Motion (legal)
Encyclopedia
In law
, a motion is a procedural device to bring a limited, contested issue before a court
for decision. A motion may be thought of as a request to the judge
(or judges) to make a decision about the case
. Motions may be made at any point in administrative
, criminal
or civil proceedings
, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party.
Either way, the nonmovant usually has the opportunity to file and serve opposition papers. Most jurisdictions allow for time for the movant to file reply papers rebutting the points made in the opposition.
Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete. Some courts issue tentative rulings (after which the loser may demand oral argument) while others do not. Depending upon the type of motion and the jurisdiction, the court may simply issue an oral decision from the bench (possibly accompanied by a request to the winner to draft an order for its signature reducing the salient points to writing), take the matter under submission and draft a lengthy written decision and order, or simply fill out a standard court form with check boxes for different outcomes. The court may serve all parties directly with its decision or may serve only the winner and order the winner to serve everyone else in the case.
. As an example, a claim that the defendant
failed to greet the plaintiff while passing the latter on the street, insofar as no legal duty to do so may exist, would be dismissed for failure to state a valid claim: the court must assume the truth of the factual allegations, but may hold that the claim states no cause of action under the applicable substantive law. A claim that has been presented after the statute of limitations
has expired is also subject to dismissal. If granted, the claim is dismissed without any evidence
being presented by the other side. A motion to dismiss has taken the place of the common law demurrer
in most modern civil practice. When a court dismisses a case, many lay persons state the case was "thrown out."
Under Rule 12 of the Federal Rules of Criminal Procedure
, a party may raise by motion any defense
, objection
, or request that the court can determine without a trial of the general issue. Before the trial starts, the motions can be based on defects in instituting the prosecution
, defects in the indictment
or information (which can be challenged at any stage but are generally raised before a trial begins). Pleadings in a federal criminal trial are pleadings in a criminal proceeding are the indictment, the information, and the pleas of not guilty
, guilty
, and nolo contendere
. A motion under Rule 14 can address the statement of the charges (or individual specifications, see below) or the defendants. In these instances, the motion to dismiss is characterized as a "motion to sever charges or defendants."
Under Rule 907, (Rules for Courts-Martial http://www.loc.gov/rr/frd/Military_Law/military-legal-resources-home.html), a motion to dismiss is a request to terminate further proceedings on one or more criminal charges
and specifications on grounds capable of resolution without trial of the general issue of guilt. A motion may be based on nonwaivable grounds (e.g. lack of jurisdiction or the failure to state an offense) and/or waivable grounds (denial of a right to a speedy trial
, statute of limitation, double jeopardy
meaning a person has been previously tried by court-martial
or federal civilian court for the same offense
, pardon
or grant of immunity). Specifications are sometimes referred to as 'counts' or separate instances of a particular offense which are connected to specific factual evidence. A motion may seek to dismiss these specifications, especially if it is so defective it substantially misled the accused, or it is multiplicious.
Multiplicity also known as allied offenses of similar import is the situation where two or more allegations allege the same offense, or a situation where one defined offense necessarily includes another. A counts may also be multiplicious if two or more describe substantially the same misconduct in different ways. For example, assault
and disorderly conduct
may be multiplicious if facts and evidence presented at trial prove that the disorderly conduct consists solely of the assault. That is to say, if all the elements contained in one are all in another they are allied offenses of similar import.
Discovery motions relate to the necessary exchange of information
between the parties. In the common law system
, these motions capture an irreducible tension in the legal system between the right of discovery
and a duty to disclose information to another.
There are numerous practical differences between the discovery expectations and practices in civil and criminal proceedings. The local rules of many courts clarify expectations with respect to civil discovery, in part because these are often poorly understood or are abused as part of a trial strategy. As a result, civil discovery rules pertain to discretionary discovery practices and much of the argument in this respect centers on the proper definition of the scope of the parties requests. Because criminal prosecutions generally implicate a well-defined constitutional guarantee, criminal discovery is much more focused on automatic disclosure principles, which if found to be violated, will trigger the dismissal of the charges.
Rules 7.1 and 26-37 of the Federal Rules of Civil Procedure
, are often cited in combination with a specific local rule to form a basis for a civil discovery motion.
