Attorney’s Guide to Pre-Trial Motions

A pre-trial motion is a formal request asking a judge to either take action or make a decision on something before a trial begins. It can be anything from removing irrelevant language in an indictment (surplusage) to dismissing the case in its entirety.¹

The “why” behind pre-trial motions usually relates to fairness or efficiency. When a judge can decide on procedure or admissibility beforehand, it streamlines the amount of time spent interrupting a jury trial to argue about each item of evidence or strategy. 

Plus, some questions—like whether a case should move to a different jurisdiction—can’t wait until a trial begins. In fact, even before arraignment in a criminal case, lawyers often begin considering which motions might strengthen their position later on.

Key Takeaways

• Pre-trial motions resolve key issues before trial.
• They improve efficiency and protect client rights.
• Common types include dismissal, summary judgment, suppression, in limine, and discovery.
• Success depends on timing, procedure, and argument strength.
• Strategic motions can influence outcomes and settlements.

Common Types of Pre-Trial Motions

There are numerous pre-trial motions to consider, whether you’re trying a civil or criminal case. Among the most common are: 

Motion to Dismiss

Available for: Both civil and criminal procedures

A successful motion to dismiss is a slam-dunk for the defendant before the game even begins. The motion requests that the judge dismiss the case at once rather than allowing it to proceed to trial, usually by challenging the case’s legal validity or the opposition’s procedural compliance. 

Common arguments supporting a motion to dismiss include: 

• Violation of the defendant’s right to a speedy trial²
• Failure to state a valid legal claim
• Staleness under the statute of limitations
• Lack of jurisdiction over either the defendant or the subject matter
• Improper venue
• Insufficient service of process
• Failure to join a necessary party

When it results in the permanent halt to a case, a motion to dismiss saves time and money for your client. If the dismissal is temporary—allowing the opposition to correct an error before refiling—it results in more preparation time on your end and more speed bumps or roadblocks for your opponents.

In addition to dismissing the entire case, attorneys can request dismissal of some of the multiple charges. Whether the dismissal is granted or denied often depends on the strength of the arguments presented and the governing procedural act that applies.

Motion for Summary Judgment

Available for: Civil procedures only

A motion for summary judgment also requests an immediate halt to the case rather than proceeding to trial. However, while a motion to dismiss can be temporary, a motion for summary judgment results in a definitive finding and a final resolution of the matter.

For a motion for summary judgment to succeed in a federal civil trial, you must prove that³:

1. There is no genuine dispute about any material fact in the case, and
2. Your client is entitled to judgment as a matter of law.

Motion to Suppress Evidence

Available for: Criminal procedures (possible but rare for civil procedures)

Evidentiary rules are complex, going beyond the point of deciding whether an item or testimony is correct. Even if it’s patently truthful, evidence can be excluded from trial if its collection or use can be successfully argued to violate the defendant’s rights. 

Judges may rule in favor of suppressing evidence that violates any of⁴:

• The U.S. Constitution, particularly under the Fourth Amendment
• State constitutions
• A “specific statute that permits such evidence to be excluded”

Motion in Limine 

Available for: Both civil and criminal procedures

A motion in limine refers to a request for a judge to exclude or limit evidence “that could unduly influence a jury or hinder the fair administration of justice.”⁵ Rationales and examples include information that: 

• May unfairly prejudice the jury 
• Is irrelevant
• May cause irreparable harm to a defendant that outweighs its evidentiary value
• Fails the Daubert Standard of assessing expert witness testimony
• Contravenes other applicable rules of evidence

Although it sounds similar to a motion to suppress evidence, the difference is in the rationale behind the suppression. 

Rather than a constitutional violation, a motion in limine seeks to suppress any evidence that violates the governing rules of evidence (such as the Federal Rules of Civil Procedure or the Federal Rules of Criminal Procedure). It’s unconcerned with the source or manner of procuring the evidence, instead focusing on the impact or appropriateness of the evidence at trial. 

Motion to Compel Discovery

Available for: Both civil and criminal procedures

Unlike television and movie depictions, opposing attorneys share most of the facts and evidence that they dig up during discovery—they don’t unveil big surprises during a trial. The process is usually handled between legal teams without court involvement, but in about 25% of cases, litigants resort to filing motions to compel discovery to inspect the opposition’s evidence.⁵

A motion to compel discovery is complex—it can address the exact method of data sharing and bring a judge into play when the opposition seeks to hide key evidence in an avalanche of paper or PDFs. 

Under Federal Rule 34 of Civil Procedure, a motion to compel discovery can identify⁶:

• A preferred format (otherwise it must be provided in a reasonably usable form)
• Categories to use for organization and labeling of files
• A claim that the lack of adherence to the above bullets would provide undue hardship

The Process of Filing and Arguing Pre-Trial Motions

The procedural requirements of filing and arguing pre-trial motions can vary significantly depending on which court hears the case. In order to follow the rules, you need to identify them for each: 

• Jurisdiction – Under what jurisdiction does your case fall, and what published set of procedural rules does it follow? This generally encompasses the divides between criminal and civil cases, as well as scale (federal, state, local) and sometimes specialty (i.e., bankruptcy).

