All About A Motion

All About A Motion Dan Goodman

The purpose of a motion is to make a demand or request, in writing, to the judge assigned to your case. The party making the demand or request is called the movant. When the judge makes a decision on a motion it is referred to as a ruling. A motion can be of two types, generally, a non-hearing motion or a hearing motion. A non-hearing motion is a motion which will be ruled by the court based on only the motion, and if applicable, any memorandum of law and/ or supporting affidavits and/ or exhibits. A hearing motion is like the non-hearing motion, with the addition of appearance of all the parties before the judge. The appearance has to be scheduled. The purpose of the appearance is to present oral testimony and/ or oral arguments. In some cases, the judge, with respect to a hearing motion, will issue a tentative ruling before the date in which the parties are to appear. The tentative ruling will be based on the judge making a tentative decision on the papers submitted in support of, and in opposition to, the motion. The judge may hold to this tentative ruling, or may change it based on the actual hearing of the parties. At the hearing, the judge may rule on the motion, after the proceedings are completed, or he or she will render a ruling after researching the matter further. If the latter situation arises, the court will mail its ruling to you. If the ruling is given after the hearing is completed it may be oral or written. If oral, then one of parties will have to prepare a written order that represents the court’s ruling. If written, then it may be a minute order or, in some situations, a detailed written order (this may be mailed). Common to both is the requirement that a motion made to the court, is also to be sent to all parties to the suit. This can be done in two ways. The first is personal service. Personal service can only be carried out by an adult (18 years of older) who is not a party to the suit. The motion (now also called moving papers) are personally delivered to all parties to the suit. The adult who delivers the moving papers usually signs a proof of service for doing so. The last is service

by mail. Service by mail can only be carried out by an adult (18 years or older) who is not a party to the case. The one who mails the moving papers, usually the movant, must sign a certificate of service by mail. The proof of service or certificate of service by mail is included with the motion and is filed with the court at the same time the motion is filed. Most motions included a memorandum of law. A memorandum of law is a legal document consisting of legal research supporting the position(s) of the movant. The memorandum of law contains movant’s arguments, (in some situations, a table of authorities; in this form it is called a brief), a conclusion, a statement, and a table of contents. The motion and memorandum of law can be together or separate. There are different motions that can be filed in a court. Common ones are a Motion for Summary Judgement, a Motion to Dismiss, a Motion for Continuance (Postponement), a Motion to Vacate a Judgement, and a Motion for a New Trial. The only difference among them, in general, is the name and its purpose. A motion, lastly, is neither a petition nor a complaint, as these legal documents begin a suit, while a motion is filed during a suit.

© 2009

Dan Goodman