Rule 16, Federal Rules of Criminal Procedure, is the basis for a criminal discovery motion. Rule 906(b)(7), Rules for Courts-Martial a variety of a "motion for appropriate relief" is used as a military law
basis for discovery.
" asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party. This motion is usually only made when sufficient time for discovering all evidence has expired. For summary judgment to be granted in most jurisdictions, a two-part standard must be satisfied: (i) no genuine issue of material fact can be in dispute between the parties, and (ii) the moving party must be entitled to judgment as a matter of law. For example, a claim that a doctor engaged in malpractice
by prescribing a drug could result in summary judgment if the plaintiff failed to obtain expert
testimony
indicating that the drug was improperly prescribed. Motions to dismiss and motions for summary judgment are types of dispositive motion
s.
Rule 56, Federal Rules of Civil Procedure, is the rule which explains the mechanics of a summary judgment motion. As explained in the notes to this rule, summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. Prior to its introduction in the US in 1934, it was used in England for more than 50 years.
In England
motions for summary judgments were used only in cases of liquidated claims, there followed a steady enlargement of the scope of the remedy until it was used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated tort
s and breach of promise
of marriage. English Rules Under the Judicature Act
(The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. New York
was a leader in the adoption of this rule in the US and the success of the method helps account for its current importance as an almost indispensable tool in administrative actions (especially before the Equal Employment Opportunity Commission which adjudicates employment discrimination
claims and the Merit Systems Protection Board
which adjudicates federal employment matters).
The Civil Litigation Management Manual published by the US Judicial Conference directs that these motions be filed at the optimum time and warns that premature motions can be a waste of time and effort. The significant resources needed to prepare and defend against such motions is a major factor which influences litigants
to use them extensively. In many cases, particularly from the defendant's (or defense) perspective, accurate or realistic estimates of the costs and risks of an actual trial are made only after a motion has been denied. Overbroad motions for summary judgment are sometimes designed (again generally by the defense) to make the opponent rehearse their case before trial.
Most summary judgment motions must be filed in accordance with specific rules relating to the content and quality of the information presented to the judge
. Among other things, most motions for summary judgment will require or include: page limits on submissions by counsel
; an instruction to state disputed issues of fact up front; an instruction to state whether there is a governing case; an instruction that all summary judgment motions be accompanied by electronic versions (on a CD-R or DVD-R), in a chambers-compatible format that includes full pinpoint citations and complete deposition and affidavit excerpts to aid in opinion preparation; an instruction that all exhibits submitted conform to specific physical characteristics (i.e. be tabbed with letters or numbers, that pages be sequentially numbered or "Bates-stamped"); an instruction that citations to deposition
or affidavit
testimony must include the appropriate page or paragraph numbers and that citations to other documents or materials must include pinpoint citations. Many judges also ask the parties to prepare form orders with a brief statements of law to help the judge write the decision. A judge generally issues a tentative ruling on the submitted pleadings, and counsel will be offered an opportunity to respond in a later oral argument
. Alternatively, a judge may grant requests for argument in a preargument order which specifies what points will be discussed prior to a decision.
" asks the court to decide that certain evidence may or may not be presented to the jury at the trial. A motion in limine generally addresses issues which would be prejudicial for the jury to hear in open court, even if the other side makes a timely objection which is sustained, and the judge instructs the jury to disregard the evidence. For example, the defendant may ask the court to rule that evidence of a prior conviction that occurred a long time ago should not be allowed into evidence at the trial because it would be more prejudicial
than probative
. If the motion is granted, then evidence regarding the conviction
could not be mentioned in front of the jury, without first approaching the judge outside of the hearing of the jury and obtaining permission. The violation of a motion in limine can result in the court declaring a mistrial.
There are three types of Motions in Limine
1. Inclusionary - A motion asking the court to have something included in the trial.
2. Exclusionary - A motion asking the court to have something excluded in the trial.
3. Preclusionary - A motion asking the court to have something precluded in the trial
" asks the court to rule that the plaintiff
or prosecutor
has not proven the case, and there is no need for the defense to attempt to present evidence. This motion is made after the plaintiff has rested its case, and prior to the defense presenting any evidence. If granted, the court would dismiss the case.
