Chapter 12: Pretrial

A motion is any request to a judge, arbitrator, or administrative law judge for an order or relief — and this chapter lays out the procedural package (notice, motion, memorandum, affidavits, proposed order), the dispositive-versus-nondispositive distinction, and the long-term motion strategies that resolve many cases without trial.

Chapter 12

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If you are going to play the game properly, you’d better know every rule.

Barbara Jordan

§ 12.1 Scope of Motion Practice

§ 12.1.1 Introduction

Motions play a vital role in civil cases. Motions may result in the termination of a case without a trial or hearing or may cause the parties to agree on a settlement. Parties may benefit or be disadvantaged from the outcome of a motion. This Chapter addresses the procedural, strategic, substantive, and tactical uses of pretrial and prehearing motions.

A motion is any request to a judge, arbitrator, or administrative law judge (ALJ) for an order or relief. This definition has support in Fed. R. Civ. P. 7(b) and various state rules, which apply to all such requests. In arbitral forums, a motion may be called a request; and in administrative and some judicial proceedings, a motion may be designated a petition. Motions comprise applications for judicial, arbitral, or administrative relief or action, including entreaties to a clerk or administrator. In this Chapter, we will commonly refer to all requests as motions, however denominated in various state and federal civil proceedings.

§ 12.1.2 Procedure

Although some motions have additional requirements, almost all pretrial and prehearing motions require this procedural package:

A written notice of motion, setting forth the time and place of the hearing or determination.

The motion itself, explaining the grounds and relief sought.

A supporting memorandum of law, which may be quite brief or, if lengthy, subject to a page limitation.

One or more affidavits or declarations (unless no facts need be established), with any relevant exhibits.

A proposed order that states specifically the relief the party wants the judge, arbitrator, or ALJ to grant.

These documents may be required by rule or by best practice. They each serve either an informative or essential purpose to obtain a favorable ruling. The exact content of some of the documents may vary depending on the procedures. For example, in many jurisdictions the movant will need to secure a hearing date prior to filing and serving the motion, while in other forums the motion will ordinarily be decided without a hearing or oral argument by counsel.

Courts use a variety of formats to schedule motion hearings. Many hold regular motion days and schedule motions for hearing at the next available day and time. Some judges schedule motion hearings at hourly intervals. Some courts calendar all motion hearings for the same time, resulting in a half-day crowded courtroom that saves judicial resources at the cost of attorney time and attendant expenses. Other tribunals schedule motions on an ad hoc basis. Virtual motion hearings conducted remotely are likely to be scheduled at set times.

In arbitration proceedings, motions may be scheduled for a timely hearing or may be decided on the documents by a date certain set by the administrator or arbitrator. In administrative hearings, the process may be similar to either judicial or arbitral proceedings.

Dispositive motions determine the merits of claims and defenses, and usually involve a full hearing. These motions often result in final orders that are immediately appealable. Nondispositive motions generally determine procedural issues or matters not involving the outcome of the case, and can be decided without a hearing. These motion results are generally interlocutory and cannot be reviewed on appeal until the merits of the case are decided.

On appeal, the standard of review varies according to the nature of the motion and the order. Legal rulings are reviewed on a de novo standard, with the reviewing court deciding whether the supportive legal ground was the correct basis. Factual determinations are usually decided on a clearly erroneous standard and upheld if there exist reasonable facts to support the result. Other procedural and discretionary decisions are deferentially reviewed on appeal according to an abuse of discretion standard.

§ 12.1.3 Motion Strategies

At the outset of a civil case, counsel should adopt a long-term strategic perspective by:

Predicting the overall case proceedings.

Anticipating likely maneuvers by the opposition and potential counter reactions.

Forecasting potential motions by each side.

Assessing whether specific motions need to be brought or should be opposed.

Planning motion timing and tactics.

Undoubtedly, this master plan will change throughout the course of the case. But, it’s essential nonetheless to have a plan.

The decision to bring a motion should be made after some initial cost-benefit analysis. If the potential benefits of the motion sufficiently outweigh its certain costs, it should be made, and made well or not at all. A questionable or poorly presented motion conveys an undesirable impression. In this area of procedure, knowing when to refrain can be as valuable as knowing when to go forward.

Motion practice requires both creativity and restraint on the part of attorneys. Although a motion will never be inappropriate simply because it is unprecedented, some motions are unnecessary and nearly frivolous. The spirit of federal and state rules of civil procedure display a strong policy against dilatory motion practice. Restraint is necessary to prevent the overuse of motions, wasted judicial time, and questionable professional conduct.

Motion practice should be a positive and productive part of advocacy with the goal of achieving a favorable outcome. How to best accomplish that objective depends on the facts and law applicable to a case and on making smart strategic and tactical decisions. By ascertaining these facets of motion practice and considering the resources of the client, an attorney can make an informed judgment concerning the proper extent and use of motions.

LLMs can enhance motion practice in many ways. For example, GenAI-backed tools can analyze federal and state rules, local provisions, and judicial standing orders to ensure compliance with procedural requirements. These tools can also review prior rulings, including decisions from the assigned judge, to assess how similar motions have been decided and summarize key judicial reasoning. GenAI can also—if connected to a legal database—evaluate the likelihood of success by analyzing past “motions like mine,” including outcomes across all courts (e.g., all federal courts, all state courts), the specific venue, and the presiding judge. From those “decisions like mine,” LLMs can help craft arguments “statistically likely to win.” From those, LLMs can incorporate case-specific facts, align with successful past filings, and structure legal arguments to maximize persuasion. Rather than relying on anecdata (the lawyer’s gut instinct), GenAI can provide a data-driven approach to navigating motion practice more strategically, and improve its chances of success.

§ 12.2 Mechanics of Motion Practice

§ 12.2.1 Form of Motion

This section focuses on the requirements of motion practice in federal and state courts. Arbitral rules and administrative regulations often parallel judicial system procedures. An advocate contemplating either bringing or defending a motion obviously needs to review the applicable rules, procedures, local provisions, and individual standing orders regulating the use of motions.

Most motions must be made in writing. This is a specific requirement of Fed. R. Civ. P. 7(b)(1)(A), and also a requirement of many state court, arbitration, and administrative rules. This form of documentation commonly provides:

• The opposition with clear notice of the motion.
• The decision maker and the opposing lawyer with information about the grounds for the motion, reasons why it should be granted, and the specific relief sought.
• A summary of the facts and law that support the motion.
• The opposing counsel with an opportunity to prepare a response to the motion.
• A record of the motion for subsequent use and appellate review, if sought.

The form of motions is generally the same for pleadings and other documents filed in a case in both state and federal courts, although a motion is not a pleading. LLMs can assist with the prospects for, the availability of, and the remedies sought through motions. The applicable procedural rules shape the format and content of motions. And providing that court-mandated format to the LLM—even as a blank form with brackets (as below)—will ensure that the LLM drafts in that format. This is called “one shot prompting,” essentially telling the LLM: “Make your output look like this.” Then verify.

Fed. R. Civ. P. 7(b)(1) states that a request for a court order shall state with particularity supporting grounds and the order sought. Fed. R. Civ. P. 7(b)(2) requires motions to comply with the requirements of the rules for captions, signing, and all other matters of form. Fed. R. Civ. P. 10(a) requires a motion to be headed by a caption setting forth the name of the court, the title of the action, the court file number, and a designation of the type of document it is (such as “Motion to Compel Arbitration.”) Alternative examples of motion forms follow.

Alternative Form A

Able Baker,

Plaintiff

Civil Action No. 00001

v.

Motion for Relief Sought

Charlie Dog,

Defendant

Plaintiff/Defendant [Name of party] moves this Court pursuant to Fed.R.Civ.P. _______ to [describe specific relief sought].

The grounds for this motion include: [describe with particularity].

This motion is based on the files, records, proceedings, affidavit of [party/witness/attorney], the [any other sources], the attached memorandum of law, proposed order [and oral and documentary evidence to be presented at the hearing on the motion (if necessary or preferred)].

Laura Lawyer 123 Barristers Lane Advocata, Nirvana 89011 702–333–4444 lawyer@​net.​com Attorney No. 10111

Alternative Form B

Able Baker,

Claimant

Forum Case No. 00001

v.

Request for Relief Sought

Charlie Dog,

Respondent

The [Name of party] respectfully requests the following relief:

1. [Describe the request and state the relief sought.]

2. [Describe the grounds with particularity and any additional reasons.]

Larry Lawyer 123 Solicitors Lane Advocacy, Paradise 57783 605–333–4444 lawyer@​adr.​com Attorney No. 456789

Fed. R. Civ. P. 11(a) and similar state rules require a motion to be signed by an attorney of record, or if a party is not represented by an attorney, by the party. The signature should be accompanied by the signer’s office address, phone numbers, email address, and lawyer’s bar admission number. The signature operates as a certification that the motion is made in good faith and with sufficient grounds.

Fed. R. Civ. P. 10(c) permits adoption by reference of any statements made in pleadings or motions and included in documents attached to a motion. And, it may be preferable to incorporate any lengthy portions or entire documents by reference. Or, counsel can provide duplicates of material as attachments to the motion or memorandum for the convenience of the decision maker and opposing lawyer.

An important requirement for the content of motions is the provision of Fed. R. Civ. P. 7(b)(1) that requires motions to “state with particularity the grounds for seeking the order and state the relief sought.” Courts have held that this requirement may be met by “reasonable specification” of such grounds.^[1]^ In an instructive case on the adequacy of the statement of motion ground, the court was confronted with a motion for a new trial. The motion stated as grounds the following, and the court found that the motion was deficient for not stating the grounds sufficiently:

The verdict was inadequate.

The learned trial judge erred on the law.

The learned trial judge erred in rulings on the evidence.

The learned trial judge erred in the charge to the jury.

