Chapter 7: Motion Practice Flashcards
If the attorneys cannot resolve the problems by themselves, a court order is required to settle the issue. The application for such a court order is a motion
Some motions relate to procedural problems with a case, such as motions for an extension of time in which to respond to a complaint. However, motions can also relate to more substantial evidentiary issues in the case, such as motions for summary judgment. The court orders resulting from these motions may actually dispose of the entire case. For example, if a motion for summary judgment is granted, judgment is entered in favor of one party without further court proceedings, and the action in the trial court will end
Except for motions made during the trial, motions must be written, filed in court, and served on the opposing attorneys (or parties, if not represented). If the motion is contested, the opposing attorneys also file papers opposing the motion. Often the written documents are followed by a brief court hearing before the judge rules on the motion
Although they are not considered to be pleadings, motions do resemble pleadings in appearance. The documents filed in a motion follow the same formalities required of pleadings and contain the same caption as the pleadings. As a paralegal, you might be asked to research the law governing the particular motion involved or prepare the written documents that are filed in court. You also might be requested to contact the court to set the motion for a hearing
Preparing, Serving, and Responding
Many different types of motions are possible. Some motions are specifically described by statutes, which explain the procedures and time limits for making such motions. Other motions may be only briefly described, if at all. Regardless of any special procedures that may apply to some motions, certain procedures are common to all motions
Preparation of the Written Papers
The party making the motion, known as the movant or moving party, begins by preparing written papers for service and filing. These papers follow the same general format as pleadings. The written papers filed in making a motion usually include these documents:
- the motion,
- the notice of hearing on the motion,
- affidavits in support of the motion, and
- a memorandum of points and authorities in support of the motion
In motion practice, the term “motion” is used in two different contexts. On one hand, it refers to the whole process of making a request for an order from the court. On the other hand, it also refers to one of the documents filed in support of that request
The document titled “motion” describes the nature of the specific motion, the grounds for the motion, and the relief requested
The “notice of hearing on the motion” is a simple paper stating the place and location of the court hearing
Many courts allow the motion and the notice of hearing to be combined into one document. Motions are commonly supported by affidavits. An affidavit is a statement, under penalty of perjury, sworn to before a notary or other person authorized to administer an oath
textbook definition: the part of a written motion that describes the nature of the motion being made and tells when and where a hearing on the motion will occur
An affidavit usually describes the factual basis for making the motion and is made by a person having personal knowledge of those facts
It can be the statement of the attorney, a party, or a third person. Even though it may be the statement of a party or a witness, the attorney or paralegal normally prepares the document based on what the individual tells them. An affidavit serves the same purpose as testimony from a party or witness and is used in lieu of that testimony. As such, an affidavit should be written in the first person and should contain detailed facts
In some courts, a declaration is used in lieu of an affidavit. Like the affidavit, a declaration is a statement under penalty of perjury, but it is not sworn to before a notary. In drafting an affidavit or declaration, the following general format should be followed:
- The affidavit or declaration is usually, although not always, written in the first person. Even though it may be signed by a party or a witness, it is written by the attorney or paralegal
- The first paragraph should describe the affiant (person making the affidavit) or declarant and describe the person’s relationship to the case. For example, is the affiant the plaintiff, an employee of the plaintiff, an attorney for a party, or does the affiant have some other relationship to the case?
- The affiant should state whether the affidavit is made in support of or in opposition to the motion and describe the general nature of the motion
- The affiant then states the facts supporting of or opposing the motion. This may be done in several short paragraphs. If not obvious from the facts, the affiant should include a brief statement that he or she knows the facts to be true based on his or her own knowledge
Along with a supporting affidavit, most attorneys also support a motion with a “memorandum of points and authorities.”