) asks the court to reverse the jury
's verdict on the grounds that the jury could not reasonably have reached such a verdict. This motion is made after the jury's verdict. If granted, the court enters a new verdict. This motion can be used in a criminal case only to reverse a guilty verdict; not guilty verdicts are immune to reversal by the court.
Under Rule 50, Federal Rules of Civil Procedure, the motion for directed verdict and JNOV have been replaced by the motion for judgment as a matter of law (JAMOL), which can be made at the close of the opposing party's evidence and "renewed" after return of the verdict (or after the dismissal of a hung jury
).
Under Rule 29, Federal Rules of Criminal Procedure the "motion for a judgment of acquittal," or Rule 917, Rules for Courts-Martial the "motion for a finding of not guilty," if the evidence presented by the prosecution is insufficient to support a rational finding of guilty, there is no reason to submit the issue to a jury.
" asks the court to vacate or nullify a judgment and/or verdict. Motions may be made at any time after entry of judgment, and in some circumstances years after the case has been closed by the courts. Generally the grounds for the motion cannot be ones which were previously considered when deciding a motion for new trial or on an appeal of the judgment.
" ("not prosecuting") is a motion by a prosecutor or other plaintiff to drop legal charges. n. Latin for "we do not wish to prosecute," which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution's claim, or the district attorney has become convinced the accused is innocent.
" asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient. The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction
the non-complying party for their failure to comply with the discovery requests.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, a motion is a procedural device to bring a limited, contested issue before a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
for decision. A motion may be thought of as a request to the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
(or judges) to make a decision about the case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
. Motions may be made at any point in administrative
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
, criminal
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
or civil proceedings
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party.
How motions are made
Motions may be made in the form of an oral request in open court, which is then summarily granted or denied orally. But today, most motions (especially on dispositive issues that could decide the entire case) are decided after oral argument preceded by the filing and service of legal papers. That is, the movant is usually required to serve advance written notice along with some kind of written legal argument justifying the motion. The legal argument may come in the form of a memorandum of points and authorities supported by affidavits or declarations. Some northeastern U.S. states have a tradition in which the legal argument comes in the form of an affidavit from the attorney, speaking personally as himself on behalf of his client. In contrast, in most U.S. states, the memorandum is written impersonally or as if the client were speaking directly to the court, and the attorney reserves declarations of his own personal knowledge to a separate declaration or affidavit (which are then cited to in the memorandum). One U.S. state, Missouri, uses the term "suggestions" for the memorandum of points and authorities.Either way, the nonmovant usually has the opportunity to file and serve opposition papers. Most jurisdictions allow for time for the movant to file reply papers rebutting the points made in the opposition.
Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete. Some courts issue tentative rulings (after which the loser may demand oral argument) while others do not. Depending upon the type of motion and the jurisdiction, the court may simply issue an oral decision from the bench (possibly accompanied by a request to the winner to draft an order for its signature reducing the salient points to writing), take the matter under submission and draft a lengthy written decision and order, or simply fill out a standard court form with check boxes for different outcomes. The court may serve all parties directly with its decision or may serve only the winner and order the winner to serve everyone else in the case.
Motion to dismiss
A "motion to dismiss" asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedyLegal remedy
A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....
. As an example, a claim that the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
failed to greet the plaintiff while passing the latter on the street, insofar as no legal duty to do so may exist, would be dismissed for failure to state a valid claim: the court must assume the truth of the factual allegations, but may hold that the claim states no cause of action under the applicable substantive law. A claim that has been presented after the statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
has expired is also subject to dismissal. If granted, the claim is dismissed without any evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
being presented by the other side. A motion to dismiss has taken the place of the common law demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
in most modern civil practice. When a court dismisses a case, many lay persons state the case was "thrown out."
Under Rule 12 of the Federal Rules of Criminal Procedure
Federal Rules of Criminal Procedure
The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure...
, a party may raise by motion any defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
, objection
Objection (law)
In the law of the United States of America, an objection is a formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law...
, or request that the court can determine without a trial of the general issue. Before the trial starts, the motions can be based on defects in instituting the prosecution
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
, defects in the indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
or information (which can be challenged at any stage but are generally raised before a trial begins). Pleadings in a federal criminal trial are pleadings in a criminal proceeding are the indictment, the information, and the pleas of not guilty
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
, guilty
Guilt (law)
In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute...