The charge of the learned trial judge to the jury was prejudicial to the plaintiffs.^[2]^

The movant apparently confused the need to be concise with saying nothing. Although the court did not state specifically what would have been minimally sufficient, it is clear that a more appropriate statement of the motion would have been as follows:

1. The verdict was insufficient as a matter of law, and reflects passion and prejudice on the part of the jury.

2. The trial judge erred on the law in the following separate actions:

a. In dismissing plaintiff’s claim, contained in Count I of the complaint, for strict liability in tort;

b. In refusing to submit the issue of punitive damages to the jury; and

c. In permitting defendant’s counsel to argue lack of insurance to the jury.

3. The court erred in ruling on the evidence by:

a. Permitting defendant to offer evidence of plaintiff’s driving record;

b. Refusing to receive plaintiff’s proffered evidence of defendant’s severe drug problems; and

c. Admitting defendant’s testimony that defendant was not insured.

4. The court erred in its charge to the jury by stating that the plaintiff had the burden of proving the absence of negligence, and further, in refusing to give plaintiff’s requested instructions numbered 5, 6, and 7.

Requesting a court to take action with a letter or email is not acceptable as a motion. Even if the ethical concern for ex parte communication is met by providing copies to all counsel, informal correspondence should not be used to request relief.^[3]^ Judges commonly disapprove of such requests and may enter an order highly critical of the lawyer sending them.^[4]^ Arbitrators and administrative judges may have similar reactions to informal contacts.

§ 12.2.2 Notice of Motion

Every written court motion must be accompanied by a written notice of hearing. Fed. R. Civ. P. 6(c) requires that such written notice be served and filed with a motion. The notice of hearing gives the opposing parties notification that a motion is being submitted to the designated forum and often provides information about the deadline for responding to the motion. In many tribunals, the notice also contains the motion hearing date obtained by the moving party from the tribunal. In other forums, the movant informs the opponents of a date by which a response is due, and the tribunal schedules the date and time for the hearing notifying all parties. Typical notices of motion follow.

NOTICE OF MOTION

Able Baker,

Plaintiff

Civil Action No. 00001

v.

Notice of Motion

Charlie Dog,

Defendant

To: [Name and address of attorney], Attorney for _______

PLEASE TAKE NOTICE that Plaintiff/Defendant _______ will bring the attached/following motion on for hearing before this Court at [Courthouse address] in Room _______ on _____, 20, at __ o’clock __.m., or as soon thereafter as counsel may be heard.

Laura Lawyer 123 Barristers Lane Advocata, Nirvana 89011 702–333–4444 lawyer@​net.​com Attorney No. 10111

The notice of motion may be combined with the motion in a single document bearing a single caption. In that case, the document is, logically enough, called a “Notice of Motion and Motion.”

NOTICE OF MOTION AND MOTION

Able Baker,

Plaintiff

Civil Action No. 00001

v.

Notice of Motion and Motion

Charlie Dog,

Defendant

To: [Name and address of attorney], Attorney for [Party]

PLEASE TAKE NOTICE that the undersigned will move this Court in Room _______ at [Courthouse address] on the _______ day of _____, 20, at _______ __.m., or as soon thereafter as counsel can be heard, for [state the relief sought] on the ground [state with particularity].

Larry Lawyer 123 Solicitors Lane Advocacy, Paradise 57783 605–333–4444 lawyer@​adr.​com Attorney No. 456789

You may have noticed that the rules contemplate that motions must be written, but not all such requests. And that is because most state rules and Fed. R. Civ. P. 7(b)(1)(A) permit oral or “speaking” motions in two situations: if made “during a hearing or trial” (which is common) or if a particular rule specifically provides that a motion may be made ex parte (which is highly unusual).

The former situation is easy to understand and occurs frequently during trials. Courts have specifically recognized that the type of “hearing” at which a non-written or “speaking” motion may be presented is one at which a verbatim recording is made.^[5]^ The exception for a “hearing” contemplates an evidentiary hearing in which objections or motions to exclude evidence, for limiting instructions, for a mistrial, or for similar relief are necessary. If there is no need for a spontaneous motion, or if the event precipitating a motion is one that has been known for some period of time, the court will not permit the motion to be made orally. Oral motions may also be made as appropriate in arbitrations and administrative cases.

§ 12.2.3 Service of Motion

All motions must be served on all parties to an action, and good practice also requires that the movant serve every party. [Fed. R. Civ. P. 5](https://www.westlaw.com/Document/NDEC713D0B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NDEC713D0B95F11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) requires service of all motions except those that may be heard ex parte. Another exception to this rule applies to parties who, though named in the action, are in default for failing to appear in the action. See Fed. R. Civ. P. 5(a)(2) & 55. These provisions apply only to parties who have never appeared in the action, not to a party who does not appear at some proceeding or who does not respond to a motion or notice.

Service of motions is different from service of process, which is generally subject to more stringent requirements since service of process (governed by Federal Rule 4) affects the very commencement of the action and the exercise of judicial power over a defendant. For motions, Rule 5 governs in federal court, with similar rules in state courts. Fed. R. Civ. P. 5(b)(1) requires that the motion be served on the attorney once a party has appeared through an attorney. Service on the party, once an appearance has been made on behalf of that party by a lawyer, is not proper and is likely ineffectual. And so, service will usually be made on the attorney who has appeared for a party. If the party has not appeared through counsel, and is not yet in default, or if the party has appeared pro se, the party may be served in accord with the rules for service of the initial summons and complaint or the rules applicable to the motion.

Service of the documents is normally made either by private delivery or postal mail to the attorney or party at the address of record, or possibly to their email address. Service by mail is effective at the time of mailing under Fed. R. Civ. P. 5(b)(2)(C), and another method is complete upon delivery to the proper address. If an opposing party is served by mail, an extra three days is added to the time to respond to the motion by operation of Fed. R. Civ. P. 6(d). The timing of the receipt needs to provide the opposing party sufficient time before a scheduled hearing.

Electronic filing and service is common in federal and many state courts, making service easier. In federal courts using CM/ECF electronic filing systems, filing results in simultaneous service on all registered users associated with the case. The filing party need only serve non-registered users by traditional means.

Service of motion documents in arbitrations and administrative cases may parallel court processes. Email exchanges or other delivery methods may be used in arbitrations and administrative actions as authorized by specific rules.

A motion is made when it is served, not when it is filed. And so, it is necessary that service take place sufficiently before the hearing that the parties have the period of time permitted by the rules to respond. The rules of the jurisdiction typically determine the minimum notice requirements, which may be as long as 28 days or as short as 5 days.

§ 12.2.4 Supporting Documents

In addition to a written motion and notice of hearing, motions are usually accompanied by other documents, including affidavits, a proposed order, and a memorandum of law. As with other litigation materials, LLMs can assist with the format and content of these motion documents. See § 1.1.2.

Affidavits/Declarations. Affidavits perform a meaningful role in motion practice: they establish an evidentiary basis for facts necessary for the consideration of a motion. Some motions inherently require the submission of affidavits, while other motions either do not require affidavits or may not permit affidavits. A declaration made under penalty of perjury, where permitted, usually constitutes a sufficient alternative, is often designated as an affidavit, and has the same legal effect.

Affidavits may be from a party, a witness, a third person, an expert, or an attorney. All that is normally necessary is that the affiant be competent to testify under the applicable rules of evidence. Affidavits of counsel should not be used to provide facts available from persons who know the information. If an attorney is the only or best witness, then the attorney should submit the affidavit. If the lawyer’s affidavit is the only factual material basis for a claim or defense, the affidavit may result in the opponent bringing a motion to disqualify the lawyer from representation.

Statements in an affidavit may be based on personal knowledge or hearsay, or may be statements of opinion. To the extent that some of the statements do not constitute admissible evidence under the rules of evidence, an opposing party may interpose objections. For this reason, it is frequently prudent for the affidavit to include foundation information so that the affiant’s testimony is both admissible and credible.

) ss.

COUNTY OF WEST )

Zenith Zebra, having been duly sworn on oath (or having duly affirmed) states as follows:

1. I am over the age of 18 and am an appraiser with many years of professional education, training, and experience. I am a member of the American Superstar Appraisers Association, an organization of expert appraisers.

2. In my capacity as an appraiser, I was asked by Able Baker to estimate the value of her Van Gogh painting on loan to Charlie Dog’s private gallery.

3. On March 12, 20XX, I examined the painting at length utilizing my skills, training, and experience.

4. Among other things, I compared the painting to the known market value of the works of Van Gogh and other prominent late Nineteenth Century Paintings.

5. On the basis of this analysis, I concluded, to a reasonable degree of appraiser’s certainty, that the Able Baker painting by Van Gogh (alleged to have been negligently destroyed by Charlie Dog) was worth $50,000,000.

[In some jurisdictions, the convention is to end affidavits with “Further Affiant Sayeth Not.” This surplus language is unnecessary, but may be expected to be included.]

Zenith Zebra

Subscribed and sworn to before me this _______ day of _______, 20 ___.

Because the affidavit functions as sworn testimony, the affiant must appear in person and swear to the affidavit before a notary public. The testimonial aspect of the affidavit means that an affiant may be prosecuted for perjury if the affidavit is made falsely, which prosecution rarely occurs.

A declaration may be used instead of a sworn affidavit, as described previously. Federal courts and many state jurisdictions do not require a notary to witness the signing of a document. In these tribunals, an effective and reliable alternative is a declaration signed by the witness under penalty of perjury that does not require a notary subscription. The inclusion of the sworn statement and the signature of the declarant are sufficient to create a document with the same force and effect as an affidavit. For example, the form of an effective declaration includes a statement: “Zenith Zebra declares under penalty of perjury that the following (or foregoing) is true and correct. . . .”

LLMs can strengthen supporting documents by ensuring that affidavits and declarations align closely with the motion’s legal arguments, reinforcing requested relief. By structuring statements to address the specific causes of action (and the elements required to prove them), GenAI can help attorneys craft precise, persuasive affidavits. These tools can also extract key facts from depositions, documents, and prior filings, summarizing critical testimony while avoiding inconsistencies. Additionally, LLMs can provide precise citations to deposition transcripts, case filings, and other evidence, including page and line numbers. If the LLM is multimodal, accepting audio and video files, the GenAI can even take an oral interview recording, transcribe it, and convert that transcription into a persuasive affidavit or declaration. This isn’t your grandparents’ affidavit-drafting software; today, we’re limited only to our law-based imaginations.

