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The Bar Bulletin
Jax Daily Record Thursday, Sep. 2, 202105:00 AM EST

From the Bench: Considerations for pretrial motion practice

Careful, thoughtful and detailed planning and execution are the keys to success.
Judge Gary Wilkinson

By Judge Gary Wilkinson • 4th Circuit

Motion practice is a vital part of litigation. The decision to file or defend can be critical to your case.

The ultimate question must always be: How does the prosecution or defense of this motion advance the interests of my client?

Think strategically

Consider the strategy of filing or defending with the overall strategy of the case. Just because you can file or defend does not mean you should. Always consider your opponent’s possible reactions. Are you comfortable with the other side seeking the same relief you are requesting?  

If you decide to go forward, there are two primary components of successful motion practice – education and persuasion.


Start with an outline, even a simple one if the argument is not complex. Headline with key points and then go smaller with supporting facts and citations. If the outline is thoughtful, well organized and strategic, the motion or defense likely will be as well. It also will serve you well as an outline for oral argument.

What are the statutes and rules of procedure that are applicable to the motion or defense and the relief you seek? It is critical to effective motion practice to consider them, review them and address them as needed in the motion and at hearing.

The precise provisions of rules and statutes are easily forgotten or confused. Moreover, rules and statutes frequently change.  You do not want to find out at hearing that your assumption is inaccurate, or worse, the rule or statute has changed. 

It also is fundamental to good practice, yet often neglected, to cite the rules and statutes upon which your motion or defense is based. Attach copies of the rule or statute to your motion or response and highlight the pertinent components.  

It is easier for the court if the key cases you intend to rely upon are found near the beginning rather than in the middle or toward the end. If your motion or response is going to be more than a couple of pages, consider a “summary of argument” in the beginning, particularly if there is a key quote from a case on point that speaks directly to the issue.   

It is important to consider the judge hearing your case. What is his or her background? What is his or her familiarity with this topic? Has he or she ruled on the same issue in other cases?   


Lead with strength and tell the court the precise relief you are seeking and why your client is entitled to it. Be concise, using short, simple declarative sentences.

Address your weaknesses and explain why they do not control the outcome. When addressing your opponent’s weaknesses, always avoid personal attacks and hyperbole. In addition to being unprofessional, such attacks frequently signal to the court a lack of confidence in your client’s position.     

Motion practice can be enormously consequential for your client. As with all legal practice, careful, thoughtful and detailed planning and execution are the keys to success.  

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