, and nolo contendere
Nolo contendere
is a legal term that comes from the Latin for "I do not wish to contend." It is also referred to as a plea of no contest.In criminal trials, and in some common law jurisdictions, it is a plea where the defendant neither admits nor disputes a charge, serving as an alternative to a pleading of...
. A motion under Rule 14 can address the statement of the charges (or individual specifications, see below) or the defendants. In these instances, the motion to dismiss is characterized as a "motion to sever charges or defendants."
Under Rule 907, (Rules for Courts-Martial http://www.loc.gov/rr/frd/Military_Law/military-legal-resources-home.html), a motion to dismiss is a request to terminate further proceedings on one or more criminal charges
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
and specifications on grounds capable of resolution without trial of the general issue of guilt. A motion may be based on nonwaivable grounds (e.g. lack of jurisdiction or the failure to state an offense) and/or waivable grounds (denial of a right to a speedy trial
Speedy trial
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...
, statute of limitation, double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
meaning a person has been previously tried by court-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
or federal civilian court for the same offense
Offense (law)
In law, an offence is a violation of the criminal law .In England and Wales, as well as in Hong Kong the term "offence" means the same thing as, and is interchangeable with, the term "crime"....
, pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
or grant of immunity). Specifications are sometimes referred to as 'counts' or separate instances of a particular offense which are connected to specific factual evidence. A motion may seek to dismiss these specifications, especially if it is so defective it substantially misled the accused, or it is multiplicious.
Multiplicity also known as allied offenses of similar import is the situation where two or more allegations allege the same offense, or a situation where one defined offense necessarily includes another. A counts may also be multiplicious if two or more describe substantially the same misconduct in different ways. For example, assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
and disorderly conduct
Disorderly conduct
Disorderly conduct is a criminal charge in most jurisdictions in the United States. Typically, disorderly conduct makes it a crime to be drunk in public, to "disturb the peace", or to loiter in certain areas. Many types of unruly conduct may fit the definition of disorderly conduct, as such...
may be multiplicious if facts and evidence presented at trial prove that the disorderly conduct consists solely of the assault. That is to say, if all the elements contained in one are all in another they are allied offenses of similar import.
Discovery motions relate to the necessary exchange of information
Information
Information in its most restricted technical sense is a message or collection of messages that consists of an ordered sequence of symbols, or it is the meaning that can be interpreted from such a message or collection of messages. Information can be recorded or transmitted. It can be recorded as...
between the parties. In the common law system
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, these motions capture an irreducible tension in the legal system between the right of discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
and a duty to disclose information to another.
There are numerous practical differences between the discovery expectations and practices in civil and criminal proceedings. The local rules of many courts clarify expectations with respect to civil discovery, in part because these are often poorly understood or are abused as part of a trial strategy. As a result, civil discovery rules pertain to discretionary discovery practices and much of the argument in this respect centers on the proper definition of the scope of the parties requests. Because criminal prosecutions generally implicate a well-defined constitutional guarantee, criminal discovery is much more focused on automatic disclosure principles, which if found to be violated, will trigger the dismissal of the charges.
Rules 7.1 and 26-37 of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
, are often cited in combination with a specific local rule to form a basis for a civil discovery motion.
Rule 16, Federal Rules of Criminal Procedure, is the basis for a criminal discovery motion. Rule 906(b)(7), Rules for Courts-Martial a variety of a "motion for appropriate relief" is used as a military law
Military law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
basis for discovery.
Motion for summary judgment
A "motion for summary judgmentSummary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
" asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party. This motion is usually only made when sufficient time for discovering all evidence has expired. For summary judgment to be granted in most jurisdictions, a two-part standard must be satisfied: (i) no genuine issue of material fact can be in dispute between the parties, and (ii) the moving party must be entitled to judgment as a matter of law. For example, a claim that a doctor engaged in malpractice
Malpractice
In law, malpractice is a type of negligence in, which the professional under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers harm...
by prescribing a drug could result in summary judgment if the plaintiff failed to obtain expert
Expert witness
An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
indicating that the drug was improperly prescribed. Motions to dismiss and motions for summary judgment are types of dispositive motion
Dispositive motion
In law, a dispositive motion is a motion seeking a trial court order entirely disposing of one or more claims in favor of the moving party without need for further trial court proceedings. "To dispose" of a claim means to decide the claim in favor of one or another party...
s.
