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Bad Motion v. Good Motion: Motions to Compel

The Honorable Randy Wilson, a District Judge out of Texas recently had an article in the Advocate juxtaposing two Motions to Compel.

The Bad:

In this motion, the movant gives a background of the dispute and then lists the specific Document categories sought. There are a total of 24 document requests at issue. The movant dutifully lists each request and then quotes the objection made by the respondent. After each request and objection, the movant then includes a paragraph why the requested information is relevant and why the documents should be produced. Many of the objections and arguments are identical and thus writing the motion involves considerable copying and pasting.

While this type of motion is technically correct, it’s not persuasive nor will it catch the judge’s attention. That’s because this format overwhelms the reader/judge. The judge is confronted with page after page of document requests and objections and argument with no effort to organize and group them. Even the most diligent judge will begin to glaze over after a few pages and instruct the lawyers to go work it out.

The Good:

The second motion to compel this week was a pleasure to read because the movant made my job easy. It began essentially the same as the first; it identified the parties and gave a brief statement of facts of the case. However, rather than simply listing and reciting all the requests at issue, the movant lumped and categorized the requests in dispute by inserting this paragraph:

This Court needs to resolve two issues. First, is plaintiff entitled to see defendant’s financial records? This issue affects document request numbers 2, 5, 6, 9, 10, 11, & 12 (attached as Ex. 1). These requests all involve various financial and tax records of defendant. While there are perhaps some potential individual issues among these requests concerning time and scope, the threshold issue remains: is plaintiff entitled to see defendant’s financial records.

Second, defendant has objected to producing any documents concerning communications with customers. This issue affects document request numbers 15-19 and 21 (attached as Ex. 2). Plaintiff contends that communications with customers are critical to defendant’s claims for damages in its counterclaim; defendant generally asserts that such communications are not relevant

Turning to the first issue, production of financial records, these documents are relevant for the following reasons…

The second one makes the Judge’s job easier. It provides an over all blueprint as to how the various requests and objections fit together. It provides the judge a roadmap so that he knows where the motion is going. Judge Wilson actually referred to the latter as “a pleasure to read.” Don’t just dutifully trudge through even a routine motion. Take the time to craft the things you write. Readers can tell the difference.

When was the last time you think a judge picked up a piece of your writing and said that it was a pleasure to read? Don’t you think that a judge might be a bit more inclined to grant your motion if it were?

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Seen at Legal Writing Prof Blog.

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About Keith Lee

I'm the founder and editor of Associate's Mind. I like to write, talk, and think about law, professional development, technology, and whatever else floats my boat. I practice law in Birmingham, AL.

4 comments

  1. One sad but pragmatic concern: The bad motion is done in the more typical fashion, whereas the good motion is better structured, easier to read and substantively more persuasive. Ah, if that was the only concern.

    Many judges get used to the typical way of doing things. That’s how they did it. That’s how most lawyers do it. That’s how it’s done. When someone tries to do it better, or merely differently, the mundane judge reacts badly. It doesn’t say what it’s supposed to say. It’s not “right”. It’s not done properly as far as he’s concerned, and he’s used to seeing the same motion done the same way every time. Denied.

    The moral of the story is “know your audience,” including the judge who prefers normal to better. Better isn’t better if it doesn’t persuade and pervail, even if it’s better in every other way. What makes a motion better is winning it.

    • That is a sad but true statement. One from personal experience I imagine?

      While I don’t have the experience that you do, I would agree that winning is always better. If one has to sacrifice persuasive structure in form and writing, so be it. It’s just unfortunate that the overall manner/quality of legal writing seems to move at a glacial pace if you enjoy clean writing and structured prose/arguments. But my personal feelings aren’t really that relevant, what’s best for our clients is. So if that means “fitting into the mold” to appease a certain judge, then I’m going to hop into that mold with both feet.

  2. That’s been my problem with this as well.

    I’ve written a motion more like the second example. (Plaintiff refuses to answer questions and produce records related to X, therefore plaintiff should be compelled to answer interrogatories 12-15, 17, 19, and 24 and requests for production 5-7).

    Then at a hearing had a judge ask me specifically “now which interrogatories and requests are you seeking to compel again? now what do each of those say?”

    • Haha. LIke SHG indicated above, all the good writing in the world won’t do you any good if the audience isn’t receptive. Unfortunately, the legal profession isn’t exactly known for forward-thinking.

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