Motion Practice

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 657-692

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Chapter 16

MOTION PRACTICE

QUICK VIEW

Definition: A motion is an application to a court for an order granting some form of relief, such as requiring

a party or nonparty to act or forbear from acting in a certain way. Motions are usually made in writing and on

notice to the other parties, although some emergency motions may be made ex parte, i.e., without notice.

Scope of Chapter: Rules and techniques common to all motions. Formalities of notice. Requirements for writ-

ten motions, oppositions, briefs and supporting materials. Procedures and tactics for the hearing on a motion.

Special types of motions: ex parte motions; emergency motions; disclosure motions.

Strategies and tactics:

• Prepare motions and supporting materials carefully so that a busy judge quickly understands why relief

should be granted or denied.

• Observe the formalities of motion practice to avoid delay and extraneous arguments about procedure. When

making a motion, consider whether the subject of the motion is crucial to your case. If not, see if you can

work out the dispute with your adversary without making a motion.

• Motion practice varies considerably among counties; you must know your local rules when engaging in

motion practice.

Statutes and rules: Motion practice is governed by TRCP 21 and by rules governing specific motions. Local

court rules may amplify these rules. Disclosure motions are governed by TRCP 191 – 205, 215.

Related topics: TRO’s and Temporary Injunctions, Ch 17; Discovery Disputes, Ch 32; Summary Judgment,

Ch 36; Defaults and Dismissals, Ch 37.

TABLE OF CONTENTS

I. Overview

§16:01 Purpose of Motion Practice

§16:02 Motion Defined

§16:03 Formal vs. Informal Motions

§16:04 Use Informal Motions to Your Advantage

§16:05 Sources of Law

§16:06 Pleadings Distinguished

§16:07 Cross Motions

§16:08 Discovery Motions; Meet and Confer Requirements

§16:09 Conference May Be Required by Local Rule for Other Motions

(Rev. 10, 4/13)

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TEXAS PRETRIAL PRACTICE 16-2

§16:10 Dealing With Uncooperative Counsel

§16:11 Build a Record of Efforts to Confer

§16:12 Strategic Considerations: Should This Motion Be Filed?

II. Motion Docketing Systems

§16:18 Docketing System May Affect Motion Strategy

§16:19 Central Docketing System

§16:20 Modified Central Docketing System

§16:21 Court-by-Court Docketing System

§16:22 Exceptions to General Rules of Docketing Systems

§16:23 Motion Strategy in Court-by-Court System

§16:24 Motion Strategy in a Central Docketing System

III. Preparing, Serving, and Filing the Motion

A. Formal Requirements

§16:30 Pitfalls to Avoid

§16:31 Must Be in Writing

§16:32 Governing Rules

§16:33 Pagination and Other Practical Requirements

§16:34 Name of Court

§16:35 Parties

§16:36 Docket Number

§16:37 Title of Motion

§16:38 Name and Address of Attorney or Moving Party

§16:39 Signature

§16:40 Conference Certificate

§16:41 No Page Limit

§16:42 Appendix

B. Essential Elements of Motion: Notice, Factual Basis, Law

1. NOTICE REQUIREMENTS

§16:48 Manner of Giving Notice

§16:49 Amount of Notice Required

§16:50 Selecting the Hearing Date

§16:51 Decision by Written Submission in Some Counties

§16:52 No Need to Request Oral Argument

2. AFFIDAVITS AND EXHIBITS

§16:58 Use if Motion Is Based on Facts

§16:59 Supporting Papers Should Be Attached

§16:60 Is an Evidentiary Hearing Required?

§16:61 Motions for Which Affidavits Are Specifically Authorized

§16:62 Format of Supporting Affidavits

§16:63 Use of Discovery Documents

§16:64 Judicial Notice

§16:65 Admissibility of Evidence in Affidavits and Documents

§16:66 Authenticating Documents

§16:67 Evidence: Filed With Clerk Before Hearing or Offered in Open Court

(Rev. 1, 12/00)

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3. BRIEF IN SUPPORT OF MOTION

a. Practice and Procedures

§16:72 Brief Generally Not Required

§16:73 Courts Often Rely on Briefs

§16:74 Many Motions Do Not Require a Brief

§16:75 Be Clear and Concise

§16:76 Omit Boilerplate

b. Summary of Argument

§16:82 Summarize Argument at the Beginning

§16:83 Relate Your Argument to the Summary

c. Factual Orientation

§16:88 State Only Relevant Facts

§16:89 Don’t Refer to Facts Not Supported by Affidavits

§16:90 Don’t Hide Adverse Information

d. Citing Authority

§16:96 Citation Principles

§16:97 Consider Submitting Copies of Decisions

e. Styles to Avoid

§16:102 Minimize Rhetoric

§16:103 Avoid Personal Attacks

C. Serving the Motion

1. SERVICE REQUIREMENTS

§16:108 Requirements of TRCP 21

§16:109 Serve All Parties

§16:110 Time for Service

2. METHODS OF FILING AND SERVICE

§16:116 Range of Service Methods Available

§16:117 Mail

§16:118 Telephonic Document Transfer (Fax)

§16:119 Messenger, Private Express, and Parcel Services

3. CERTIFICATE OF SERVICE

§16:124 Requirement

§16:125 Prima Facie Evidence of Service

§16:126 When Defendant Has Not Yet Appeared

D. Filing the Motion

§16:132 Filing by Mail

§16:133 Moving Party Must File Moving Papers

§16:134 Filing Fees

§16:135 When to File

§16:136 Electronic Filing

IV. Opposing the Motion

§16:140 Written Response Not Required Except...

§16:141 You Needn’t Oppose Every Motion

§16:142 Summary Judgment Responses

§16:143 Service and Format

(Rev. 10, 4/13)

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