Drafting Substantive Motions

How can attorneys draft effective substantive motions?

Often, I see attorneys drafting substantive motions poorly, which sometimes costs them wins for clients.

In this episode, I share my top strategies for drafting substantive motions.

I’ll cover:

  • What is a substantive motion and how does it compare to a standard pleading?
  • Pleas to the jurisdiction
  • Motions to reconsider
  • Responding to a substantive motion
  • And more

Mentioned in this episode:


Holly Draper: There are certainly other substantive motions out there. Motions for summary judgment are a good example. I’m sure there are many. And no matter what type of substantive motion it is, this is your opportunity to lay out the law for the judge.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, Attorney Holly Draper.

Holly: Hi, everyone. This is Holly Draper, CEO and Managing Partner at the Draper Law Firm. Welcome to the Texas Family Law Insiders podcast. Today, I wanted to hop on and do a short little solo episode for you about an issue that I see come up a lot with attorneys that our firm is against, where I see a lot of people doing this really poorly. And that is drafting substantive motions.

So what is a substantive motion, and how does that compare to just your standard pleading? A substantive motion should be something that is much more in depth, dives into the facts of your case, dives into the law of your case, and applies the law to the facts of your case. It depends what type of motion it is, but it’s really going to be a lot more of a deep dive into the legal issues in the case than your typical pleading. So with petitions, answers, those types of things that are filed in every case, you’re going to be looking at a very standard form.

If you’re using west forms, or you’re using tech stacks or just your own form bank, you know, everybody’s petitions are going to look pretty similar. Obviously, we’re going to tweak them so that the facts are, you know, the particular provisions that we use fit the facts of our case, and what we’re asking for, but a petition is usually not truly substantive. Today, we’re going to talk about two specific types of substantive motions that I encounter a lot in my practice. One being a plea to the jurisdiction, and another being a motion to reconsider.

There are definitely other types of substantive motions out there, such as motions for summary judgment. And I’m sure there is an exhaustive list of possible substantive motions that you could file in your case, where you’re trying to get a particular legal issue dealt with. And hopefully, the tips that I give about these two types of motions will be helpful for whatever substantive motion you might be working on in the future.

The first thing you want to keep in mind when you are working on any type of substantive motion is whether or not there’s going to be an evidentiary hearing that goes along with it. Or if it’s going to be attorney argument only. If there is an evidentiary hearing, such as on a plea to the jurisdiction, you’re definitely going to need an evidentiary hearing, your motion is going to lay out what you believe will be the evidence presented at that hearing. And you’re going to apply the relevant law to those facts and argue for what the result should be at the end of the hearing.

If you have something that is attorney argument only, which a motion to reconsider would be attorney argument only. Then keep in mind that attorney argument is not evidence for purposes of appeal. Because of that, you want your substantive motion and everything that is in it to be comprehensive. You should not be relying on what you are orally going to say to the judge, because you can never mandamus or appeal on that. It is not going to be helpful. You want it to be in that written motion.

The form of the written motion, in my opinion, should look very different than your traditional pleading. This is a mistake I think a lot of attorneys make where their, quote, substantive motions, lack a lot of substance. And they’ll have it set up as a super basic, maybe it’s a page, maybe it’s two, they just number the paragraphs 1, 2,3, 4, 5 however many there are. And they give a very cursory you know, the petitioner has no standing in this case, and it should be dismissed.

Well, that is not what we need to be doing with our substantive motions. I even sometimes see the arguments thrown in as just a paragraph in a pleading, such as there’s no standing here and it should be dismissed without actually going into the law. So when I’m doing a substantive motion, it’s going to look a lot more like a brief than it does a pleading. It’s going to have different sections, maybe a background and introduction section. It’s going to have an argument section. It’s going to have a conclusion. It’s going to have, if it’s lengthy, subheadings, within that.

So if I’m making more than one argument, or my argument is very long, then I’m going to have subheadings to break that down for the court. You’re gonna want to lay out enough of the background and enough of the facts, and apply the law to the facts in your motion, such that it stands on its own.

You want somebody to be able to pick up your motion that has no knowledge of your case, read it, understand what’s going on, understand what argument you’re making, and what you want to have happen, and why it should, based on the circumstances of your particular case.

I know there’s a lot of people out there who practice in Bexar County, Travis County, there may be other counties out there that do this, where you get a different judge most likely at every hearing that you have. Same court doesn’t hear things over and over, they have a rotating docket.

The court doesn’t even know they’re gonna hear your case sometimes until that day. They don’t have time to review it in advance. I used to think that was really strange, but the more I thought about it, I really like it. And I think attorneys in all counties should approach a substantive motion and hearing like you’re going to have a judge like that.

They don’t know anything about your case. You’re going to put it all in that motion, you’re going to lay out all the relevant background and all the relevant facts, you’re going to lay out all the law and you’re going to apply it in that motion, so that a brand new judge starting that day, can pick up your motion and know exactly what we’re here to talk about, and why they should rule in your favor. If you are responding to a substantive motion, you want to do the same thing. You want it to be more like a brief than a short, little pleading, even if the other side hasn’t done it that way.

