the requested documents and the reason as to why the document needs to be produced. Many documents in the list are identical and therefore such type of motions involves a lot of copy pasting similar language making the motion voluminous. This format though correct technically can overwhelm the reader. After reading the first few pages, the judge may just skim through the remaining pages and ask the lawyers to work further on the motion.
Motion to Compel- Persuasive Approach
Another approach that is seen is a more organized motion. Here the movant after stating the brief facts organizes all related/similar documents requests into different categories. Then the issue that relates to each category is identified. After that, the opponent’s objection is summarized followed by a reason as to why the requested documents are relevant. This approach helps a judge to better understand the issues governing each document request and is easy to read.
- Quality Check: You have to devote time for effective legal writing. After the draft motion is ready, we often skip the step of reviewing the motion. This may be because you do not have enough time to read the motion again; or you are too tired to read it all over again. Nowadays there are attorney support services equipped with people experienced in legal research and writing. You can benefit from such services by delegating to them the task of editing or reviewing your motion. Alternatively, you can also use such support services for legal drafting and then you can go ahead and do the quality check or final editing.
- Court Order Form: Be sure to include a form of court order. The form should list each document with a check box for grant or deny.
The most effective attack that you can make on your opponent is writing a persuasive motion. While persuasive, crisp, organized and concise writing is generally favored, there may be mundane judges who prefer traditional motion formats. To appease such judges you may have to fit your motion into the traditional mould. Therefore, the rule would be to know your judge and choose the preferred format that is best suited for your situation. The points discussed in this article can help in crafting a motion that will lead you to the path of success.
About the Author
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