Motion, Motions
Request to a court for a desired ruling or order. A motion can be written or spoken, as the relevant rules require. Various motions can be made throughout a case, but only after the initial complaint has been filed.
There are also motions in Parliamentary Procedure. See Incidental Main Motions and Subsidiary Motions
Types of Legal Motions:
- Adjournment Requests
- Discovery Motions
- Dispositive Motion
- Motion for a Temporary Order
- Motion for a Directed Verdict
- Motion for judgment as a matter of law
- Motion for judgment n.o.v.
- Motion for nolle prosequi
- Motion for Sanctions
- Motion for New Trial
- Motion to Compel
- Motion to Discover
- Motion to Expunge
- Motion to Set Aside Judgment
- Motion to Strike
- Motions after Verdict
- Pre-trial Motions
- Rule 12 (b) (6) Motion to dismiss
A motion is an application to the court made by the prosecutor or defense attorney, requesting that the court make a decision on a certain issue before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony. Only judges decide the outcome of motions.
Laws may contain a syllabus, which consists of the editor’s comments. Never quote a syllabus when writing a brief or motion because it has no factual foundation in law. You go to the supreme court to quote the judge who said it. Make sure you’re on the majority opinion when you quote it. If you are quoting dicta, that is statements from the minority opinion you’re mistaken and if you quote dicta from the majority opinion you must label it as dicta.
You can ask the judge to take some kind of action while your case is ongoing by filing or “making” a motion. A motion is a request that the judge grant some kind of relief related to your court case. There are a few different ways that you can make a motion.
- Oral motion - You can make a motion verbally (orally) while in court. This can be at the initial appearance, at a status appearance, or during a hearing. Usually, you can use an oral motion when the request is not complicated, or if it is an urgent request that you are hoping the judge will grant that day. When you make an oral motion, the other party or his/her attorney can respond by arguing against the motion. The judge will either make a decision during court, hold off on making a decision to consider it further, or the judge might ask you to put the motion into writing.
- Written motion – Each state and jurisdiction may have its own process for filing written motions. To make a motion in writing, you may need several different documents. Your court may have a specific form that needs to be filed for a motion, and you will usually also submit supporting documents like an affidavit in support of the motion, a memorandum of law(if necessary), and exhibits that would be admissible at a hearing. If you have an attorney who is representing you, the motion that s/he files on your behalf would also include an affirmation from your attorney. Some states also require you to file a notice of motion that outlines what you are asking for and sets a time for you to appear in court to present (argue) your motion to the judge. In some situations, you might also make a motion by writing a letter to the judge that explains what you are asking for, and why. Any time you send anything in writing to the judge you must also send a copy to the other party or his/her attorney. The other party would then have a chance to respond.
- Emergency motions – Different jurisdictions will have different ways for a person to file for an emergency order from a judge. This might be called an emergency motion, an order to show cause, a show cause motion, or something else. Generally, a judge will only grant emergency relief if there is some chance that serious harm might result if the temporary relief is not granted. The judge might grant an emergency order, but then schedule a court appearance within a few days. After the appearance, the judge can decide whether or not to grant the requested relief on a more permanent basis.
How do I get the judge to grant my motion?
A judge will make his/her decision on a motion based on the law that applies, the facts of the situation, and the arguments made by the parties for, and against, the motion. The more complicated the situation, the more likely it is that you should put your request in writing so that the judge has a clearer picture of what is going on when making a decision. If you know the statutes or the prior cases that apply to your motion, you can include that information in a “memorandum of law.” A memorandum of law would typically be drafted by a lawyer and explains the legal reason why a motion should or shouldn’t be granted. It may not be necessarily to include a memorandum of law with your motion for a judge to grant it. You can also use an affidavit or several affidavits in support of your motion to show the judge the seriousness of the matter and to support your request for the relief. An affidavit is a sworn statement generally containing first-hand information. You can submit an affidavit for yourself and any other witnesses whose input might be relevant to the situation. Keep in mind that you are under oath when you sign an affidavit and you can only include information that you have personally seen or you know for yourself, not that you have heard from someone else. You might also be able to attach copies of photographs or other documents that you have in your possession to help persuade the judge to grant your motion. These attachments will usually be included as exhibits to an affidavit and the affidavit should include information about where the attachment comes from and why it is important.