Civil Litigation - Motion Practice Notes

Motion Practice Overview

  • Understanding motion practice is crucial in civil litigation, involving preparing, serving, and responding to motions, as well as court procedures.

General Characteristics of Motions

  • Definition: Motions are formal requests submitted to a court for a ruling or an order.

  • Filing Requirements:

    • Must be written and filed in court.

    • Must be served on opposing attorneys, with some exceptions (e.g., motions filed directly in court).

  • Nature of Motions:

    • Not classified as pleadings, though they resemble pleadings in form and follow similar formalities.

Preparing Motions

  • Movant refers to the person who initiates the motion.

  • Essential documents included in a motion:

    • Motion itself.

    • Notice of hearing.

    • Affidavits in support of the motion (or declarations).

    • Memorandum of points and authorities supporting the motion.

Drafting an Affidavit

  • Key components for drafting an affidavit (or declaration):

    • Written in the first-person perspective.

    • Initial paragraph should identify the affiant.

    • Specify whether the affidavit supports or opposes the motion.

    • Detail facts supporting or opposing the motion clearly.

Serving and Responding to Motions

  • Service: Similar to the service of an answer in civil litigation.

    • Requires proof of service or a certificate of service.

  • Responses:

    • Typically involves submitting an affidavit in opposition and a memorandum of points and authorities against the motion.

Court Procedures Involving Motions

  • Types of Hearings:

    • Law and motion hearings require arranging a specific time with a judge.

    • Tentative rulings and subsequent orders follow motions.

    • Sanctions may be imposed to deter frivolous motions.

Types of Pretrial Motions

  • Motion to Dismiss: Seeks to dismiss the case for various reasons.

  • Motion for a More Definite Statement: Requests clarity on vague pleadings.

  • Motion to Strike: Aims to remove parts of pleadings.

  • Motion to Amend: Allows for changes or corrections in pleadings.

  • Motion for Judgment on the Pleadings: Asks for a judgment based solely on the pleadings.

  • Motion for Change of Venue: Requests to change the trial location.

  • Motion to Quash Return of Service: Challenges the service of process.

  • Discovery Motions:

    • Motion to Compel: Forces the opposing party to comply with discovery requests.

    • Motion for a Protective Order: Seeks to protect a party or witness from discovery abuses.

  • Motion for Summary Judgment: Requests court judgment based on undisputed facts.

  • Motion for Sanctions: Seeks penalties for violations in the litigation process.

Trial Motions

  • Motion in Limine: Requests to exclude certain evidence from being presented at trial.

  • Motion for Judgment as a Matter of Law: Asks for judgment when evidence overwhelmingly supports one side.

  • Motion for a Directed Verdict: Similar to the motion for judgment, made during trial.

Posttrial Motions

  • Motion for Judgment as a Matter of Law: Again seeks to affirm a decision based on overwhelming evidence.

  • Motion for Judgment Notwithstanding the Verdict: Requests that the court overturn the jury's verdict.

  • Motion for New Trial: Seeks a new trial due to errors in the original trial.

  • Motion to Tax Costs: Requests the court to award costs incurred.

  • Motions for Relief from Judgment or Order: Requests reconsideration of a judgment.

Injunctions

  • Preliminary Injunction:

    • Closely resembles formal noticed motion; filed after a complaint to prevent harm.

    • Requires an affidavit and memorandum to support the request.

  • Temporary Restraining Order (TRO):

    • Granted to prevent immediate and irreparable harm; often precedes a preliminary injunction and resembles an ex parte motion.