Proposed Order. Many courts and forums require the submission of a proposed order. Even if not required, the submission of a proposed order is extremely helpful to the judge, arbitrator, or ALJ. Most importantly, such an order permits the relief to be phrased in a way that is acceptable (and presumably advantageous) to the prevailing party. Decision makers have a tendency and willingness, once they have decided how to rule, to compose the order issued in the language proposed by the prevailing party.

LLMs can greatly expedite the drafting of proposed orders. Composing proposed orders has historically been at the bottom of an attorney’s to-do list. That’s because proposed orders can be difficult to write; then judges often ignore them, preferring to write their own orders. GenAI can solve both of those problems by quickly generating court-ready documents that align directly with your motion’s arguments. Not only does that reduce attorney workload; it also decreases the likelihood of drafting in vain.

Judges ignore unhelpful, boilerplate orders; they’re more likely to adopt helpful orders. LLM-backed tools can ensure clarity, precision, and enforceability while formatting orders to match the court’s required or preferred style, perhaps even incorporating the judge’s prior language and ruling tendencies. Additionally, LLMs can structure orders to ensure consistency with legal arguments and preventing ambiguities that could weaken enforcement. Rather than providing a boilerplate order that just says that the motion is granted (or denied), LLMs can quickly draft well-structured orders—aligned with your motion—that courts are more likely to accept and adopt.

An order may also be submitted for entry after the decision maker has announced a decision orally. This occurs when an alternative remedy has been suggested or verbally ordered by the judge. The prevailing attorney may volunteer to prepare such an order or may be directed to do so.

Again, GenAI-backed tools can take the hearing’s recording or transcript, quickly converting it to an order. LLMs can also tailor that order to align with your motion’s arguments. A post-hearing order can be readily submitted promptly and successfully.

ORDER GRANTING MOTION

Able Baker,

Order

Charlie Dog,

Defendant

This Court heard the motion of [plaintiff/defendant] for [description of motion] on _____, 20. [Name] appeared as attorney for plaintiff; [Name] appeared as attorney for defendant.

Based on the notice, pleadings, records, and files in this action, on the memoranda of counsel, and on the oral and documentary evidence and arguments presented at the hearing in this matter,

IT IS ORDERED [describe relief].

Date: _______

Judge of District Court

ORDER DENYING MOTION

Able Baker,

Plaintiff

Civil Action No. 00001

v.

Order

Charlie Dog,

Defendant

This Court has considered a motion for [purpose of motion] brought by [plaintiff/defendant]. [Name] appeared on behalf of the plaintiff, and [name] appeared on behalf of the defendant. After reviewing the motion documents and hearing arguments by counsel, this Court [state order].

Date: _______

Judge of District Court

Memoranda or Briefs. Motions should ordinarily be submitted with a written brief, printed memorandum, or summary statement of points and authorities, as required or permitted by the applicable rules or practice. This document provides the legal and factual sources, positions, or explanations supporting the party’s favorable outcome. Most jurisdictions either require or strongly favor this submission, the varied contents of which are described in Chapter 13.

LLMs can expedite drafting of memoranda and briefs—taking the hours-long process of organizing, structuring, and drafting—and initially turning that into minutes. GenAI tools can generate persuasive legal arguments that align with motion objectives by quickly providing the jurisdictional requirements for claims and elements of those claims. If the LLMs is connected to a legal database, it can integrate relevant statutes, procedural rules, and case law, and can help draft content targeted to the needs of a case. Counsel can edit, enhance, and improve its final content.

A motion’s structure comes from the claims and those claims’ elements. Given that structure, GenAI can enhance factual support by extracting key facts from the record, integrating those into the brief. LLMs can identify hot documents, deposition testimony, and discovery responses that slot into each cause of action, as well as each element that proves (or disproves) each cause of action. So LLMs can help slot each fact into its requisite element. By pulling from the record and cross-referencing relevant legal precedents, GenAI can produce memoranda that seamlessly connect facts to law, minimizing inconsistencies and maximizing persuasion.

GenAI’s ability to classify facts and structure briefs around legal claims can fundamentally change how attorneys approach motion practice. Instead of painstakingly and manually organizing discovery materials, lawyers can use LLMs to categorize evidence to specific elements of a claim. By automating this classification process, GenAI can generate an initial draft brief that structures arguments around the required elements, providing attorneys with a solid foundation to refine and finalize their filings. This efficiency allows litigators to focus on strategy and advocacy rather than time-consuming drafting. Lawyers do a lot of thinking; they also do a lot of thunking (drudgery). LLMs can help with both.

Opposing Documents. Jurisdictions commonly require the submission of documents opposing a motion, particularly if the motion is to be decided on the written submissions and not on oral arguments. These documents include a memorandum, necessary affidavits/declarations, and a proposed order. Some forums may not expect opposing documents if the hearing provides a sufficient opportunity for the opposing counsel to object to the motion. Even if responsive documents are not required, they should and may be submitted to provide opposing grounds and to inform the decision maker why the motion should be denied.

There is no need for an opposing party to bring a separate motion seeking to deny the relief sought in the pending motion. Opposing the motion is sufficient to seek its denial. In situations where the party receiving a motion wants relief from the court other than denying the motion, it is necessary to bring a separate motion and follow the appropriate procedures.

LLMs can also help draft well-structured legal arguments that directly counter a motion’s claims. Using GenAI as an aid can ensure logical flow, clarity, and compliance with jurisdiction-specific rules. LLMs can also ideate a range of potential counterarguments, enabling attorneys to review, refine, and select the strongest challenges. Additionally, LLMs that are connected to legal databases can identify relevant statutes, procedural rules, and case law—all while integrating key facts from the record.

Beyond ideation and legal research, GenAI can also generate useful analogies that simplify complex concepts. Humans are innate storytellers, and the best lawyers are storytellers to judges and juries. LLMs can be really good at telling persuasive stories. And just as with the initial motion, if the LLM-backed tools are connected with legal databases, they can locate orders that favor your position—perhaps even from your assigned judge: “Your Honor, this is just like the case you decided last month.”

§ 12.2.5 Local Rules

An important source of additional requirements for handling motions are local rules adopted by many state and federal district courts. These latter rules are authorized by Fed. R. Civ. P. 83 to the extent they do not conflict with the Rules of Civil Procedure. Many of the local rules govern the details of the mechanics of motion practice. For example, local rules may set limits on the timing of the motion and supporting documents, limit the page length of memoranda, or establish other requirements. Judges are typically very devoted to these rules.

A common local rule requires that any opposition to a motion be made in writing within a specified period of time. If opposition documents are not timely submitted, the motion may be treated as uncontested and may be granted by default. In practice, counsel may normally gain extensions of time to respond from either opposing counsel or the court.

In addition to local rules adopted by a court, individual judges, especially federal judges, may have their own rules or “standing orders” applicable to proceedings before them. Obviously, these provisions need to be found and followed as well as the local rules.

§ 12.2.6 Withdrawing Motions

Because motions are usually optional, they may be withdrawn at any time prior to a hearing. Once heard by a judge, arbitrator, or ALJ, the motion may usually only be withdrawn with the consent of the decision maker. There are a few occasions when this permission would not be granted. For example, if it is apparent that a summary judgment motion is being withdrawn because of the likelihood that an order would be entered against the moving party, the decision maker may refuse to permit withdrawal of the motion.

§ 12.2.7 Timing of Motions

In federal courts, Fed. R. Civ. P. 6(c) governs the general timing for advance service of motions. Unless a specific rule concerning a particular motion states otherwise, motions and supporting papers must be served on opposing counsel at least 14 days before the hearing on the motion. By operation of Fed. R. Civ. P. 6(a), all days—including weekends and legal holidays—are counted in computing this 14-day period (although if the 14th day is a weekend or holiday, the deadline would be the following day). Care is required on counting days in state court proceedings. Many state rules contain a provision whereby weekends and holidays are not included in the counted days when the period is shorter than a certain length, such as 7 or 10 days.

Many federal judges and state court judges also establish a general motion timing rule through either a local rule or standing order. Time periods established for advance service usually range from five to thirty days. In many of these same jurisdictions, the respondent is required to serve opposition documents a specified time before the hearing, usually one to fourteen days.

Similarly, in arbitrations and administrative proceedings, rules typically specify the deadlines for serving motions and responses. If unknown, counsel can obtain the timing requirements by contacting the administrator or arbitrator or administrative law judge.

§ 12.2.8 Extensions of Time

One can defer the inevitable but not avoid it. Counsel unable to meet a deadline should ordinarily be able to get at least one reasonable extension of time from opposing counsel or the judge, arbitrator, or ALJ. The key words here are “ordinarily” and “reasonable” and “one.” Eventually, the documents will be due.

Federal Rule 6(b) authorizes extensions of time by the court whenever the rules require something to be done within a certain time (e.g., file and serve a motion). Most states and arbitral and administrative forums have similar rules, statutes, or customary practices that permit enlargement of time limits. Rule 6(b) provides that the court may extend time in its discretion on a “request” made before the time to act set forth in the rules has expired. Most courts have construed this to require a written motion, but under special circumstances, a phone call or an email (where permitted) to the judge, even initially ex parte, might be suitable to preserve the discretionary standard of Rule 6, followed by appropriate documentation and notice. Under such circumstances, a flexible approach may be undertaken by both counsel and the courts.

If a motion to extend time is made after expiration of the deadline for which enlargement is sought, the court, according to the terms of Rule 6, may grant the extension only where the failure to make the motion in time resulted from “excusable neglect” and is otherwise considered grantable in the court’s discretion. Judges have a preference for strict (some would say harsh) construction of time deadlines.^[6]^ The U.S. Supreme Court has read civil procedural rules literally regarding or affecting deadlines.^[7]^ This high court viewpoint undoubtedly influences many lower courts. Counsel should err on the side of caution and follow the rule provisions.

