Learn how to strategically draft motions to dismiss and summary judgment that complement each other. Legal Husk shares professional drafting techniques for stronger pretrial success.

Drafting Tips: Making Your Motion to Dismiss and Summary Judgment Work Together

Introduction

When used properly, a motion to dismiss and a motion for summary judgment can work together to dismantle a case in phases—first eliminating weak claims, then showing why the rest can’t proceed to trial. But to do this successfully, each motion must be drafted with both current and future strategy in mind.

This article provides key drafting tips for aligning both motions and maximizing your chances of early case resolution. With Legal Husk’s guidance, you’ll learn how to build a compelling narrative, avoid drafting pitfalls, and write for the judge at every stage of litigation.

Understand the Distinct Purpose of Each Motion

Motion to Dismiss (Rule 12(b)(6))

• Goal: Show the plaintiff failed to state a legally sufficient claim
• Scope: Based only on the pleadings
• Timing: Filed before discovery

Motion for Summary Judgment (Rule 56)

• Goal: Show there are no material facts in dispute
• Scope: Based on evidentiary record (affidavits, depositions, documents)
• Timing: Filed after discovery

Drafting Tip #1: Build a Roadmap in Your Motion to Dismiss

Use your motion to dismiss to begin crafting your litigation story:

• Emphasize weak or conclusory allegations in the complaint
• Highlight legal deficiencies clearly (missing elements, improper parties, etc.)
• Lay groundwork for future factual defenses (e.g., no damages, no causation)

Why It Matters:

Even if the court denies your motion, your arguments can influence how the judge interprets the case later—including at summary judgment.

Drafting Tip #2: Avoid Argument Over Facts in Your Dismissal Motion

Resist the temptation to include extrinsic evidence or factual disputes:

• Stick to the four corners of the complaint
• Use legal citations, not declarations or exhibits
• Avoid converting your motion into one for summary judgment

Pro Tip:

If a key issue is factual, save it for your Rule 56 motion. Judges want to decide legal sufficiency early, and factual arguments prematurely raised can undermine your credibility.

Drafting Tip #3: Use Dismissal to Narrow the Case

Don’t aim for an all-or-nothing win. Draft your dismissal motion to:

• Dismiss individual claims or defendants
• Strike legally deficient requests for relief (e.g., punitive damages)
• Remove vague or redundant allegations

Strategic Benefit:

This can streamline discovery, reduce opposing arguments, and build credibility with the court for later motions.

Drafting Tip #4: Prep for Summary Judgment During Discovery

While discovery unfolds:

• Track facts and admissions that support your defenses
• Identify gaps in the plaintiff’s case
• Obtain clear, admissible evidence to use later in Rule 56

Smart Drafting Begins Early:

• Label documents for easy reference in your motion
• Prepare witness declarations in advance
• Maintain a fact chart tied to legal elements

Drafting Tip #5: Keep Your Motions Thematically Linked

Your summary judgment motion should echo themes raised in your dismissal motion:

• Legal theories
• Definitional issues
• Points of law already accepted by the court

Consistency Matters:

Judges appreciate when litigants present a coherent legal narrative across phases. It makes your position feel more principled and professional.

Drafting Tip #6: Focus Your Statement of Undisputed Facts

In your Rule 56 motion:

• Use numbered paragraphs with pinpoint citations
• Include only material facts (those that affect the outcome)
• Preemptively address what the opposing party will argue

Avoid These Pitfalls:

• Overloading the record
• Using argumentative language
• Forgetting to link facts to legal conclusions

Drafting Tip #7: Conclude With Purpose

Both motions should end with:

• A clear ask (dismiss claims X and Y, or enter judgment)
• A reminder of why dismissal/judgment promotes judicial efficiency
• A brief summary of why the law and facts favor your side

How Legal Husk Helps You Draft Both Motions Successfully

At Legal Husk, we:

• Draft customized, judge-ready motions to dismiss and for summary judgment
• Align legal themes across phases of litigation
• Help organize discovery to support summary judgment
• Cite the most up-to-date case law and procedural rules

📌 Visit us to learn more:

• legalhusk.com
• legalhusk.com/services
• legalhusk.com/services/civil-litigation
• legalhusk.com/about-us

Final Thoughts

Success in litigation is rarely based on a single filing. When your motions are drafted to complement one another, you create a layered, strategic approach that can weaken your opponent at every stage. With Legal Husk’s help, your case will be positioned to win before trial even begins.

📩 Ready to draft motions that work together? Contact Legal Husk and let our experts help you build a persuasive pretrial strategy.