9.1.1 MOTION BRIEF INTRODUCTIONS
The introduction in a motion brief presents the issue in its legal and factual context. In the introduction, you should inform the court about the issue or issues before it and about the precise procedural step you are asking it to take.
The introduction should be specific, mentioning parties by name, not just by procedural status, and clarifying the issue that is before the court on the motion:
BAD EXAMPLE
This motion arises out of a Title VII action. Defendant has filed a motion to dismiss because the Plaintiff has failed to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). This memorandum is filed in support of Defendant’s Motion.
This introduction provides bare procedural information in that it tells the court that it is being asked to grant a motion to dismiss a Title VII action. It does not, however, clarify the narrow issue that is before the court, identify facts needed for context, or name the specific grounds for the defendant’s motion, as the following example does:
GOOD EXAMPLE
This Motion arises out of an action alleging sexual harassment under Title VII, 42 U.S.C. § 2000e-2. Plaintiff Lynda Garrett alleges Title VII violations by Defendants Gary Kirkby, her supervisor, and MarvinKobacker, their mutual employer. Defendant Gary Kirkby has filed this Motion to Dismiss as to himself alone under Fed. R. Civ. P. 12(b) (6). The Complaint fails to state a claim upon which relief can be granted against Defendant Kirkby because he is a supervisor and cannot be held individually liable as an “employer” under 42 U.S.C. § 2000e(b). This Memorandum is filed in support of Mr. Kirkby’s Motion.
This introduction tells the reader that this is a sexual harassment case, not just a Title VII case. It reveals that the ground for the motion is the assertion that supervisors cannot be held individually liable as “employers.” In addition to providing the factual context that this is a sexual harassment case in the employment context, the introduction reveals that although there are two defendants, only one has filed this motion to dismiss.
The introduction is important in a motion brief because motions frequently address issues that are separate from the merits of the case. By writing a clear introduction, counsel provides needed context to the court that will enable it to better understand the rest of the brief. Although the introduction is not the place for strident argumentation, you can be mildly persuasive in your phrasing.