Now, sometimes if the other side, let’s say we’re going to be talking about a jurisdictional issue, and the other side has only put one sentence in their pleading, and now they’re going to set a hearing on their jurisdictional issue. I won’t actually file that type of response. Instead, I will do a brief in support of our position, which would have the same information as I would include in a response if they have beefed theirs up.

That way, you know, I’m going to be providing it to the judge in advance, be sure and check your local rules, some make you file that a certain number of days in advance. You can’t just show up the day of the hearing with a brief in your hand and expect it to be considered. But even if the other side doesn’t do their job of properly briefing the issues, you should do yours in your response.

The first type of motion that we’re going to dive into is a plea to the jurisdiction. I’m sure if you listen to this podcast a lot, you know that I do a lot of parent versus non parent custody litigation, and a lot of grandparent cases. So I see pleas to the jurisdiction come up a lot in my practice because that is typically where you’re gonna see it. Where a non parent or grandparent does not meet the requirements of the code or the requirements of the law and have standing to file a particular type of case.

I’m sure there are other situations where it comes up in family law, where we have some type of jurisdictional issue. But it’s going to be the same no matter what your reason is for filing a plea to the jurisdiction. When I’m doing this, I’m going to call it a plea to the jurisdiction. And I’m going to start with background information. This is where you’re going to explain to the courts the facts that are going to support your argument that there is no jurisdiction in this particular case.

If you’re working on a, let’s say, it’s a parent versus non parent case, and somebody’s claiming jurisdiction under 102.003a9. That’s the actual care, control, and possession. You’re going to lay out the background here in a way that explains why that particular person did not have actual care, control, and possession for the required amount of time.

If you’re going to be doing something that has an affidavit as part of the petition related to jurisdiction, for example, on a grandparent access case, you have to have an affidavit that gives facts sufficient to support standing for grandparent access.

If you are trying to modify the primary parent within a year, you have to include an affidavit with the pleading that includes the facts sufficient to back that claim up. So if you have an affidavit like that, filed by the other side, go through that affidavit in the background. Lay out the highlights of, you know, a grandparent case, for example, they have to show in the affidavit facts to support significant impairment. So go through and layout one through five or one through 10, or however many facts they lay out, that they could be relying upon, so that you can go back and show those aren’t sufficient.

Then, once you’ve laid out those facts, you’re going to move into the argument. I always start with kind of a summary of my argument that the petitioner in this case does not have standing because of x. And standing is implicit in the concept of subject matter jurisdiction, and a court cannot decide a case without subject or matter jurisdiction.

Therefore, if the petitioner lacks standing, any subsequent action by the court is going to render that order void. So in the example of a grandparent case, if they did not put forth a good enough affidavit and such that they lacked standing, the case has to be dismissed at that point.

Voiceover: This episode of the Texas Family Law Insider’s podcast is sponsored by the Draper Law Firm, providing family law appellate representation across Texas. For more information, visit draperfirm.com, or call 469-715-6801.

Holly: Then you’re going to want to go through the specific standing statutes that are relevant in your particular case. Sometimes it’s obvious because they’ve pled a particular statute for standing. Sometimes it’s not obvious. This happens quite a bit in parent versus non parent custody litigation, where they just say this person is a relative, or this person has standing generically, and they don’t spell it out. There’s no requirement that there be an affidavit. So you might not really know where they’re going.

But in that case, I would include arguments if we don’t think they have standing under any possible standing statute, I will go through all of the options. And if it’s a non parent, and I know they didn’t have actual care, control, and possession for more than six months, I’m going to say that, and I’m going to lay out the facts in the law for that standing statute.

If that non parent is a relative, and they may be arguing significant impairment, I’m going to go through that standing statute as well. And I’m going to explain why they cannot establish significant impairment, and what the law is, how difficult it is to overcome significant impairment, what type of evidence rises to that level. You’re going to lay out the law, and you’re going to apply it to the facts.

This should almost read like an appellate brief, where if you file a plea to the jurisdiction, and you lose, and you want to appeal, you’re going to be able to take all, you already did all the briefing. You’ve got all the arguments, now you’re going to plug it into an appellate brief. And you’re just going to add the citations from the transcript and beef it up with the facts that came out in the hearing. But if you’re doing it right, you’re gonna have this law all laid out for the judge at that hearing, because it was in your motion.

I always throw in a request for attorney’s fees in a plea to the jurisdiction, you might depending on the type of substantive motion, you may or may not want to include that. And then you know, a conclusion and a prayer. I think a plea to the jurisdiction is the most common thing I see people file very poorly, where they do like a paragraph or two at the most. They’re very generic. This person doesn’t have standing.