In some courts this is required. A memorandum of points and authorities is a legal argument in the form of a discussion or analysis of the law (statutes, cases, or constitutional provisions) that applies to the case. If you are asked to help prepare a memorandum of points and authorities, you must research the law that governs the case. Some courts also require that the moving party submit a proposed order for the court to sign at the hearing
textbook definition: a legal argument in the form of an explanation and analysis of the law that applies to the case
Although the general requirements for motion practice are found in the Federal Rules of Civil Procedure or appropriate state laws, the area of motion practice is often the subject of local rules of court, in both federal and state courts
Before preparing any motion, it is imperative that you review all of the laws regulating motion practice in the particular court in which the action is filed. Rule 7 of the Federal Rules of Civil Procedure governs motions in general. Many local courts have additional rules. Usually local rules related to general motion practice also have some variation of the number 7. Specific motions are governed by other Federal Rules as well as other local rules
Service and Filing
The motion and supporting papers must be served on the other parties to the action and filed with the court
Service of motions is similar to service of an answer (by mail, by fax, electronically, or personally). Some courts also require that a separate copy of all papers be sent directly to the judge hearing the motion. This is referred to as a “chambers copy.”
All jurisdictions impose a time requirement for the service of motions
Under the Federal Rules of Civil Procedure, unless changed by a specific statute or court order, the written motion and notice of hearing must be served not later than 14 days before the time set for the hearing. If service is by mail, fax, or electronic means, you must allow an additional three days. Service of motions is governed by Rule 6. Time requirements for filing motions can be changed by court order or by local court rule. You must be careful to check local rules of court regarding this time limit. State courts may have different time requirements, and even some federal courts have local rules that have substantially changed this notice requirement
Should a situation arise making it impossible or impractical to comply with the time requirement imposed by statute or local rule, the courts allow the parties to request that the time be shortened
In a sense, this request is in itself a motion. Courts generally treat this as an “ex parte” motion, meaning that no prior notice need be given nor any court hearing scheduled. If the court grants this request, it is often referred to as an “order shortening time.” The order shortening time is then served on the opposing party with the notice of hearing on the motion and the other moving papers
Service of a motion is usually accomplished by mailing, faxing, or electronically sending copies of the moving papers to the opposing attorneys
Proof of service of the moving papers is in the form of an affidavit or declaration by the person serving the papers and is sometimes known as a “proof of service” or “certificate of service.” The certificate should indicate how service was conducted. The certificate of service should be filed in court prior to the hearing
Responding to Motions
To oppose a motion, an attorney commonly serves and files papers in opposition. These usually consist of affidavits in opposition to the motion and a memorandum of points and authorities in opposition to the motion. These affidavits and the memorandum have the same technical requirements as do the moving papers.
For most motions in federal court, opposing affidavits must be served not later than seven days before the hearing. You must also consult local rules to determine how many copies should be filed and whether a proposed order is required. The time limits vary depending on the state or local rules. In some courts, the moving party is given the opportunity to reply in writing to the opposing papers. As a litigation paralegal, you might be involved in drafting these documents for the attorney’s review
Court Procedures Involving Motions
In addition to written documents, motions often involve court hearings. The attorneys for the moving and responding parties appear before a judge and present oral arguments in support of or in opposition to the motion. The judge considers the written documents and the oral arguments and then makes a decision
After the judge rules on the motion, a written order, reflecting that ruling, must be submitted to the judge for signature. Many courts today allow attorneys to make a “telephone” appearance for motions. This involves telephone conference calls between the judge and the various attorneys. This can save substantial time. Local rules of court control this procedure, although many courts use a service known as a CourtCall (), which facilitates the conference call
Hearings
Because a hearing on the motion is a court appearance, it must be handled by the attorney. However, as a litigation paralegal, you might have some responsibilities in scheduling the hearing. Different courts have different methods of scheduling motion hearings
