Learn something new every day
More Info... by email
A motion is a written request made by a party in a legal proceeding to the court. It's a formal document that outlines and states the grounds for the request being made of the court. Motions are subject to a variety of technical requirements which vary between jurisdictions. The person submitting the motion is called the movant. There are lots of different types of motions but they generally can be categorized as being one of two types—hearing or non-hearing. As the names of the categories suggest, the difference lies in whether the ruling is produced pursuant to a hearing or not.
Whether a motion is a hearing or non-hearing motion, it will generally include various documents including the moving papers or written memoranda and supporting evidence such as affidavits and exhibits. Hearing motions have the added step of having the attorneys appear before the court to orally argue for their respective positions on the motion.
Whether the motion is a hearing or non-hearing motion, the court will answer the motion by making a ruling. That ruling is generally documented in a minute order or written order produced by either the court clerk or one of the attorneys.
While there are many different types of motions, a motion to dismiss and a motion for summary judgment are two common, or well-known types. A motion to dismiss is made when a party wants some evidence excluded from the trial. A for summary judgment is a request for the court to make a final ruling without actually trying the issue, or more precisely, the cause of action, in court. If the material facts are not disputed, that is, if the only issue is a question of law, not a question of fact, then the court can make it's decision without bringing the issue through the formality of a trial. Trials are held to address issues of fact. Whether the defendant ran a red light or not is a question of fact.
Many motions are commonly made in a given trial. They are not only helpful in reducing trials to the core dispute or disputes but they can also be a helpful tactic in getting evidence for oneself or precluding evidence for one's opponent.
I have had the misfortune of trying to get a No Contact Order dropped. Before you second guess, It was not to prevent me from contacting someone; it was to prevent someone else from contacting me.
My son has battled alcohol and mental health issues most of his life. Last year, out of the blue, for the first time ever, he became violent in front of his children. I asked him to come outside with me and sit and have a cigarette, and he sucker punched me. He began telling he was going to kill me. The officers arrived and were not going to arrest him since he was a resident of my home, until the middle grandchild told them
of him standing over me after he hit me yelling he was going to kill me. The court in its wisdom filed an NCO for the grandchildren (child endangerment) and myself.
Let's roll forward to eight months later. My my son was placed in a program that required him to have a permanent residence. His girlfriend went to court to get the NCO dropped for the children and my son was allowed to move into their apartment. Now this is curious since the grandchild who told the officers of his threat is the principal witness.
A year and a half later, the court refuses to lift the NCO for me. Their stated reasoning is "not inclined to grant this motion." I must mention that when the motion came up before the court, I appeared in support of my son and the motion. I was initially barred from the court by the prosecutor; threatened that if I entered the court my son would be in violation and be rearrested; allowed into court with the provision I would not look in any direction but straight ahead; and had a police officer placed beside me to ensure compliance.
When the time came for the motion, the judge called me to speak, but when I began he let me talk for about 30 seconds and silenced me with, "I am not inclined to grant your motion."
I refiled the motion with help from an attorney. When I went to court to support the motion, it was much the same story. I was told to leave, allowed with restriction, officer placed near me. The difference was I was not called, and the judge simply said, “In regards to the motion before the court in this case, I am going to deny it.” No further comment, and no recognition I was there to speak before the court.
While this may seem frivolous, it has kept me from visiting my grandchildren, prevented any direct contact with them, and prevented even birthday cards, etc., due to the fact that, in the court's opinion, they could be used as communication between my son and me.
We are now a year and a half out and nothing has changed. Due process is taken to mean loosely "fairness," but nothing here has been fair. I feel that being threatened by the court and being denied the chance to speak in support of motions may violate some "law" I am unaware of. Anyone want to weigh in?
Just about anyone can make a motion, but that doesn’t mean that it will be heard. One of the most common reasons not to grant a motion is what is called “lack of standing.” That basically means the judge doesn’t think that you are going to be personally harmed by the case. In other words, it’s a polite way of saying that the merits of the case are none of your business.
If you lack standing, the case basically doesn’t go forward unless someone who can show that they have “standing”—someone who will be impacted by the case—comes forward and successfully files a motion. I think this restriction is good, because it hinders people from filing a bunch of fruity lawsuits.
I was on jury duty some time ago and it was interesting to watch how the case unfolded in the court room. First of all, it wasn’t Dick Tracy or Hollywood. Both parties, prosecutors and defendants, were very methodical in how they presented their cases.
Yes, there were objections here and there but there were also procedural moves like motions to dismiss a piece of evidence when one party thought it was not relevant. When they dismissed the evidence, we were not allowed to consider or weigh that evidence when we went back and did our deliberations.
Another thing I noticed was that there was a lot of “bench” time, where the counsel approached the judge’s bench to present paperwork or explain a legal motion they made in the proceeding. I guess he wanted to ask some clarifying questions and could either sustain or deny the request.
One of our editors will review your suggestion and make changes if warranted. Note that depending on the number of suggestions we receive, this can take anywhere from a few hours to a few days. Thank you for helping to improve wiseGEEK!