I have won many, many pleas to the jurisdiction. And every time I win, I fully believe it’s because I start with this type of really substantive motion, so that the court knows everything they need to know about the law, as it is applied to this case, and why they should rule in my favor.

The next example of a substantive motion that I deal with a lot is a motion to reconsider. And this is something you could file for something temporary. You could file it for a temporary order, you could file it, you know, if the court denied your plea to the jurisdiction or the court granted the other side’s plea to the jurisdiction and you think that I was wrong. I also use it a lot after a final trial. Motion to reconsider, sometimes it’s combined with a motion for new trial. Sometimes it just stands on its own.

But I think in any of those cases, be it a temporary or final, gives you a great opportunity to lay out the law for the judge that is relevant to whatever the issue is and apply it to the facts as they came out in that hearing. Ideally, you will already have a transcript, so that you can cite to that transcript and the exhibits you used and whatnot, in your motion to reconsider.

When I’m doing a motion to reconsider, once again, it’s gonna look more like a brief than it is a pleading. And I think these are great tools if you have an appeal to show, or a mandamus, on something temporary, that we laid the law out there for the judge. So the judge knows, they got it wrong, and this is why, and the judge still did the wrong thing.

You’re going to start with background information. Just how much background information you provide is going to be really contingent upon what you’re filing a motion to reconsider about. If it was a final trial, particularly a lengthy final trial, your background might be pretty long, because you want to go into the specifics of what happened at the trial that are relevant to the issue you want reconsidered.

Next, you’re gonna go into your arguments. And, again, depending on what you want the court to reconsider. Is there one issue, are there multiple issues? Usually, I’m going to have multiple subheadings under the argument section. I will have a summary paragraph at the beginning that explains you know, we’re asking the court to reconsider A, B and C because of X, Y and Z.

Then I’m going to go into A, and we’re going to talk about why, you know, the court got it wrong as to issue A, and you know, what the facts where they came out in the trial or in the hearing, and what the law is, and how when you apply the applicable law to the facts, the results should be different than what the trial judge ultimately did.

If you are citing to a transcripts, either attach the entire transcript as an exhibit and site to the page and possibly the line, depending on how long it is. Sometimes we’ll do almost like a screenshot, if it’s small enough, a screenshot of the transcript and plug it in right there in the motion, so that the judge can see black and white here it is, this is what happens.

You may use exhibits that were used in the trial. Generally, you’re not going to add anything to a motion to reconsider that wasn’t in the trial. Unless, let’s say for example, the judge didn’t let it in, in trial or in your hearing. And you couldn’t do an offer of proof because the court wouldn’t allow it. Or maybe you forgot to do an offer of proof. I would throw that in here. Whether or not it’s going to work, I guess it probably depends on the judge.

But if there’s something important that you think would lead the judge to change their mind, and it, you know, explain why the judge overruled or sustained an objection as to letting this expert testify for whatever reason. And here’s the affidavit of the expert, and what they would have said, something like that.

Another example, let’s say you had a final trial on property issues. And you think the judge got the property division wrong for one reason or another. And let’s say, you think the judge wanted to do a 50/50 split, but they made some sort of a mistake in the data or in whatever their motion was. You could prepare a chart, sort of like a property division chart showing this is what the judge did, and this is what we think it should have been.

Or if you put everything the judge rolled into a chart, it shows it’s a 70/30 split, and we don’t think a 70/30 split is appropriate in the circumstances of this case, and this is why. And you’re going to want to include case law to back that up. And cite to the transcript to show wherever the evidence was to back up, whatever it is that you’re trying to argue.

So a motion to reconsider could be, it should be under most circumstances pretty long. I’ll file motions to reconsider that are eight pages, 10 pages, 20 pages, again, much more similar to an appellate brief than to a simple trial court pleading. If the other side files a motion to reconsider, you want to respond this way as well. You want to cite the relevant portions of the transcript. You want to attach the relevant exhibits that prove why shouldn’t we reconsider why the judge did the right thing.

There may be certain times where the other side files a motion to reconsider that’s so bad or so out of left field that you don’t think it’s worth a response. But if there’s any legitimacy to what they’re arguing, and you want them to lose on their motion to reconsider, I would strongly think about filing a substantive response that goes in depth into the issues, puts out the law as you see it, backs it up with statutes, backs it up with case law and applies it to the facts that came out during the hearing or trial.

There are certainly other substantive motions out there. Motions for summary judgment are a good example. I’m sure there are many. And no matter what type of substantive motion it is, this is your opportunity to lay out the law for the judge. You know, some of our judges out there, our general jurisdiction judges, shoot, even some of our family courts specific judges don’t have a family law background.

And this is your opportunity to lay it out for somebody who may not know the law as it should be applied to this case. So assume that the person reading it will not know. Lay it all out there and give them everything they need to issue a ruling in your favor on that substantive motion.

So I hope that provided a little bit of helpful information for you that you can put into your practice. And I will catch you next time on the Texas Family Law Insiders podcast.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com

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