Motion Practice:

Research and Writing Issues

� To request an order from the court◦ Usually in connection with a pending case

� Made in civil and criminal cases

� Pick Your Battles◦ Prioritize your client’s issues

◦ Don’t fight if not clearly beneficial.

◦ Motions must be cost effective

� Reflect professional integrity, personal dignity, and respect for the legal system.

� Do not disparage the intelligence, integrity, ethics, morals, of other participants in the proceeding.

� Avoid hostile, demeaning or humiliating words.

Criminal� Violate Laws� Guilty “Beyond

Reasonable Doubt”

� Jail &/or Fines� Pay Restitution� Unanimous Jury

Decision

Civil� Violate Private

Rights� Complaint Filed� Seeks Restitution� “Preponderance of

Evidence”� Doesn’t Have to

Be Unanimous

�Motions for change of venue

�Motions to suppress evidence

�Discovery motions

�Motions to dismiss

�Motions for acquittal

�Motions for new trial

� Motions regarding the pleadings

� Discovery Motions◦ To compel responses, or better responses, to

discovery requests

◦ To limit discovery or “quash” noticed deposition

◦ Motion to preclude. This motion seeks to prevent the non complying party from offering evidence at trial.

� Summary Judgment Motions

� Motions for Judgment as Matter of Law

� Motion for New Trial

� Motion for Relief from Judgment or Order

� Motion to strike all or part of the pleading

◦ Because it is defamatory, irrelevant, inflammatory, etc.

◦ Because the other party did not cooperate during discoveryregarding that point

� Motion for a more definite statement

◦ Also, in some cases, you can ask for a “bill of particulars,” whichspecifies facts left vague in the complaint

� Removal from state court to federal court

◦ This can be done as long as the federal court has jurisdiction

� Change venue/Forum Non Conveniens Motion- Move the litigationto a more appropriate court or state.

� Judgment on the Pleadings◦ If, based on the pleadings, one side or the other is

entitled to judgment as a matter of law, that can be granted now

� Summary Judgment

� Motions In Limine: Motion used before a jury trial has started to try to exclude or limit use of certain evidence at trial, usually because of a lack of foundation, the evidence is speculative, or its probative value is outweighed by undue prejudice.

� In general, motions have their own time limits,which you must observe. When in doubt, call theclerk!

� The motion will only be granted if, based on the evidence submitted, the judge can rule that:

� Summary Judgment is often difficult to obtainbecause there is almost always some viableargument that a “triable issue of material fact”exists. For Summary Judgment to be granted,there must be “no triable issue of materialfact” as to the entire Action.

� Must find that no reasonable trier of fact can findfor one side or the other, even when viewing theevidence in the light most favorable to that party

� Beware – the burden of proof is on the movant:

� All inferences must be taken in favor of the party opposing the motion

� That means- all conclusions drawn from evidentiary materials are viewed in the light most favorable to the party opposing the motion

� However, the parties may concede, or“stipulate,” that the material facts areundisputed, but argue that the other party’s legalposition is incorrect

� A motion is a request for some type of relief from a judge; itseeks an order from the judge.

� Requires a Notice of Motion: A notice of motion will contain notice of the date of the motion, the location of where the motion will be made, and the relief sought. The side making the motion picks the motion date, subject of course, to any local rules.

� A separate memorandum of law can be attached, explainingthe law behind the request and why it should be granted bythe court

� Appropriate affidavits and/or exhibits can be attached

� Obtain hearing date from court

� Moving party serves documents on opposing party and files papers in court

� Basic requirements for a motion :

◦ Must be in writing unless made at a hearing

◦ A statement of what relief you’re seeking

◦ Should have the same caption as the complaint

◦ Grounds for the motion must be stated with particularity

◦ Must be signed by the attorney and have contact info

� Opposing party serves and files “opposition” brief

� Moving party can file and serve a “reply” or a cross motion, which is a motion that is filed only in response to an existing motion, and is made “returnable” the same day.

� Hearing on Motion is at Court’s discretion

� Court issues an order

� Order to Show Cause (or Show Cause Order)

� Order to show cause is often used when time is critical, such as when a child is in danger of being removed from the jurisdiction or when a decision is needed faster than a notice of motion, as when a party needs an restraining order.

� Similar to a notice of motion- Request the same relief

� However, it is “Ex Parte,” meaning the party bringing the motion by order to show cause can submit the motion to the court before the motion is served on the other side. This is unique and unusual.

� The order to show cause usually requests that the court issue an temporary order before the other side responds.

� Identifying legal basis for motion

�Procedural requirements for motions- Rules (Don’t forget the Judge’s own rules)

�Substantive law

From Hames and Ekern, p. 428

� Microsoft Word- Manually or “automatic” by inserting format codes.

� Corel Wordperfect- Automatic

� Microsoft Word- Manually or “automatic” by inserting format codes.

� Corel Wordperfect- Automatic

� Lexis and Westlaw: Automatic

◦ Lexis: Shepard’s Tools add-on to Word

◦West: Drafting Assistant