If you are a plaintiff to a lawsuit, you are asking the court to do something for you. In most personal injury cases, you are asking the court to award damages in your favor, typically by way of the jury. Throughout the course of the lawsuit, there are going to be other “lesser” things that you are going to ask the court to do. For example, perhaps you want the court to exclude certain evidence, protect certain information in discovery, or even dispose of the case without ever having to set foot in a courtroom. Considering that courts are formalized tribunals, you cannot just make a call or send them a letter. This is where a motion comes into play.
Motions and Motions Practice
So really, the concept behind a motion is fairly simple. It is a formalized way of asking a court to do something. In motion practice, the pressure is on the parties, not the court. By this, I mean that courts do not file their own motions and direct themselves. The parties are responsible for directing the court’s attention to the issues that can be addressed via motion. In order to do this, a memorandum of points and authorities typically accompanies a motion. This lays out the legal justifications behind why a court should grant or deny a motion and usually includes a statement explaining why they can bring the motion in the first place. Motion practice is not a single-party effort either. The other side has the opportunity to respond to the motion with their own points and authorities. Here, the parties will present oral argument and evidence to the judge as to why they should grant or deny a motion. It is ultimately up to the judge whether to grant a hearing, however some rules require a judge to hold one before granting a party’s motion.
There is a huge strategical underpinning behind motions given how they have the potential to determine how a case will play out or whether it will even continue. I will address some of these types of motions below. However, it is important to realize that there are time requirements for motions, such as when they can be filed and by which date they must be responded to. This has big implications because certain motions are waived if you do not raise them before certain times.
Of course, these are considerations that are generally brought up when dealing with pre-trial motions. Post-trial motions are similar, except instead of asking the court to do something in anticipation of trial, you are asking them to change something about the decision that was made or trying get a new trial altogether.
Types of Motions
Here are some of the most common motions that you come across in civil litigation:
- Motion in Limine – “Limine” is latin for “at the threshold.” It is rather appropriate then that this type of motion attempts to prevent evidence from entering into the litigation and trial. A motion in limine is filed by a party who wants to prevent the other side from introducing evidence or testimony that is inadmissible.
- Motion to Dismiss – A motion to dismiss is fairly self explanatory; a party is requesting the court to dismiss the case. There are a couple different reasons why a court would do that. Perhaps they lack jurisdiction; maybe it was filed after the statute of limitations has expired. There is also a motion to dismiss for “failure to state a claim.” Here, a defendant is requesting dismissal because the plaintiff’s case has not sufficiently put forth a legal cause of action.
- Motion for Summary Judgment – This type of motion is generally filed when both parties have filed their complaints and engaged in discovery. Before trial, a party may seek summary judgment, which is essentially a way of saying that after all of the facts have come out in discovery, there is no legitimate legal dispute between the parties. Stated another way, the facts essential to resolving the case are not in dispute, so there is no need for a fact-finder (jury).
- Motion for Judgment Notwithstanding the Verdict (JNOV) – This is one of those post-trial motions I mentioned above. After a verdict comes in, this motion asks the judge to set aside whatever the verdict was. In order for a judge to grant this type of motion, they will have to conclude that no reasonable jury could have come to the conclusion that was reached in the case. This is a lofty standard, meaning these motions are rarely granted.
- Motion to Amend Judgment – Another post-trial motion, this one attempts to correct substantive issues pertaining to a judgment. For example, say a jury determines that the defendant should pay 100% of the plaintiff’s medical expenses, but issues a verdict for $10,000 less than all of those expenses. A motion to amend judgment could be filed to correct that mistake if the jury actually intended to award full costs.
- Motion for a New Trial – You can probably gather what this motion is for. The main difference between this and a JNOV is that the judge is not entering an opposite verdict than the jury’s, only granting a new trial in the case.
This list has only scratched the surface of motions practice. However, writing and filing motions is a huge aspect of civil litigation, meaning you really need a skilled lawyer to make the most of any litigation.