Rule 56, Federal Rules of Civil Procedure, is the rule which explains the mechanics of a summary judgment motion. As explained in the notes to this rule, summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. Prior to its introduction in the US in 1934, it was used in England for more than 50 years.
In England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
motions for summary judgments were used only in cases of liquidated claims, there followed a steady enlargement of the scope of the remedy until it was used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s and breach of promise
Breach of promise
Breach of promise is a former common law tort.From at least medieval times until the early 20th century, a man's promise of engagement to marry a woman was considered, in many jurisdictions, a legally binding contract...
of marriage. English Rules Under the Judicature Act
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...
(The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
was a leader in the adoption of this rule in the US and the success of the method helps account for its current importance as an almost indispensable tool in administrative actions (especially before the Equal Employment Opportunity Commission which adjudicates employment discrimination
Employment discrimination
Employment discrimination is discrimination in hiring, promotion, job assignment, termination, and compensation. It includes various types of harassment....
claims and the Merit Systems Protection Board
United States Merit Systems Protection Board
The Merit Systems Protection Board is an independent quasi-judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management...
which adjudicates federal employment matters).
The Civil Litigation Management Manual published by the US Judicial Conference directs that these motions be filed at the optimum time and warns that premature motions can be a waste of time and effort. The significant resources needed to prepare and defend against such motions is a major factor which influences litigants
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
to use them extensively. In many cases, particularly from the defendant's (or defense) perspective, accurate or realistic estimates of the costs and risks of an actual trial are made only after a motion has been denied. Overbroad motions for summary judgment are sometimes designed (again generally by the defense) to make the opponent rehearse their case before trial.
Most summary judgment motions must be filed in accordance with specific rules relating to the content and quality of the information presented to the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
. Among other things, most motions for summary judgment will require or include: page limits on submissions by counsel
Counsel
A counsel or a counselor gives advice, more particularly in legal matters.-U.K. and Ireland:The legal system in England uses the term counsel as an approximate synonym for a barrister-at-law, and may apply it to mean either a single person who pleads a cause, or collectively, the body of barristers...
; an instruction to state disputed issues of fact up front; an instruction to state whether there is a governing case; an instruction that all summary judgment motions be accompanied by electronic versions (on a CD-R or DVD-R), in a chambers-compatible format that includes full pinpoint citations and complete deposition and affidavit excerpts to aid in opinion preparation; an instruction that all exhibits submitted conform to specific physical characteristics (i.e. be tabbed with letters or numbers, that pages be sequentially numbered or "Bates-stamped"); an instruction that citations to deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
or affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
testimony must include the appropriate page or paragraph numbers and that citations to other documents or materials must include pinpoint citations. Many judges also ask the parties to prepare form orders with a brief statements of law to help the judge write the decision. A judge generally issues a tentative ruling on the submitted pleadings, and counsel will be offered an opportunity to respond in a later oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
. Alternatively, a judge may grant requests for argument in a preargument order which specifies what points will be discussed prior to a decision.
Motion in limine
A "motion in limineIn limine
Motion in limine is a legal written "request" or motion to a judge which can be used for civil or criminal proceedings and at the State or Federal level. A frequent use is at a pre-trial hearing or during an actual trial requesting that the judge rule that certain testimony regarding evidence or...
" asks the court to decide that certain evidence may or may not be presented to the jury at the trial. A motion in limine generally addresses issues which would be prejudicial for the jury to hear in open court, even if the other side makes a timely objection which is sustained, and the judge instructs the jury to disregard the evidence. For example, the defendant may ask the court to rule that evidence of a prior conviction that occurred a long time ago should not be allowed into evidence at the trial because it would be more prejudicial
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
than probative
Probative
Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove."...
. If the motion is granted, then evidence regarding the conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
could not be mentioned in front of the jury, without first approaching the judge outside of the hearing of the jury and obtaining permission. The violation of a motion in limine can result in the court declaring a mistrial.