As a practical matter, an advocate should seldom need to bring a motion seeking an extension. Agreements to reasonably extend time are generally thought to be a matter of courtesy among counsel, and attorneys usually agree to appropriate extensions of time, especially if asked a seasonable time before the due date and not at the last moment. When they agree, they should execute a printed stipulation of their agreement. The stipulation can or must include a signature line for the judge, arbitrator, or ALJ which is then submitted to the decision maker for approval, technically within the time period for which enlargement is sought.

Might LLMs reduce the need for you to request extensions of time? Perhaps GenAI-backed tools can reduce your need to request extensions by accelerating legal drafting, research, and document preparation. Instead of spending hours or days on motions, briefs, and filings, might GenAI generate well-structured documents quickly—automating legal research by identifying relevant case law, statutes, and procedural rules—and then get those documents out the door? Here’s hoping that as more lawyers use LLMs, requests for extensions of time will be reduced. It’s a hope.

§ 12.2.9 In Forma Pauperis

A party who is financially unable to prepay costs or provide security for costs in a court, arbitration, or administrative action may be able to obtain an order permitting the party to proceed in forma pauperis. The order permits the indigent party to proceed in the action without paying expenses. Because most clerks and administrators will not accept for filing any motion until the filing fee is paid, it is frequently necessary to obtain leave to proceed in forma pauperis at the early stages of the action.

Leave is usually obtained by order, and is sought ex parte, because opposing parties would not generally have any standing to object to an in forma pauperis proceeding. The procedure an applicant must follow varies among jurisdictions. Many require a written motion, affidavit of indigent status, and submission of proposed documents to be reviewed and approved by the judge, arbitrator, or ALJ. Other jurisdictions only require the submission of the affidavit of indigency, which is then reviewed by the clerk or administrator. Under federal law, the applicant must submit an affidavit that states the facts establishing indigency, the nature of the action or defense to be taken in the action, and the affiant’s good faith belief that relief is available.

In forma pauperis applications are routinely granted with properly submitted documentation. Usually, the statements of the affiant are accepted as true and there is no independent investigation. If it appears that a request for leave to proceed in forma pauperis was improperly granted, it may be revoked.

An order permitting a party to proceed in forma pauperis commonly provides that the indigent will not have to pay filing fees, service costs, hearing or trial fees, and related expenses. If the waived expenses are recovered as costs by a prevailing indigent party, they are reimbursed to the forum. Other expenses may not be covered. Costs for discovery, depositions, experts, transcripts, and witness fees are usually not included in the original order. These expenses may not be absorbed in the tribunal budget. A motion seeking to expand the scope of the in forma pauperis order may be made; or alternatively, counsel may advance these costs.

LLMs can significantly expand access to justice by providing indigent litigants with the legal information necessary to navigate the court system. These tools have the capacity to identify relevant cases, statutes, and procedural rules, helping self-represented parties draft motions and affidavits that comply with procedural and substantive requirements. Rather than judges having to decipher inscrutable handwritten briefs, LLMs can generate clear, well-structured legal documents, helping pro se litigants present their arguments in a way that judges can easily understand and evaluate on the merits. Rather than having to figure out the legal work of self-represented litigants, judges can instead do their proper job: calling balls and strikes. This can reduce the burden on courts, allowing decision-makers to focus on the substance of claims and defenses.

Beyond document preparation, GenAI can also enhance the accuracy and credibility of the submissions by citing non-hallucinated case law from verified legal databases. When connected to authoritative sources, these tools can ensure that pro se filings reflect accurate legal precedent, reducing the likelihood of procedural errors or court rejection. By improving the nature of submissions, LLMs can help courts efficiently assess claims, reinforcing the principle that justice should not be denied due to financial hardship.

§ 12.3 Strategic Use of Motions

This section explores the tactical uses of motions, and examines how they fit into an overall strategic plan. Generally, motions may be used to:

• Preserve procedural rights,
• Control the timing of events,
• Shape the issues to be decided,
• Dispose of claims and defenses that are not meritorious,
• Seek necessary relief, and
• Educate the decision maker about the case.

An LLM can help with discerning possible uses of motions for one or more of these purposes. See § 1.2.7.

Timing. Motions may be brought for specific strategic purposes for which timing is crucial. For example, a motion may have a significant impact on the settlement posture of a case. If such a motion is brought and won prematurely, this potential value may not be realized. Conversely, if a motion has value in forcing necessary actions or limiting the scope of discovery, it should be brought promptly.

In addition to strategic value, timing may affect the merits of a motion. Motions can be lost because they are brought at an inopportune time. Motions for summary judgment are likely to be denied if brought before the opponent has an opportunity to conduct discovery. Motions for injunctive relief may be denied because the passage of time has eroded the reasons for an injunction or has made the administration of it an undue burden.

The timing of motions can affect the timing of other events in the case. Although the use of motions solely to delay litigation is improper, motions can postpone consideration of other matters. For example, the filing of a motion to dismiss under Fed. R. Civ. P. 12 postpones the due date of an answer on the merits until after the motion is decided. This result may be advantageous, and it’s proper to consider this strategic purpose before filing a motion to dismiss that is meritorious.

Use with Other Motions. Motions may gain strategic value when used in conjunction with other motions. The filing of a set of motions may improve overall tactical efficacy. Some motions may serve as prerequisites for others. Other motions are logically linked, and attain greater effectiveness if used together. An example of such related motions would be a motion to compel discovery, a motion to impose sanctions, and a motion for expedited hearing. Those motions might well achieve a better result in the face of an urgent need for discovery information if served together than if filed and heard separately.

Although the rules do not prohibit filing related motions separately, common sense should guide counsel contemplating bringing a series of motions. The use of sequential motions taxes the patience of most decision makers. There is also a risk that a single meritorious motion will not be given a credible hearing if it follows a handful of questionable motions.

There usually is no general requirement that all motions a party may wish to bring be filed or decided together. In fact, the rules only require that multiple pretrial motions be filed together in one circumstance. Fed. R. Civ. P. 12(g) requires that if a party elects to file any motion under Rule 12, then other motions that can be made under Rule 12 must be included (with two exceptions, naturally). See [Fed. R. Civ. P. 12(h)](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

Multiple motions may be useful in achieving efficiency and a favorable outcome. If several motions raise issues seeking the dismissal of claims or defenses, the judge, arbitrator, or ALJ may be more inclined to grant one or more of the motions, instead of having to decide serial motions. Filing multiple motions may reveal common supportive reasons and may make the decision maker aware of the overall context of the individual motions.

Order of Filing. In forming a strategic plan, a party may enhance the value of motions by considering the order in which they are brought. The sequence of bringing a motion to compel discovery, a summary judgment motion, and a motion in limine may have significant tactical value, despite the fact that the motions can theoretically be brought in any order. There are six different combinations of how these motions might be separately brought, and any one of these combinations may be the best in an individual case. For example, a motion to compel discovery may need to be brought first to obtain facts to support a subsequent summary judgment motion. Or a partial summary judgment motion may be brought early to educate a judge about the weakness of the opponent’s case so subsequent discovery motions will have a better chance of success. Similarly, the motion in limine might be brought last after a losing summary judgment motion or to signal that the party is ready to proceed to trial.

Alternative Motions. Just as a party may plead claims or legal theories in the alternative (even if they are inconsistent), a party may present motions in the alternative. For example, a party seeking summary judgment may also seek an order compelling further discovery in the event summary judgment is denied on the basis of the existence of a factual dispute. The downside of presenting alternative motions is that they may dilute the strength of the individual motions. In the example above, the party seeking summary judgment should probably do only that, for seeking discovery in the alternative is a near-admission the case either lacks sufficient factual repose to make summary judgment appropriate or that the party considers the motion unlikely to be granted.

Use of Motions to Educate the Decision Maker. If the judge, arbitrator, or ALJ will be the ultimate decision maker for the final trial or hearing, it may be worthwhile to bring some motions with an educational purpose. In federal cases and many states, a sole judge is assigned to oversee the pretrial and the trial of an action. In arbitration, usually the same arbitrator that presides over the hearing also decides pre-hearing matters. In administrative cases, the ALJ may serve as the judge through all proceedings. And in judicial cases, if the judge is to conduct a bench trial instead of a jury trial, it may be beneficial to enlighten the judge about the case through legitimate pretrial motions.

For example, a defendant may use a [Rule 12](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) motion, particularly a motion to dismiss for failure to state a claim under Rule 12(b)(6), to alert the decision maker at an early stage what the legal issues are and to draw attention to a bizarre or novel theory of recovery relied on by the plaintiff. Similarly, a plaintiff may make good use of a motion to strike an alleged frivolous defense in order to show that the defendant’s position is either tenuous or untenable. Even if these motions are not granted, they may serve a purpose that will yield returns later in the case.

Pretrial and prehearing motions may also provide counsel with insights into what the judge, arbitrator, or ALJ thinks about the claims and defenses. Comments or rulings may provide useful information regarding future proceedings. Counsel may decline to pursue certain motions or may decide to pursue settlement based on pending or previous remarks or decisions.

Motions as a Condition Precedent to Further Review. The rules occasionally make the bringing of a specific motion not only strategically wise, but procedurally necessary. For example, it is required to bring a motion for an order compelling discovery as a condition precedent to obtaining sanctions for failure to properly respond to discovery in most situations. The party facing inadequate or nonexistent discovery responses should seek an order compelling responses from the recalcitrant party.

Motions for Reconsideration. The term “motion for reconsideration” appears nowhere in the Federal Rules of Civil Procedure nor in similar state rules. Many courts require a party to bring a motion requesting the opportunity to bring a motion to reconsider. If this motion is granted, the reconsideration motion can follow.

There are limited grounds available to support a request to reconsider. A motion may seek:

• A statement or explanation of specific reasons for the original decision.
• To present a new argument or one better attuned to the now apparent predisposition, that was previously unavailable.
• To request the consideration of intervening decisional or case law developments or unanticipated factual developments.

