Many courts use the term standard of review to describe the standards used to decide some trial-level motions.37

Some courts use the term legal standard, motion standard, or pleading standard, which is perhaps the more accurate term.³⁸The term standard of review is less accurate in this situation because the trial court cannot be said to be re-viewing anything: The motion to the trial court represents the first time that any court has viewed the legal argument.

Many motions address routine matters such as requests for extension of time or for discovery. These motions may require little more than a request for action accompanied by the citation to a statute or rule. Other motions, however, may require formal briefing that is similar to the briefing done for appellate courts. Like appellate briefs, motion briefs may be the sole basis for decision: Trial courts frequently decide motions based on the briefs alone, without oral argument.³⁹ The standard of review is particularly important for motions like the motion to dismiss (Fed. R. Civ. P. 12(b)(6)) and the motion for summary judgment (Fed. R. Civ. P. 56(c)).⁴⁰These so-called dispositive motions can “dispose” of a case, at least temporarily, and thus present an important opportunity for advocacy.⁴¹

The standards of review for dispositive motions are based on the trial court’s competing needs to allow access to courts on the one hand and to use judicial resources efficiently and prevent frivolous lawsuits on the other. Counsel, in contrast, may use motion practice strategically, to educate the court as to the issues the case presents, or to narrow the factual or legal issues in dispute.⁴²Whatever your purpose in filing a dispositive motion — or any motion — it is important to know and use the appropriate motion standard of review. The sections below discuss the standards of review for two of the most common dispositive motions and address general methods for using standards of review in motion briefs.