There are three types of Motions in Limine
1. Inclusionary - A motion asking the court to have something included in the trial.
2. Exclusionary - A motion asking the court to have something excluded in the trial.
3. Preclusionary - A motion asking the court to have something precluded in the trial
Motion for a directed verdict
A "motion for a directed verdictDirected verdict
In a jury trial, a directed verdict is an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary...
" asks the court to rule that the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
or prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
has not proven the case, and there is no need for the defense to attempt to present evidence. This motion is made after the plaintiff has rested its case, and prior to the defense presenting any evidence. If granted, the court would dismiss the case.
Motion for judgment n.o.v.
A "motion for judgment n.o.v." (non obstante veredicto, or notwithstanding the verdictVerdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...
) asks the court to reverse the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
's verdict on the grounds that the jury could not reasonably have reached such a verdict. This motion is made after the jury's verdict. If granted, the court enters a new verdict. This motion can be used in a criminal case only to reverse a guilty verdict; not guilty verdicts are immune to reversal by the court.
Under Rule 50, Federal Rules of Civil Procedure, the motion for directed verdict and JNOV have been replaced by the motion for judgment as a matter of law (JAMOL), which can be made at the close of the opposing party's evidence and "renewed" after return of the verdict (or after the dismissal of a hung jury
Hung jury
A hung jury or deadlocked jury is a jury that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation and is unable to change its votes due to severe differences of opinion.- England and Wales :...
).
Under Rule 29, Federal Rules of Criminal Procedure the "motion for a judgment of acquittal," or Rule 917, Rules for Courts-Martial the "motion for a finding of not guilty," if the evidence presented by the prosecution is insufficient to support a rational finding of guilty, there is no reason to submit the issue to a jury.
Motion for new trial
A motion for new trial asks to overturn or set aside a court's decision or jury verdict. Such a motion is proposed by a party who is dissatisfied with the end result of a case. This motion must be based on some vital error in the court's handling of the trial, such as the admission or exclusion of key evidence, or an incorrect instruction to the jury. Generally the motion is filed within a short time after the trial (7–30 days) and is decided prior to the lodging of an appeal. In some jurisdictions, a motion for new trial which is not ruled upon by a set period of time automatically is deemed to be denied.Motion to set aside judgment
A "motion to set aside judgmentMotion to set aside judgment
In law, a motion to set aside judgment is an application to overturn or set aside a court's judgment, verdict or other final ruling in a case. Such a motion is proposed by a party who is dissatisfied with the end result of a case. Motions may be made at any time after entry of judgment, and in some...
" asks the court to vacate or nullify a judgment and/or verdict. Motions may be made at any time after entry of judgment, and in some circumstances years after the case has been closed by the courts. Generally the grounds for the motion cannot be ones which were previously considered when deciding a motion for new trial or on an appeal of the judgment.
Motion for nolle prosequi
A "motion for nolle prosequiNolle prosequi
Nolle prosequi is legal term of art and a Latin legal phrase meaning "to be unwilling to pursue", a phrase amounting to "please do not prosecute". It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges...
" ("not prosecuting") is a motion by a prosecutor or other plaintiff to drop legal charges. n. Latin for "we do not wish to prosecute," which is a declaration made to the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before or during trial, meaning the case against the defendant is being dropped. The statement is an admission that the charges cannot be proved, that evidence has demonstrated either innocence or a fatal flaw in the prosecution's claim, or the district attorney has become convinced the accused is innocent.
Motion to compel
A "motion to compelMotion to compel
A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses...
" asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient. The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction
Sanctions (law)
Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines...
the non-complying party for their failure to comply with the discovery requests.
See also
- PleadingPleadingIn law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
- Motion for leaveMotion for leaveA motion for leave is a motion filed with the court seeking permission to deviate from an established rule or procedure of the court.The most common use of a motion for leave is to seek an extension to an already-passed timeframe....
- Dispositive motionDispositive motionIn law, a dispositive motion is a motion seeking a trial court order entirely disposing of one or more claims in favor of the moving party without need for further trial court proceedings. "To dispose" of a claim means to decide the claim in favor of one or another party...
- JudgmentJudgmentA judgment , in a legal context, is synonymous with the formal decision made by a court following a lawsuit. At the same time the court may also make a range of court orders, such as imposing a sentence upon a guilty defendant in a criminal matter, or providing a remedy for the plaintiff in a civil...