The first type of motion for reconsideration is generally made following a somewhat cryptic ruling on a previous motion. The basis for a terse ruling may be unclear, especially if the parties argued alternative grounds. A reconsideration motion may attempt to ascertain the specific reasoning so the lawyers understand the bases for the ruling and to preserve an issue for appeal. Alternatively, the better and proper motion may be to request a formal written opinion if the ruling was oral or a detailed statement of reasons in support of the written ruling.

Many courts consider a reconsideration motion only proper if a new argument based on intervening events has occurred. A motion to reconsider may be effectively used where intervening developments, either of a factual or legal nature, have cast doubt on the correctness of the initial ruling. A change in precedential law and the reversal of a case with res judicata or collateral estoppel effect in the first ruling provides powerful support for a reconsideration motion. Further, the mere passage of time may show that presumptions underlying the earlier decision proved incorrect or that the initial ruling failed to accomplish the expected result.

Motions to reconsider that seek to convince decision makers they were wrong and, in effect, seek a second chance to change their minds, are improper and ill-advised. If this is the ostensible purpose, counsel may expect to be sanctioned with a reprimand and perhaps with expenses. If a motion requesting to bring a motion to reconsider is denied, that is the controlling outcome. If that motion is granted, either a new ruling or a ruling affirming the previous decision would be forthcoming. The public policy favoring finality of decisions militates against any serious changes in rulings.^[8]^ It can be prudent to realize: it’s over.

§ 12.4 Appealability of Decisions

on Pretrial Motions

The general rule in federal courts and nearly all state courts is that only final orders are immediately appealable. Appellate courts eventually review non-final (interlocutory) orders after the final judgment is entered that conclusively determines the rights of the parties. The U.S. Supreme Court has characterized a final judgment as one that ends the litigation on the merits and leaves nothing to be done but to execute the judgment.^[9]^

Accordingly, the general rule is that pretrial and prehearing orders are not immediately appealable and may be reviewed on appeal after the final judgment. The rationales for this doctrine are that: (1) the justice system prefers a single final appeal which may incorporate previous rulings, (2) piecemeal appeals are inefficient and expensive, (3) the appealing party may be the eventual losing party, and (4) the future winning party may not have sought an intermediate appeal if they could predict the future.

Dispositive motions are more likely to result in final, appealable orders. This generally occurs when the dispositive motion is granted. Examples of commonly made dispositive motions are: Rule 12(b)(6) motions for failure to state a claim, Rule 12(c) motions for judgment on the pleadings, Rule 55 motions for default judgment, and Rule 56 motions for summary judgment. If any of these motions is granted, a final appealable order usually results. If denied, the denial creates only an interlocutory order that must await review.^[10]^

Non-dispositive motions are those tending to deal with the procedure of the case rather than its substantive outcome. Both grants and denials of these motions fail to conclusively determine the judgment winner, although decisions on key procedural motions may eventually result in a favorable outcome for the winning party. Examples of commonly made non-dispositive motions are motions to: amend pleadings, join parties, assert claims, seek discovery sanctions, obtain a protective order, appoint court appointed neutrals, and affect case management (e.g., transfer, consolidation, continuances).

There are several exceptions that permit intermediate appeals. Rulings on some significant pretrial and prehearing motions may be immediately appealable under the following circumstances:

Interlocutory Appeals. Most jurisdictions allow immediate appeals for selective rulings. Orders independently dismissing primary claims or defenses as a sanction for failure to follow discovery rules may be appealable. Interlocutory orders granting, continuing, modifying, refusing, or dissolving injunctions are usually appealable.^[11]^ The procedural law recognizes that in these types of cases the decision on a preliminary matter may effectively determine the winning party.^[12]^

Certification Appeals. In federal courts, a statutory exception, embodied in 28 U.S.C. § 1292(b), permits the trial court to certify an order for immediate appellate review if the trial judge finds that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the case. The appeals court is not bound to accept the certification but may refuse and remand the case to the trial court. Most state courts have a similar or related certification provision.^[13]^

Collateral Order Appeals. Another exception to the final order rule has evolved through case law. The exception, known as the collateral order doctrine in federal courts and some state courts, permits interlocutory review: (1) if the decision conclusively resolves a critical issue in the case or implicates an important public policy, (2) if the issue is completely separate and distinct from the merits of the litigation, and (3) if the order will be effectively unreviewable after final judgment.^[14]^ Examples of appealable collateral orders include non-party discovery decisions, rulings holding a party in contempt,^[15]^ or orders granting or rejecting a defense of official immunity.^[16]^ State courts are split regarding the doctrine, with most having it but few using the same terminology and analysis found in the federal courts.

Appeals Pursuant to Court Rule. Federal Rule 54(b) and similar state rules provide that a court may, in multiple claim or multiple party actions, direct the entry of final judgment when its order conclusively adjudicates the dispute as to one entire claim or as to one party where the court expressly determines that there is no just reason for delay. A Rule 54(b) determination, like a Section 1292(b) certification, need not be accepted by the appeals court if the appellate court rejects the trial judge’s determinations.

“Appeal” by Writ. Interlocutory review may also be available through the extraordinary writs, primarily mandamus and prohibition. These are not strictly “appeals,” but bear many similarities to appeals. A writ of mandamus directs a court to perform some clear and essentially ministerial duty.^[17]^ A writ of prohibition restrains the trial court from issuing and enforcing an order exceeding its powers. These writs are ordinarily not obtainable in federal courts, and are more commonly available in state courts. Examples of situations justifying the writs are discovery orders imperiling privileged materials, such as documents subject to the attorney-client and trial preparation privileges,^[18]^ or those requiring disclosure of trade secrets.^[19]^

Contempt Appeals. The least preferred method of obtaining interlocutory review involves facing contempt of court by refusing to comply with an offending order. For the daring (and often foolhardy) party or attorney, this tactic can provide both immediate appellate review and notoriety, perhaps even civil martyrdom. If the court holds the recalcitrant participant in criminal contempt, immediate review is assured. Civil contempt orders are usually not immediately appealable unless linked with an otherwise appealable order.^[20]^

§ 12.5 Ethical Uses of Motions

§ 12.5.1 Ethics of Motion Practice

Motion practice resembles all other aspects of practice with respect to the obligations an attorney has to a client. The preparation and submission of motions does not present any particular ethical problems regarding the lawyer’s duties to the client. Motion practice does involve situations that require the lawyer to be aware of ethical responsibilities to the tribunal. Because the client’s interests do not always coincide with other interests, these situations may present difficult ethical dilemmas.

A motion practice issue arises when counsel becomes aware of legal authority contrary to the position being advanced in a motion. The ABA Model Rules of Professional Conduct, which are applicable or influential law in all states, provide that an attorney shall disclose controlling law that is adverse to a client’s position. Model Rule 3.3 requires such a disclosure when counsel, including opposing counsel, fails to reveal the controlling authority. This is an important obligation of lawyers that may be directly contrary to instincts developed in the adversary system.

[ABA Formal Opinion 280](https://www.westlaw.com/Document/Id9bd74199c2111e08b05fdf15589d8e8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Id9bd74199c2111e08b05fdf15589d8e8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) articulated the following three-part test to guide attorneys regarding the disclosure of adverse law:

Is the decision which counsel has overlooked one that the court should clearly consider in deciding the case?

Would a reasonable judge properly perceive that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision, was lacking in candor and fairness?

Might the judge consider being misled by an implied representation that the lawyer knew no adverse authority?^[21]^

Consequently, an advocate will need to disclose all controlling authority significantly affecting the outcome of an issue.

Equally important as the ethical responsibility to disclose adverse authority is the potential tactical mistake of failing to do so. Dealing fast and loose with the law or facts may have devastating effects on the immediate motion and on future proceedings in a case. This practice may also give rise to the imposition of sanctions against the lawyer, including the payment of attorney fees incurred by the opponent.^[22]^

When presenting a motion, lawyers also have an ethical duty not to make certain types of arguments. Since an attorney’s role is to advance the client’s position, counsel must refrain from interjecting personal opinions into motion presentations. The disciplinary rules prohibit lawyers from asserting their personal knowledge of facts in issue and their personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a civil party.^[23]^ Counsel may properly argue for a position or conclusion that is based on a reasonable analysis of the evidence.^[24]^

A major ethical concern relating to motion practice centers on the misuse, or rather, overuse, of motions for improper purposes. Although no “bright line” rules may be drawn to determine what motions are permissible and which are not, some standards do exist. Model Rule 3.1 provides that lawyers may assert positions if there is a basis in law and fact for doing so that is not frivolous, or if an argument may be made in good faith for the extension or modification of existing law.

Fed. R. Civ. P. 11(b)(1) further states that a motion or other document should not be “presented for any improper purpose, such as to harass or to cause unnecessary delay, or needless increase in the cost of litigation.” This ethical constraint is also embodied in the signature requirement of Fed. R. Civ. P. 11(a), which applies directly to motions. By signing a motion, the attorney for the party certifies that, among other things, it is not interposed for harassment or delay.

LLMs can generate legal documents quickly, creating the potential for excessive motion filings that overwhelm both opposing counsel and the courts. While this technological advantage allows attorneys to draft motions with greater speed and efficiency, it also presents ethical concerns if used improperly.

As previously noted, Model Rule 3.1 and Rule 11 prohibit filings made for harassment, unnecessary delay, or needless cost increases—bad results that an LLM can achieve with ease. With great power comes great responsibility. Lawyers should ensure that GenAI enhances their advocacy, rather than enabling a flood of unnecessary motions that burden judicial resources and opposing parties.

The ethical use of GenAI in motion practice requires attorneys to be tactical and selective, filing only those motions that serve a legitimate legal purpose. Instead of burying opponents and judges under an avalanche of documents, lawyers should use GenAI to refine their arguments, identify only the most relevant legal authority, and present concise, well-targeted filings. By maintaining professional responsibility, attorneys can ensure that their use of GenAI strengthens the integrity of the legal system, rather than undermining it. Courts are more likely to view well-reasoned, restrained filings as credible, reinforcing the attorney’s reputation and improving the chances of a favorable outcome.

