A lawyer’s job is not to make things easy for
the judge or the judge’s staff. Rather, a lawyer’s job is to advance the
client’s interest. But it just so happens that 99 percent of the time, these
are one and the same. Helping the judge and staff cut through the
paper and get to your substantive points is almost always good for the
client. Nowhere is this more apparent
than in the simple matter of how you
title motions and related papers.
This must seem, I know, like an
extraordinarily bland topic. But I’ll tell
you that I and my staff spend a whole
lot of time trying to figure out what
your filings are, what to do with them,
and which other filings they go with.
When your titles are unclear or convoluted, you make it more likely that staff
will misfile your briefs or that the judge
will misunderstand them.
If you assume the time a judge has
to spend on your papers is finite—and
that’s a safe assumption—you should
prefer that time be spent on the merits
rather than trying figure out which
brief goes where.
Take a case where two defendants
each file a summary judgment motion. The first is titled “Defendant’s
Motion for Summary Judgment,” and the second is titled “Motion for
Partial Summary Judgment.” Plaintiff then files a “Response to Motion
for Summary Judgment and Cross-Motion for Summary Judgment,”
along with a separate “Response to Motion for Summary Judgment on
the Issue of Wages.” Replies are filed, as well as a response to the cross-motion. And don’t forget the related motions to strike.
This is a nightmare for judicial staff. Unfortunately, our computer
system doesn’t match up responses and replies with motions,
or motions with other motions. It lists filings in chronological order, so staff must search the list and match things manually. When the titles don’t match, or when confusing titles
are used, figuring out which responses and replies go with
which motions can feel like one of those logic puzzles they
put on the LSAT. And the more motions, cross-motions and
related motions pending at the same time, the harder it is.
As with everything you file, the goal is clarity, and clarity
is almost always best served by simplicity. These four rules
Titles should be short. More and more we’re seeing motions
with breathlessly complicated titles. Titles like: “Plaintiff
International Widget Production Corporation, LLC’s Rule
37, Ariz. R. Civ. P. Motion to Compel Production of Highly
Relevant Data Regarding Sales Figures During The Period In
CIVIL PRACTICE POINTERS by Hon. Randall H. Warner
Hon. Randall H. Warner
is an Arizona Superior Court Judge
in Maricopa County.
Question.” How about simply “Motion to
Compel re: Sales Data”?
The motion doesn’t need to state the
movant’s name; that should be clear from
the first few lines of text. Nor does it need
to refer to the rule. And it shouldn’t contain argument or editorializing. The simple
purpose of a title is so the reader can readily
distinguish this 8½ 5 11 stack of captioned
paper from the next. Save the rest for the
A title should be distinct. From time to
time, we get multiple motions with titles
that don’t distinguish them from another.
For example, I may have pending a
“Motion for Summary Judgment,”
“Motion for Partial Summary Judgment”
and “Defendant’s Motion for Summary
Judgment.” This makes it hard to know
how, if at all, the motions address different
topics. It also makes it hard to match up
responses when we start getting things like
“Response to Rule 56 Motion.”
The better practice is either to number
your motions, as lawyers often do with
motions in limine, or add descriptors.
“Motion for Partial Summary Judgment
No. 1” works. “Motion for Partial Sum-
mary Judgment re: Economic Loss Rule”
works. Such titles allow the response to
refer to the motion easily. A distinctive title
also makes it easy to refer to the motion in
Responses and replies should refer to the
exact title of the motion. Nothing is more
frustrating than a response that is titled
in such a way that you can’t figure out
what it responds to. For example, a
response to a “Motion to Dismiss for Lack
of Jurisdiction” should not be called
“Response to Defendant’s Arbitration
Motion,” even if that’s an accurate
description. Again, the purpose of a title is
not to editorialize or argue, but to provide
a clear shorthand for referring to the filing.
The same goes for replies. If you filed
a “Motion to Compel re: Tax Returns,”
then file a “Reply Supporting Motion to
Welcome to a new column that provides tips
When your titles are
from judges on civil practice. If there are
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unclear or convoluted,
you make it more likely
that the judge will
misunderstand your briefs.
—continued on p. 82