Motion

MOTION

A written or oral application made to a court or judge to obtain a ruling or order directing that some act be done in favor of the applicant. The applicant is known as the moving party, or the movant.

In the U.S. judicial system, procedural rules require most motions to be made in writing and can require that written notice be given in advance of a motion being made. Written motions specify what action the movant is requesting and the reasons, or grounds, for the request. A written motion may contain citations to case law or statutes that support the motion. A motion almost always contains a recitation of the facts of the case or the situation prompting the movant to make the request.

For example, suppose that a plaintiff in a lawsuit has refused to submit to a deposition—questioning under oath—by the defendant. The defendant therefore files a motion with the court to compel in an effort to compel the plaintiff to attend the deposition. The written motion briefly explains the nature of the lawsuit, describes the efforts made by the defendant to get the plaintiff to submit to a deposition, addresses any known reasons for the plaintiff's failure to cooperate, and recites the statute that permits the taking of depositions in civil litigation. The motion may also request that the issue be addressed at a hearing before the judge with all parties present.

Once the judge receives the motion, he or she may grant or deny the motion based solely on its contents. In the alternative, the judge may schedule a hearing. At a motion hearing, each party has an opportunity to argue its position orally, and the judge can ask specific questions about the facts or the law. The judge's decision on the motion is called an order.

Under some circumstances motions can be made orally. Oral motions frequently occur during trials, when it is impractical to draft a written motion. A common oral motion occurs during witness testimony. Witnesses sometimes give inadmissible testimony before an attorney can object. When that happens, the attorney must object and move the court to strike the inadmissible testimony from the record. Motions for mistrial—made when courtroom proceedings are fraught with errors, inadmissible evidence, or disruptions so prejudicial to a party's case that justice cannot be served—often are made orally. Sometimes judges themselves take action on

behalf of a party, such as changing or adding necessary language to a pleading without a motion from a party. This is known as making an amendment on the court's own motion.

A motion to dismiss asks the court to dismiss an action because the initial pleading, or complaint, fails to state a cause of action or claim for which the law provides a remedy. For example, a complaint alleges that an employer unfairly fired an employee but does not allege illegal discrimination or labor practices. Merely firing an employee for unfair reasons is not illegal; thus a court may dismiss this complaint.

A motion to strike asks the court to remove from the record inadmissible evidence or language in pleadings that is redundant, immaterial, impertinent, or scandalous. A party can file a motion for a more definite statement when the language in a pleading is so vague or ambiguous that the party cannot reasonably be expected to draft a responsive pleading.

A motion for summary judgment, also known as a motion for judgment on the pleadings, asks the court to make a judgment solely on the facts set forth in the pleadings, without the necessity of trial. A court will grant a summary judgment motion when the material facts of the case are not in dispute and all that remains to be determined are questions of law. For example, in Stieber v. Journal Publishing Co., 120 N. M. 270, 901 P.2d 201 (App. 1995), the court found that the issue of whether a newspaper company's treatment of a reporter was extreme and outrageous was a legal question, not a factual question. In that case the reporter, Tamar Stieber, sued her employer for, among other things, intentional infliction of emotional distress. Stieber charged that the newspaper asked her to write so many daily stories that she could not perform her duties as a special projects reporter. To recover for the tort of intentional infliction of emotional distress, the court noted, Stieber had to prove that the newspaper's conduct was so extreme and outrageous as to go "beyond all possible boundaries of decency, and to be regarded as atrocious, and utterly intolerable in civilized community." The court ruled that as a matter of law, Stieber failed to prove this allegation, and the lower court's summary judgment was affirmed.

A motion in limine, also made before trial, asks the court to prohibit an opposing party from offering evidence or referring to matters that would be highly prejudicial to the movant during a trial. A motion to suppress is similar to a motion in limine but asks the court to keep out of a criminal trial evidence that was obtained illegally, usually in violation of the Fourth, Fifth, or Sixth Amendments to the U.S. Constitution. For example, a defendant in a murder trial may move the court to suppress her confession because she was questioned without being told of her right to have an attorney present.

Following a trial but before a jury verdict, a party may move for a directed verdict, asking the judge to make a judgment without letting the jury reach a verdict. Following a jury verdict, a party may move for judgment notwithstanding the verdict, or JNOV. This motion requests that the court enter a judgment contrary to the jury verdict, and is granted when no reasonable jury could have reached that verdict. A motion for a new trial asks the judge to order a new trial, setting aside the judgment or verdict, because the trial was improper or unfair. This motion is sometimes brought as the result of newly discovered evidence.

further readings

Dessem, R. Lawrence. 2001. Pretrial Litigation in a Nutshell. 3d ed. St. Paul, Minn.: West Group.

cross-references

Civil Procedure; Criminal Procedure.