§ 12.5.2 Disqualifying Counsel

and Decision Makers

Motions to Disqualify Counsel. An advocate may be able to bring a motion to disqualify opposing counsel for sufficient legitimate reasons. The motion is designed to provide a party with a fair process, although it can also be improperly used to prevent a fair proceeding.^[25]^ A motion to disqualify brought solely for questionable reasons may well be considered to be frivolous resulting in an award of costs and attorney fees against the moving party. Before bringing an appropriate motion, the advocate should ask opposing counsel to voluntarily withdraw from the case and explain why the law requires such withdrawal.

Disqualification of counsel is most frequently sought on the grounds of a conflict of interest. This conflict may arise from the prior representation of a client or from the simultaneous representation of another party. The other, less common, ground for disqualification motions is the situation where a lawyer is, or should be, a witness.

In the situation of current representation of a party whose interest is adverse to that of a former client, the “substantial relationship” test is used to determine if disqualification is necessary.^[26]^ This standard requires disqualification if the two matters involve identical issues or are substantially related. This factor presumes that the prior representation involved the disclosure of client confidences, which presumption may be rebutted.

In cases of simultaneous representation, a less stringent test is applied to determine if disqualification is necessary. Disqualification will be required if it appears that the lawyer’s ability to provide independent advice and undivided loyalty to the clients is adversely affected.^[27]^

The Model Rules prohibit an attorney from accepting representation in a matter when it is clear that the attorney is going to be, or ought to be, a witness in the proceeding.^[28]^ A lawyer in such a position will need to withdraw from future representation unless an exception to the rule applies. Withdrawal is not required if the testimony will relate solely to uncontested matters or to the nature of the lawyer services, or when withdrawal would be substantially burdensome to the client if it is sought late in a case.

***Motion to Disqualify the Judge, Arbitrator, or ALJ. ***This motion is relatively rare. The party seeking such relief will initially prefer to have the decision maker recuse voluntarily, without the need for a motion. And, judges should recuse themselves when warranted, usually because of potential or actual financial or professional conflicts of interest.^[29]^

The Model Code of Judicial Conduct and [28 U.S.C. § 455](https://www.westlaw.com/Document/NCE516FD0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCE516FD0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (applicable in federal court) disqualifies a judge from a case if impartiality might reasonably be questioned because:

(a) the judge has a personal bias or prejudice concerning a party or party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse, parent, or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other de minimis interest that could be substantially affected by the proceeding; or

(d) the judge or judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding; or

(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.

The request for disqualification asks the court specifically to consider the propriety of sitting on a case, and establishes an appellate record. The motion to recuse a federal or state judge is decided in the first instance by that judge. Precedentially, there are very few decisions where a federal judge has been disqualified. Recusal requests should be cautiously brought in state courts.

An alternative method for obtaining recusal or disqualification of a judge is to file an affidavit of bias or prejudice. [Title 28 U.S.C. § 144](https://www.westlaw.com/Document/NCE66CC90A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCE66CC90A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) permits a party to disqualify a federal judge by filing an affidavit stating facts from which the inference of actual bias or prejudice can be inferred. The affidavit must be signed by the party, and the attorney of record must also sign it to certify that it is made in good faith. The affidavit must be timely filed in accord with the statutory provisions.

In addition to permitting disqualification on a factual showing of actual bias or prejudice, many state courts permit the disqualification of a judge without a showing of cause.^[30]^ These jurisdictions essentially permit the peremptory challenge of a judge by a party. Usually, only one challenge without cause is permitted, with any subsequent challenges supported with good cause.

The grounds for disqualification of an arbitrator may appear in the applicable arbitral code of procedure. Grounds for disqualification of an administrative law judge often appear in the applicable administrative procedural rules or statute. These provisions are commonly identical to or similar to the judicial standards.

LLMs can help identify conflicts of interest and ethical violations that warrant disqualification of opposing counsel or a judge. If the LLM is connected to a legal database, then GenAI can analyze prior representations, simultaneous client relationships, and instances where an attorney may need to serve as a witness, GenAI can flag potential conflicts that undermine an attorney’s ability to provide independent, loyal representation.

Similarly, when seeking judicial disqualification, LLMs can retrieve a judge’s prior rulings from legal databases, highlighting decisions that demonstrate bias or a pattern of questionable reasoning. If the LLM is connected to external databases (e.g., judicial stock option disclosures, social media databases), GenAI can also potentially detect ethical violations under the Model Code of Judicial Conduct or federal statutory law such as [28 U.S.C. § 455](https://www.westlaw.com/Document/NCE516FD0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCE516FD0A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). For example, there may be undisclosed financial interests or improper relationships that may impact a judge’s impartiality.

§ 12.5.3 Substitution or Withdrawal

of Counsel

A party may desire to change counsel, or to terminate representation by present counsel without naming additional counsel. These situations may give rise to motions that either must or should be brought.

Substitution of counsel is normally effectuated without a motion. The new attorney may prepare a “substitution” document indicating that the party is now represented by the new attorney. The party seeking substitution may also obtain the consent of the former attorney, which may be combined in a single document. This document is served on all parties and filed with the forum, with the new appearance noted on the docket.^[31]^

A motion is required for substitution only in rare circumstances. For example, the judge in a class action will want to review any change in counsel for the class representatives, and a motion is required or expected for a lawyer to withdraw from this type of case.

An attorney may want to or have to withdraw from representing a party. Counsel must initially determine if withdrawal is ethically permissible. The Model Rules set forth when an attorney may withdraw and the circumstances that require the attorney to withdraw. In either case, the lawyer must, before withdrawing, take reasonable steps to avoid foreseeable prejudice to the rights of the client.^[32]^ The rules require that the lawyer give the client notice of the withdrawal, adequate time to retain substitute counsel, and provide the client with all case materials. A motion to withdraw may be brought seeking approval for the withdrawal.

§ 12.5.4 Motion Malpractice

There is little unique to motion practice that results in different or unusual exposure to malpractice claims. Many of the same errors that result in malpractice liability in civil cases may occur in connection with the filing or defense of motions.

An important area of malpractice exposure relates to the failure to meet deadlines. Missing a statute of limitations creates clear malpractice liability. Other deadlines may be equally important. For example, the failure to take some required action regarding a motion in a timely manner may equally prejudice a client. Counsel needs a reliable system to insure that applicable deadlines are identified and met.

One malpractice exposure situation that arises primarily in motion practice relates to motions for any form of relief on the grounds of excusable neglect. Many civil rule requirements will be waived or extended in situations of excusable neglect.^[33]^ In making such a plea for relief, counsel may be required to make statements that amount to admissions of misfeasance or malpractice. Although professional responsibility requires that all efforts be made to obtain relief from a rule or order if neglect has occurred and if such relief is justified, the attorney should be aware that the client’s interest and the attorney’s position may diverge. Usually, a lawyer will be energetic in asserting neglect as a basis for obtaining relief because the relief, if granted, will prevent any claim of malpractice by the client and eliminate any potential damages.

Attorneys may be held liable for damages for failing to defend against motions. For example, the stringent procedural requirements of Rule 56, and the fact that a summary judgment will dispose of a case on the merits, result in a clear obligation to present available facts to the court. A lawyer who does not present factual information in response to a motion for summary judgment despite the existence of facts that would establish a sufficient factual dispute to render summary judgment inappropriate will be held responsible for such irresponsible conduct.^[34]^

Similarly, an attorney may be liable for failing to pursue relief that might be available by motion. Although the client would have to prove that the failure to obtain the relief by motion resulted in ultimate harm, it is possible for counsel to be liable for damages. Analogous claims for liability may be imagined for other types of motions.

An attorney may also be exposed in motion practice to liability arising from errors of law. In particular, there may be liability for failure to conduct research or investigation into legal authority.^[35]^ This potential area of liability exists as to every procedural and substantive facet of the case, and requires consideration in every contemplated motion and in defending every motion.

The duty to research does not require exhaustive research of every legal issue, and the “rule of reason” determines the extent of the duty. It is prudent to involve the client in deciding how much time and effort should properly be expended in research as financial resources will determine the extent of research and the appropriate response. A conflict between what should be done and what is economical may raise an ethical dilemma. Few clients will be disposed to blame an attorney or assert any claim for a bad result when the client helped map the strategy and make the decision to limit research and representation expenditures.

LLMs can help attorneys avoid malpractice exposure in motion practice in several ways. For example, GenAI-backed tools can automate deadline tracking, ensuring compliance with procedural rules. Missing a filing deadline, whether for a motion or a response, is a frequent way that lawyers prejudice a client’s case, expose an attorney to liability. GenAI can mitigate this risk by integrating with case management systems to flag critical deadlines, generate reminders, and even draft initial motion responses well in advance of due dates.

Beyond procedural safeguards, GenAI can also avoid malpractice by strengthening motions substantively and procedurally. For example, LLMs can ensure that summary judgment responses include all necessary factual disputes, avoiding dismissal due to incomplete or inadequate arguments.

GenAI can also analyze opposing motions for weaknesses, suggest counterarguments aligned with jurisdictional standards, and highlight underutilized arguments. And again, If the LLM is connected to a legal database with cases, statutes, and regulations, that tool can provide yesterday’s case that may well win your motion (or help you avoid malpractice). By streamlining legal research and generating well-supported filings, GenAI can help attorneys meet their professional duty to provide competent representation, reducing the risk of liability for errors or omissions.

As GenAI becomes increasingly integrated into legal workflow, is the standard of care for the bar being raised for malpractice? The efficiency and quality gains from LLM-assisted legal work are substantial, allowing lawyers to produce higher-quality filings at a faster pace. If courts and clients begin to expect this level of precision and responsiveness, will attorneys who fail to adopt GenAI fall below the baseline standard of care for their jurisdiction? At what point may refusing to use GenAI—when it demonstrably improves accuracy and efficiency—become malpractice?