• Court – There may be additional rules and guidelines for a particular local court.

• Judge – What deadlines or special requests for format, etc., are imposed by the assigned judge?

Motions must also align with initial pleadings, ensuring consistency with the claims and defenses already before the court.

Once you know which rules govern your case, attend to: 

• Deadlines – The most critical rule to establish is timing. Motion deadlines are usually based on proximity to key events, such as seven to 30 days before a hearing or after a discovery conference. Deadlines may differ for plaintiffs/government vs. defendants and can also be overruled by the ruling judge. In some cases, if you miss a deadline, it can result in a default judgment or determination that may damage your case. 

• Format – Most pre-trial motions must be filed in writing, although there are some opportunities for verbal motions within certain hearings. As with most legal documentation, some jurisdictions get hyper-focused down to page margins, fonts, bindings, and organization. 

• Accompaniments – You may need to include attachments with your motion, such as a memorandum of law or legal brief, or certifications of service attesting that the opposition has been notified and copied on the motion.

Importantly, the court must comply with its own rules on pre-trial motions. For instance, under Federal Rule 12 of Criminal Procedure, the court must⁷:

• Decide every motion before trial unless there is good cause to defer a ruling on that issue. 
• NOT defer a motion ruling if it will adversely affect a party’s right to appeal
• State essential findings on the record when factual issues are involved 
• Record all motion proceedings

The court also has leniency in many areas—it may or may not: 

• Set a deadline for pretrial motion submissions
• Schedule a discrete motion hearing
• Extend or reset pre-trial motion deadlines before trial
• Consider late submissions if the party shows good cause

Why Pre-Trial Motions Matter for Defendants and Plaintiffs

Pre-trial motions are essential to case management and trial strategy development, allowing attorneys to establish the rules of the game ahead of time. With the right motions, it’s possible to: 

• Suppress problematic evidence and witnesses
• Force the opposition to provide missing or incomplete discovery content
• Change venues to achieve a more impartial jury pool
• Achieve a dismissal or summary judgment for your client’s case

In addition to these immediate results, pre-trial motions can play a key role in achieving a successful case outcome (even when they’re denied) by: 

• Offering deeper insight into the opposition’s strategy 
• Identifying the strength of available evidence in the courtroom
• Facilitating settlement and plea negotiations that leverage the opposition’s weak spots

Working with Litigation Support Services for Pre-Trial Motions

There are a lot of moving parts involved in preparing for a trial. Staying on track requires managing: 

• Hard and soft deadlines for motions and scheduling
• Dependencies that can alter the sequence of different motions
• Assignments and responsibilities (and changes as things shift)
• Unforeseen steps that arise while discovering new information

Working with litigation support partners can streamline the pre-trial process, keeping deadlines, orders, and responsibilities on track. A comprehensive support provider can offer: 

• Court reporting at any location
• Accurate transcription with fast turnaround times
• Realtime transcription
• Evidence organization
• Records retrieval, analysis, and summarization
• Case management

Strengthen Your Case with Pre-Trial Motions

Filing the appropriate pretrial motions allows each lawyer to present a well-prepared case. The right set and sequence of pre-trial motions is essential to a litigation strategy that maximizes successful client outcomes. Motions can strengthen your arguments and evidence, reduce your opponents’ options, and lower client and firm time and cost investments—not to mention, you put your best foot forward with the assigned judge by boosting efficiency and respecting the court’s time. 

The consultants at TrialQuest, the trial services division of U.S. Legal Support, can help you prepare effectively for trial. 

Our team has participated in more than 53,000 high-risk trials, arbitrations, and mediations. We offer next-level strategic litigation consulting, voir dire and jury research, mock trials, witness preparation, multi-media trial graphics and demonstratives, and trial presentation and technology services. 

Connect with us today to learn how we can support your pre-trial process and provide the trial services your team needs.

Sources: 

1. Cornell Law School. Surplusage. https://www.law.cornell.edu/wex/surplusage
2. Eisner Gorin LLP. Pretrial Motions in Federal Criminal Cases. https://www.thefederalcriminalattorneys.com/federal-pretrial-motions
3. Cornell Law School. Federal Rules of Civil Procedure: Rule 56. Summary Judgment. https://www.law.cornell.edu/rules/frcp/rule_56
4. Cornell Law School. Motion to Suppress. https://www.law.cornell.edu/wex/motion_to_suppress
5. Cornell Law School. Motion in Limine. https://www.law.cornell.edu/wex/motion_in_limine
6. Cornell Law School. Federal Rules of Civil Procedure: Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes. https://www.law.cornell.edu/rules/frcp/rule_34
7. Cornell Law School. Federal Rules of Criminal Procedure: Rule 12. Pleadings and Pretrial Motions. https://www.law.cornell.edu/rules/frcrmp/rule_12