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Civil Litigation

   Chapter 9
 Motion Practice
Purpose of Motions
• Motions are used to request the court to
  act upon an issue in a case
Timing of Motions
• Pre-trial
    Includes Discovery Motions
• Trial
• Post-trial
Components of Motion
•   Notice of Motion
•   Supporting Affidavit
•   Supporting Exhibits
•   Certification of Service
•   Proposed Order
Notice of Motion
Supporting Affidavit
Supporting Exhibit
Certification of Service
• Document to certify that the motion
  package has been served on the
  adversary
Proposed Order
• A motion seeks the court to act
• The court generally acts by issuing an
  order
• The proposed order is drafted so the
  judge can rule on the motion and sign
  the order that was submitted with it
Benefits of Proposed Order
• Speed; that is, upon a decision, the
  order can be signed immediately
• Clarity; that is, this order describes what
  is sought by the moving party
Motions to Dismiss
• Rather than file an Answer some
  litigants may rely upon a motion to
  dismiss the litigation
• Motion to Dismiss suggests plaintiff’s
  complaint is fundamentally flawed
Responses to Motion to
          Dismiss
• Reply and contest basis for motion to
  dismiss
• Some flaws in the Complaint may be
  satisfied by filing an Amended
  Complaint with the “missing” information
  now included
Motion for Judgment on the
           Pleadings
• At the close of pleadings
• May be file by either plaintiff or
  defendant
• Seeks dismissal, while assuming all
  facts as plead are true
• Asserts there is a fundamental legal
  flaw in opponent’s cause of action
Motion for Entry of Default
           Judgment
• Failure to answer within time, may result
  in the entry of default
• In federal court, entry of default
  prevents other side from filing answer
• If damages not readily
  assessed, plaintiff must move before
  the court to determine damage amount
Motion to Vacate Default
• This motion seeks to reopen a default
  judgment
• Usually requires a good reason for the
  failure to answer
• Many jurisdictions will also require that
  the defaulted party has a valid defense
  to the complaint
Motion for Request for
 Extension of Time to Answer
• When agreement from plaintiff is not
  able to be obtained
• This motion seeks more time from the
  court to answer the complaint
Discovery Motions I
• During the discovery process, many
  motions may be used to either compel
  compliance or protect a party from
  harassment or unduly burdensome
  requests
Discovery Motions II
• When a party has failed to answer or
  satisfactorily answer a discover
  request, a Motion to Compel is often
  used
• Many jurisdictions require counsel to
  confer in effort to avoid filing discovery
  motions
Discovery Motions III
• A party receiving a discovery request
  will sometimes seek court’s protection
  from some requests
• Usually requires a showing that the
  request is unduly burdensome
Protective Order
• Party seeking protection from a
  discovery request will seek a protective
  order
• Protective order will determine limits of
  the need to respond to discovery
  request
Pre-Trial Motion
• Motion for Summary Judgment
Motion for Summary
           Judgment I
• Seeks dismissal as there is no serious
  factual dispute
• No need for a finding of fact, just
  decision on the law
Motion for Summary
           Judgment II
• Differs from earlier motion to dismiss
• This motion relies on
  pleadings, discovery
  responses, affidavits
• Judgment can be granted on a partial
  basis; that is, may not resolve all
  counts, but only some
Motion for Summary
          Judgment III
• Summary judgment motion may be
  defeated if, in response to the motion,
  the adversary is able to show there is a
  material factual dispute
• This material factual dispute has to be
  resolved at a trial
Motions During Trial
• Motions during trial are not always
  anticipated and unlike most other
  motions will be oral
Motion to Mold Verdict
• Occasionally a decision will require the
  intervention of the court to shape the
  decision to the facts of the case

• In a case of comparative
  negligence, the court may have to mold
  the verdict to reflect the dollar amount of
  a verdict based on the liability
  determined
Judgment N.O.V.
• Also known as a Motion for a Judgment
  As a Matter of Law
• This is a rare motion that asks the judge
  to set aside a verdict of a jury
Motion for a New Trial