ABA Model Rule 1.1, Comment 8, requires lawyers to “keep abreast of changes in the law and its practice, *including the benefits and risks *associated with relevant technology.” (Emphasis added.) LLMs are arguably the most relevant technology currently available. As such, attorneys must remain aware of how these technological advancements are rapidly redefining competence, ensuring that they meet the evolving expectations of both their clients and the legal profession.

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

Planning and Drafting

1. Plan the terms of a notice of motion, motion, proposed order, and necessary supporting documents (excluding a memorandum) in the case assigned by your professor. Prepare to discuss in class or online.

2. Draft a notice of motion, motion, proposed order, and necessary supporting documents (excluding a memorandum) in the motion and case assigned by your professor.

Drafting Exercise

3. The facts in Lawn Turf LLC v. National Seed, Inc. are as follows:

On September 23, National Seed Company sent a mailing of sample clover seed to potential customers with the note appearing in Note A. On September 30, the Lawn Turf Company sent the defendant an email that appears in Email B. On October 1, National Seed sent Lawn Turf a written reply, that appears in Reply C and which Lawn Turf received on October 3. On October 6, Lawn Turf sent an email, that appears in Email D, to National Seed. On October 7, National Seed sent a reply to the email, that appears in Reply E.

Beginning on October 8, a three-day rainstorm destroyed the National Seed clover seed crop. On October 12, the National Seed manager, Geraldine O’Hara, telephoned the president of Lawn Turf, Solomon Baritz, and said she could not deliver the seed. Because of the time of the year, Lawn Turf could not obtain any replacement red clover seed and lost $77,500 in profits it would have earned by selling the seed to retailers.

The term “f.o.b.” means the place delivery will occur. F.O.B. Mitchell means the seller will deliver without charge to the buyer at Mitchell. Lawn Turf sues National Seed for breach of contract in Mitchell federal court, with proper jurisdiction.

Note A:

Red Clover, 50,000 lbs. like sample. I am asking 24 per, f.o.b. Mitchell, Summit.

National Seed

Email B:

National Seed: We received your sample. Your price too high. Send another offer, naming absolutely lowest f.o.b.

Lawn Turf

Reply C:

Lawn Turf: I am asking 23 per pound for the car of red clover seed from which your sample was taken. No. 1 seed. I have an offer of 22 per pound, F.O.B. Mitchell. All quotations subject to contingencies beyond our control.

National Seed

Email D:

National Seed: Got your reply. Offer accepted. Ship at least 50,000 lbs., and 60,000 lbs., if available, promptly, route care of Comtrak Railroad to Mitchell, Summit.

Lawn Turf

Reply E:

Lawn Turf: Deal confirmed at 50,000.

National Seed

Lawn Turf v. National Seed Assignment

On behalf of your client, you are considering summary judgment. See § 13.3.

3 (A). You represent Lawn Turf. An associate in your law firm drafts the following documents.

(1) Prepare to discuss in class or online what you would do to redraft them.

(2) Redraft the motion, affidavit, and proposed order. Do not draft the caption or signature provisions.

3 (B). You represent the defendant National Seed.

(1) Advise your client on whether the defense should submit a cross-motion for summary judgment.

(2) Draft the body of a cross-motion for summary judgment, with accompanying affidavit and proposed order.

MOTION DRAFT DOCUMENTS

Motion for Summary Judgment

Plaintiff by its lawyers files this motion for a summary judgment pursuant to the Rules of Civil Procedure of the District Court of Mitchell. Plaintiff has a right to a summary judgment because the law supports such a judgment. The Plaintiff bases this motion on the attached documents.

Affidavit

Solomon Baritz, being sworn under oath, states as follows:

1. That affiant is Solomon Baritz, the President of Lawn Turf.

2. That Lawn Turf is the Plaintiff in the above-entitled action.

3. That on or about October 11 affiant received a phone call from Geraldine O’Hara.

4. That Geraldine O’Hara is the manager of National Seed Co.

5. That affiant was told by O’Hara that she would breach her contract with Lawn Turf.

6. That Lawn Turf never received the Red Clover seed contracted with National Seed.

7. That Lawn Turf suffered a loss of $77,500 because Lawn Turf could not replace the non-delivered seed and lost the profits it would have earned by selling such seed to its retail distributors.

8. That there exists no genuine issue of material fact in this case.

Further affiant sayeth not.

Proposed Order

Upon all the files, records, motions, and arguments submitted by counsel in this case:

Summary Judgment is to be and is entered for the Plaintiff for $77,500.

Motion Problems

4. On March 17 Shelly Fridley opened a dinner theater named “On Broadway” at 680 East Fifth Street in Mitchell. Stage productions are conducted during dinner. On October 15 of the same year, Terrell Poser opened a similar dinner theater named “Off Broadway” at 420 West Fifth Street in Mitchell. Stage productions are conducted during dinner.

Summit has an Unfair Competition Statute which provides in Section 64.1 that:

Any person performing an act of unfair competition within this state may be enjoined. Unfair competition means deceptive or fraudulent business practices. Money damages are not available under this statute. Reasonable expenses for injunctive relief are recoverable, excluding attorney fees.

The Summit Supreme Court has held in Givens, Inc. v. Muhammad Productions, Inc., 346 Sum. 2d 674 (2011) that:

To state a cause of action for unfair competition, a plaintiff need allege that its name has acquired a secondary meaning, that the defendant’s name was later adopted and used, that defendant’s name is likely to deceive or confuse the public, and that the plaintiff has been or is likely to be damaged by the defendant’s conduct. Id. at 678.

On December 15 of the same year, Shelley Fridley sues Terrell Poser in On Broadway v. Off Broadway, in Summit state court, for violation of the Summit Unfair Competition statute.

4(A). You represent the defendant Terrell Poser. You anticipate the plaintiff will bring a motion for preliminary injunctive relief.

(1) What can you consider doing before, during, and after such a motion is brought on behalf of your client to prevent the motion from being heard and decided?

(2) Counsel have an obligation under the applicable rules to meet and confer before bringing a motion before the court. How does this duty enlarge or limit your options as counsel for the defense.

(3) The attorney for the plaintiff has suggested a mediator be selected in an effort to resolve the civil action. As defense counsel, what is your position? Do you recommend to your client the use of a mediator? Why or why not?

(4) Presume the Court has denied the plaintiff’s request for injunctive relief until after discovery has been completed. Discovery is near completion now one year after the action commenced. Poser explains that he anticipates he will lose the case but wants to make as much money as possible from the dinner theater under the lease terms of its present location. Poser, also a lawyer, suggests you file a motion for judgment on the pleadings or a motion for summary judgment motion or any other applicable motion. What would you do? What factors influence your decision?

5. You represent HDE in Vasquez v. Hot Dog Enterprises (Case F). The President of HDE agrees that Wankle did sexually harass Vasquez but that Vasquez is asking for far too much money in damages. The President wants to disassociate HDE from Wankle. You advise the President that HDE could claim that Wankle was not an employee of HDE who was acting within the scope of his employment, perhaps relieving HDE of liability. You also advise the President that the scope of employment issue is a factual matter that can only be resolved at trial. The President suggests that you bring a summary judgment motion to resolve the claim before trial to avoid unnecessary publicity. The President also notes that the motion, even if unsuccessful, may help negotiate a reasonable settlement because of the extra fees and costs Plaintiff will incur in defending the motion. You advise the President that you have serious problems with bringing such a summary judgment motion. The President replies that HDE has retained your law firm for all of its legal business and that this is part of that legal business. Would you bring the summary judgment motion? Why or why not? What factors influence your judgment?

6. The parties in Vasquez v. Hot Dog Enterprises (Case F) agree to arbitrate their dispute. Is there any reason why counsel for Hot Dog Enterprises would bring a motion to dismiss the claims before the arbitration hearing? Review arbitral code of procedural rules and compare them with [Federal Rules of Civil Procedure 12](https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND21529B08CBB11EFA68BF15E5D0D8212/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and 56. What are the similarities? The differences?

7. In FJE Enterprises v. Arbor Vineyards (Case L), Farah and Jamal Ehran retain you to represent them in their disputes with Arbor. They say they will do everything they legally can to recover all their damages, and they want you to do all you can to persuade and urge Arbor to settle as soon as possible. How do you respond? What are their options? What all can you do?

8. In Tymons v. Allgoods and Razzle (Case M), the Tymons retain you to represent them on a hybrid attorney fee arrangement, part flat fee and part contingent fee. They are very angry and upset at having their witness protection cover exposed, and they want revenge against these large monolithic and monopolistic defendants. They understand our civil litigation system, and expect you to bring every possible discovery, procedural, and substantive motion you can engender. How do you respond? What can you do? What should you do?

Motion Assignments

9. Research the law of the local federal district court in the community where your law school is located and identify the rules that apply to motion practice covering the preparation and submission of motion documents, including provisions such as their types, length, formats, and timing. Prepare to discuss in class or online these rule provisions.

10. Research the state rules of civil procedure in the state where your law school is located and identify those rules that apply to the presentation applicable to motion practice covering the preparation and submission of motion documents, including provisions such as their types, length, formats, and timing. Prepare to discuss in class or online these rule provisions.

11. Research the law of your local trial court in the community where your law school is located and identify the rules applicable to motion practice covering the preparation and submission of motion documents, including provisions such as their types, length, formats, and timing. Prepare to discuss in class or online these rule provisions.

12. You have been requested by Summit Continuing Legal Education to make a presentation at its annual Pretrial Motion Practice CLE Program on one or more of the following topics:

(A) Mechanics of Motion Practice.

(B) Common Supportive Motion Documents.

(C) Lawyer Meet and Confer Conferences.

(D) Strategic Uses of Motions.

(E) Appealability of Pretrial Motion Decisions.

(F) Ethical Uses and Misuses of Motions.

1. Plan to discuss in class or online the topic(s) assigned to you by your professor.

2. Prepare a concise outline of your presentation on the topic assigned to you by your professor.

3. Consider the position of the parties in Mullarkey v. Denial Mutual Insurance (Case N). What motions might realistically aid Mullarkey’s case? The insurer’s case? Are there potential motions that require some additional information to obtain through discovery before they can be made? Identify any such motions and the type of discovery activity you will need to get the information.