In some courts motions are heard at set times and in set departments (sometimes referred to as “law and motion”). In other courts you might have to specifically arrange a time with the judge hearing the motion. This is done through the judge’s clerk. Scheduling the motion may require that you call the court, talk to the clerk handling the motion calendar, and arrange for a convenient date
Alternatively, a court might allow you to schedule a date through the court’s Web site without talking to a court clerk
Be sure to check your attorney’s calendar for conflicts. It is also advisable to call the opposing attorneys prior to doing this to schedule the hearing at a time that is convenient for all parties. This eliminates the need for continuing the hearing date. When setting a motion for hearing, be sure that you allow sufficient time for service of the moving papers. Also be sure to check state rules regarding service by mail, fax, or electronic means. State rules may change time limits
Tentative Rulings
Because all moving and responding papers must be filed several days before the scheduled hearing, the judge has the opportunity to review the papers and consider the merits of the motion prior to the time for a hearing on the motion
Many judges feel that the brief oral arguments that take place at the hearing are no more than a repetition of information already in the documents. In an effort to save court time and avoid unnecessary hearings, some courts have adopted the practice of making a tentative ruling prior to the date of the hearing, usually a day or two prior to the hearing. Attorneys (or their paralegals) can then call the court and discover how the judge intends to rule on the motion. In some cases, this information is posted on the Internet. If the attorneys insist, they are still entitled to appear at the scheduled hearing
Orders after Motions
After the motion is heard, the judge makes a ruling, called an “order.” Most courts require that the prevailing party prepare a written order for the judge’s signature. As a litigation paralegal, you might be asked to do this. (Some courts have local rules that require the moving party to submit a proposed order with the moving papers). Sometimes a judge’s ruling on a case is not a simple grant or denial of the motion. Orders can be very involved. If you are asked to prepare an order after a hearing, be sure you know exactly what must be included in the order. The attorney may give you her notes from the hearing, or may simply tell you what to include in the order. In either case, be sure you understand the notes or directions before drafting the order
Sanctions
All courts demand that motions be made or opposed in good faith. To prevent unnecessary or frivolous motions, courts have the power to punish an attorney who abuses the motion process. This punishment often is an award of attorney fees to the opposing side. In some cases, if the court finds the behavior particularly unreasonable or unjustified, the court may find a party or attorney in contempt of court. If a party fails to comply with an order issued after a motion, the court may impose additional sanctions. In some extreme cases the court may even strike the pleadings of one who fails to comply with a court order, making it possible for the other side to win without trial. Should the court grant an order disposing of the case, that order would be immediately appealable
Pretrial Motions
Motions can be made at any time during the litigation process. Consequently, they deal with all aspects of litigation. Pretrial motions deal with issues or problems that arise before the trial occurs. Most often, these motions deal with requests that are ancillary to the primary relief requested in the complaint. These requests or motions often relate to the pleadings, the jurisdiction and venue of the court, and the discovery process. However, some pretrial motions deal with substantive issues that may affect the very right to trial
Motion to Dismiss
A motion to dismiss the action is a request that the court terminate the lawsuit immediately, without a hearing on the merits of the plaintiff’s claim. A motion to dismiss is often made in lieu of an answer, and if granted eliminates the need for an answer. Such a motion can be made for several reasons. In federal proceedings, a motion to dismiss the case is proper when the court lacks subject matter or personal jurisdiction, when venue is improper, when process (the summons) or service of process is insufficient, when the complaint fails to state a claim upon which relief can be granted, or when a necessary party has not been joined (Rule 12 of the Federal Rules)
Motion for a More Definite Statement
If a complaint (or other claim for relief) is so vague and ambiguous that it cannot be understood and responded to, the party required to respond may make a “motion for a more definite statement.” Such a motion is intended to require the claimant to clarify the allegations and make them more intelligible. The moving party is expected to point out the defects in the complaint and explain what details must be added to the claim (Rule 12[e] of the Federal Rules)
textbook definition: a motion made in response to a complaint in which the defendant challenges the clarity or specificity of the complaint