• Seeks new trial based on errors during
  trial
• Usually made to the judge that heard
  the case
• Usually made shortly after decision
• Usually a requirement to file an appeal

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Chapter 9 nine motion practicce civ lit 2nd

  • 1. Civil Litigation Chapter 9 Motion Practice
  • 2. Purpose of Motions • Motions are used to request the court to act upon an issue in a case
  • 3. Timing of Motions • Pre-trial Includes Discovery Motions • Trial • Post-trial
  • 4. Components of Motion • Notice of Motion • Supporting Affidavit • Supporting Exhibits • Certification of Service • Proposed Order
  • 8. Certification of Service • Document to certify that the motion package has been served on the adversary
  • 9. Proposed Order • A motion seeks the court to act • The court generally acts by issuing an order • The proposed order is drafted so the judge can rule on the motion and sign the order that was submitted with it
  • 10. Benefits of Proposed Order • Speed; that is, upon a decision, the order can be signed immediately • Clarity; that is, this order describes what is sought by the moving party
  • 11. Motions to Dismiss • Rather than file an Answer some litigants may rely upon a motion to dismiss the litigation • Motion to Dismiss suggests plaintiff’s complaint is fundamentally flawed
  • 12. Responses to Motion to Dismiss • Reply and contest basis for motion to dismiss • Some flaws in the Complaint may be satisfied by filing an Amended Complaint with the “missing” information now included
  • 13. Motion for Judgment on the Pleadings • At the close of pleadings • May be file by either plaintiff or defendant • Seeks dismissal, while assuming all facts as plead are true • Asserts there is a fundamental legal flaw in opponent’s cause of action
  • 14. Motion for Entry of Default Judgment • Failure to answer within time, may result in the entry of default • In federal court, entry of default prevents other side from filing answer • If damages not readily assessed, plaintiff must move before the court to determine damage amount
  • 15. Motion to Vacate Default • This motion seeks to reopen a default judgment • Usually requires a good reason for the failure to answer • Many jurisdictions will also require that the defaulted party has a valid defense to the complaint
  • 16. Motion for Request for Extension of Time to Answer • When agreement from plaintiff is not able to be obtained • This motion seeks more time from the court to answer the complaint
  • 17. Discovery Motions I • During the discovery process, many motions may be used to either compel compliance or protect a party from harassment or unduly burdensome requests
  • 18. Discovery Motions II • When a party has failed to answer or satisfactorily answer a discover request, a Motion to Compel is often used • Many jurisdictions require counsel to confer in effort to avoid filing discovery motions
  • 19. Discovery Motions III • A party receiving a discovery request will sometimes seek court’s protection from some requests • Usually requires a showing that the request is unduly burdensome
  • 20. Protective Order • Party seeking protection from a discovery request will seek a protective order • Protective order will determine limits of the need to respond to discovery request
  • 21. Pre-Trial Motion • Motion for Summary Judgment
  • 22. Motion for Summary Judgment I • Seeks dismissal as there is no serious factual dispute • No need for a finding of fact, just decision on the law
  • 23. Motion for Summary Judgment II • Differs from earlier motion to dismiss • This motion relies on pleadings, discovery responses, affidavits • Judgment can be granted on a partial basis; that is, may not resolve all counts, but only some
  • 24. Motion for Summary Judgment III • Summary judgment motion may be defeated if, in response to the motion, the adversary is able to show there is a material factual dispute • This material factual dispute has to be resolved at a trial
  • 25. Motions During Trial • Motions during trial are not always anticipated and unlike most other motions will be oral
  • 26. Motion to Mold Verdict • Occasionally a decision will require the intervention of the court to shape the decision to the facts of the case • In a case of comparative negligence, the court may have to mold the verdict to reflect the dollar amount of a verdict based on the liability determined
  • 27. Judgment N.O.V. • Also known as a Motion for a Judgment As a Matter of Law • This is a rare motion that asks the judge to set aside a verdict of a jury
  • 28. Motion for a New Trial • Seeks new trial based on errors during trial • Usually made to the judge that heard the case • Usually made shortly after decision • Usually a requirement to file an appeal