4. What motions should TechTrust Wealth Management be considering now that it faces Igor Invester’s putative class action claim (Case P)?

5. Presume that ProTectCo Life Insurance moves for summary judgment in response to the Gravitas Grinch claim as a beneficiary of the life insurance policy on Dara Domestic and that the court denies the motion (Case O). Can Grinch obtain appellate review of the decision? How?

6. See, e.g.,** **Allender v. Raytheon Aircraft Co., 439 F.3d 1236 (10th Cir. 2006). ↑

7. [Lynn v. Smith,](https://www.westlaw.com/Document/I96a0c11054bd11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I96a0c11054bd11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 193 F. Supp. 887 (W.D. Pa. 1961)](https://www.westlaw.com/Document/I96a0c11054bd11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I96a0c11054bd11d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

8. • See* Model Rules of Professional Conduct, R 3.4 & 3.5. ↑
9. • See, e.g., *Tate v. IBM Corp., 94 F.R.D. 324 (N.D. Ga. 1982). ↑
10. • See, e.g., **[Atchison, Topeka & Santa Fe Ry. Co. v. California State Bd. of Equalization](https://www.westlaw.com/Document/I8f810a17940b11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8f810a17940b11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[, 102 F.3d 425 (9th Cir. 1996)](https://www.westlaw.com/Document/I8f810a17940b11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8f810a17940b11d9a707f4371c9c34f0/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
11. • See, e.g., **[Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship](https://www.westlaw.com/Document/Iaf7baa7c9c7e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iaf7baa7c9c7e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 507 U.S. 380 (1993)](https://www.westlaw.com/Document/Iaf7baa7c9c7e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iaf7baa7c9c7e11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) *(inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute “excusable” neglect); Gadsden v. Jones Lang Lasalle Americas, Inc., 210 F. Supp. 2d 430 (S.D.N.Y. 2002). ↑
12. • See, e.g., *Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Mohasco Corp. v. Silver, 447 U.S. 807 (1980). ↑

13. But such motions are not always futile. See, e.g., [Carter v. City of Alton](https://www.westlaw.com/Document/I0476b7f06c3011e9a452e3adaa741b9a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0476b7f06c3011e9a452e3adaa741b9a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 922 F.3d 824 (7th Cir. 2019)](https://www.westlaw.com/Document/I0476b7f06c3011e9a452e3adaa741b9a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I0476b7f06c3011e9a452e3adaa741b9a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(reversing trial court denial of reconsideration and remanding for further proceedings). ↑

14. [Catlin v. United States,](https://www.westlaw.com/Document/I8bb79c339bf111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8bb79c339bf111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 324 U.S. 229 (1945)](https://www.westlaw.com/Document/I8bb79c339bf111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8bb79c339bf111d993e6d35cc61aab4a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

15. See **[United States v. Allahyari](https://www.westlaw.com/Document/I5932a730fceb11ee835ad45e3c4fda7b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5932a730fceb11ee835ad45e3c4fda7b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 99 F.4th 486 (9th Cir. 2024)](https://www.westlaw.com/Document/I5932a730fceb11ee835ad45e3c4fda7b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5932a730fceb11ee835ad45e3c4fda7b/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(noting general rule that only final orders are appealable and that final order is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”). See also [Cameron v. EMW Women’s Surgical Ctr](https://www.westlaw.com/Document/Ie046d5279ac711ec91ad825f65050b7e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_274" \o “https://www.westlaw.com/Document/Ie046d5279ac711ec91ad825f65050b7e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_274)[., 595 U.S. 267, 274 (2022)](https://www.westlaw.com/Document/Ie046d5279ac711ec91ad825f65050b7e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_274" \o “https://www.westlaw.com/Document/Ie046d5279ac711ec91ad825f65050b7e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_274)(deadline for seeking appeal is jurisdictional; court has no discretion to permit an untimely appeal). ↑

16. • See* 28 U.S.C. § 1292(a) (2012). ↑

17. *See **In re Fort Worth Chamber of Com., *98 F.4th 265 (5th Cir. 2024). ↑

18. This use of the term “certification” is different than the situation in which a federal court asks for advice on an unsettled question of law to the state supreme court requesting that the state high court provide guidance. See, e.g., [Doe v. Uber Techs., Inc.,](https://www.westlaw.com/Document/I66687e50af2c11ee9614e7cb54c94fa8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I66687e50af2c11ee9614e7cb54c94fa8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 90 F.4th 946 (9th Cir. 2024)](https://www.westlaw.com/Document/I66687e50af2c11ee9614e7cb54c94fa8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I66687e50af2c11ee9614e7cb54c94fa8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

19. See*** *Cunningham v. Hamilton County, 527 U.S. 198 (1999). **See, e.g., [Maye v. City of New Haven](https://www.westlaw.com/Document/Ia32467b0a41311ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia32467b0a41311ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 89 F.4th 403 (2d Cir. 2023)](https://www.westlaw.com/Document/Ia32467b0a41311ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ia32467b0a41311ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(finding collateral order criteria unmet). ↑

20. *See, e.g., *United States v. Ryan, 402 U.S. 530 (1971). ↑

21. See, e.g., [Mi Familia Vota v. Ogg,](https://www.westlaw.com/Document/I50a494302f3511efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I50a494302f3511efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 105 F.4th 313 (5th Cir. 2024)](https://www.westlaw.com/Document/I50a494302f3511efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I50a494302f3511efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Mitchell v. Forsyth, 472 U.S. 511 (1985). ↑

22. See **[In re Abbott Labs., ](https://www.westlaw.com/Document/I08d2a3a0dfde11ee97d7a14724172d98/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I08d2a3a0dfde11ee97d7a14724172d98/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[96 F.4th 371 (3d Cir. 2024)](https://www.westlaw.com/Document/I08d2a3a0dfde11ee97d7a14724172d98/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I08d2a3a0dfde11ee97d7a14724172d98/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0);* **[In re Strickland](https://www.westlaw.com/Document/I14e44b608e1411eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I14e44b608e1411eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[, 87 F.4th 257 (4th Cir. 2023)](https://www.westlaw.com/Document/I14e44b608e1411eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I14e44b608e1411eebd92cea780701b2a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(both cases outlining criteria for writ of mandamus and finding them unmet by petitioners). ↑

23. [In re Pressman-Gutman Co.,](https://www.westlaw.com/Document/I18d8ef282eda11dbbffafa490ee528f6/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I18d8ef282eda11dbbffafa490ee528f6/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 459 F.3d 383 (3d Cir. 2006)](https://www.westlaw.com/Document/I18d8ef282eda11dbbffafa490ee528f6/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I18d8ef282eda11dbbffafa490ee528f6/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

24. *See, e.g., **United States v. Fei Ye, *436 F.3d 1117 (9th Cir. 2006). ↑

25. • See *Halderman v. Pennhurst State School & Hospital, 673 F.2d 628 (3d Cir. 1982) (civil contempt orders appealable); IBM Corp. v. United States, 493 F.2d 112 (2d Cir. 1973) (civil contempt not appealable). ↑

26. ABA Comm. on Professional Ethics and Grievances, Formal Op. 280. ↑

27. [Lumaj v. Gonzales](https://www.westlaw.com/Document/I8b4787813d8f11dbbb4d83d7c3c3a165/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8b4787813d8f11dbbb4d83d7c3c3a165/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 462 F.3d 574 (6th Cir. 2006)](https://www.westlaw.com/Document/I8b4787813d8f11dbbb4d83d7c3c3a165/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8b4787813d8f11dbbb4d83d7c3c3a165/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

28. • See* Model Rules of Professional Conduct, R. 3.4; Model Code of Professional Responsibility, DR 7–106(c)(3)–(4). ↑
29. • See* Model Rules of Professional Conduct, R. 3.3. ↑

30. [Firestone Tire & Rubber Co. v. Risjord,](https://www.westlaw.com/Document/Ic1cf71e59c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic1cf71e59c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 449 U.S. 368 (1981)](https://www.westlaw.com/Document/Ic1cf71e59c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic1cf71e59c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

31. This test was established in T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953) and has been widely followed: *See, e.g., *United States v. LaVallee, 439 F.3d 670 (10th Cir. 2006). ↑

32. • See, e.g.,* Lyman v. St. Jude Medical S.C., Inc., 423 F. Supp. 2d 902 (E.D. Wis. 2006). ↑
33. • See* Model Rules of Professional Conduct, R. 3.7. ↑

34. See **[Street v. BP Expl. & Prod., Inc.](https://www.westlaw.com/Document/I4856c4506f6511ee922bed6f7704f51c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I4856c4506f6511ee922bed6f7704f51c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 85 F4th 266 (5th Cir. 2023)](https://www.westlaw.com/Document/I4856c4506f6511ee922bed6f7704f51c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I4856c4506f6511ee922bed6f7704f51c/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

35. • See, e.g.,* Minn. Stat. § 542.16 (2012); Minn. R. Civ. P. 63.03 (notice of removal may be filed, no grounds necessary). ↑

36. [Fed. R. Civ. P. 79(a)](https://www.westlaw.com/Document/NCEC408F0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCEC408F0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

37. • See* Model Rules of Professional Conduct, R. 1.16(d). ↑

38. Among the rules which permit some relief on the grounds of excusable neglect are Federal Rule 6(b) (extension of time); Rule 13(f) (omitted counterclaims); and Rule 60 (relief from judgments or orders). ↑

39. [Partin v. Olney](https://www.westlaw.com/Document/Ie2e80655f78811d9b386b232635db992/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie2e80655f78811d9b386b232635db992/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 121 Ariz. 448, 591 P. 2d 74 (1978)](https://www.westlaw.com/Document/Ie2e80655f78811d9b386b232635db992/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ie2e80655f78811d9b386b232635db992/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

40. • See *In re TCW/Camil Holding L.L.C., 330 B.R. 117 (D. Del. 2005). ↑