A legal motion is a procedural device Procedural law comprises the rule by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice (in other common law countries) to all cases that come before a court. The substantive law, which in law Law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to bring a limited, contested issue before a court A court is a body, often a governmental institution, with the authority to adjudicate legal disputes and dispense civil, criminal, or administrative justice in accordance with rules of law. In common law and civil law states, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to for decision. A motion may be thought of as a request to the judge A judge, or arbiter of justice, is a lead who presides over a court of law, 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 like an umpire in a game and conducts the trial impartially and in an open court. The (or judges) to make a decision about the 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. There is a defendant and an accuser.[1] Motions may be made at any point in administrative 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. As a body of law, administrative law deals with the decision-making, criminal 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 prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that s/he is innocent, and any doubt is resolved in favor of the or civil proceedings Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits . These rules govern how a lawsuit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the, although that right is regulated Regulation is "controlling human or societal behaviour by rules or restrictions." Regulation can take many forms: legal restrictions promulgated by a government authority, self-regulation by an industry such as through a trade association, social regulation , co-regulation and market regulation. One can consider regulation as actions of 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.
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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.
Types of motions
U.S. federal courts
Motion to dismiss
A "motion to dismiss" asks the court to decide that a claim A claim is a legal action to obtain money, property, or the enforcement of a right against another party. The legal document which carries a claim is called a Statement of Claim. It can be any communication notifying the addressee of alleged faulty execution which resulted in damages, often expressed in amount of money the party should pay/, even if true as stated, is not one for which the law offers a legal 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 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. (Note that American lawyers and judges often pronounce the word slightly differently than is common in standard American 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 A statute of limitations is a statute in a common law legal system that sets forth the maximum time after an event, that legal proceedings based on that event may be initiated. In civil law systems, similar provisions are usually part of the civil code or criminal code and are often known collectively as "periods of prescription" or & has expired is also subject to dismissal. If granted, the claim is dismissed without any evidence The law of evidence governs the use of testimony and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law) being presented by the other side. A motion to dismiss has taken the place of the common law demurrer A 'demurrer' is a pleading in a lawsuit that objects to an earlier pleading filed by an opposing party. The word 'demur' means to object; a 'demurrer' is the document that makes the objection. Typically, the defendant will demur to the complaint, but it is also possible for plaintiff to demur to an answer. The demurrer challenges the "legal in most modern civil practice.
Under Rule 12 of the 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. The admissibility and use of evidence in criminal proceedings is, a party may raise by motion any defense In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defence in an attempt to avoid criminal or civil liability. Besides contesting the accuracy of any allegation made against him or her in a criminal or civil proceeding, a defendant may also make allegations against the prosecutor or plaintiff or raise a, objection 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. An objection is typically raised after the opposing party asks a question of the witness, but before the, 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 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. The prosecution is the legal party responsible for presenting the case against an individual suspected of breaking the law in a criminal trial, defects in the indictment In the common law legal system, an indictment is a formal accusation that a person has committed a criminal offense. In those jurisdictions which retain the concept of a felony, the serious criminal offence would be a felony; those jurisdictions which have abolished the concept of a felony often substitute the concept of an indictable offence, i.e 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 In the common law tradition, an acquittal formally certifies the innocence of the accused, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi. Under the rules of double jeopardy and autrefois acquit, an acquittal operates to bar the retrial of the accused for the same offense, even if new, guilty 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. The determination that one has committed that violation is made by, 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. 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 [1]), a motion to dismiss is a request to terminate further proceedings on one or more criminal charges In the common law legal system, an indictment is a formal accusation that a person has committed a criminal offense. In those jurisdictions which retain the concept of a felony, the serious criminal offence would be a felony; those jurisdictions which have abolished the concept of a felony often substitute the concept of an indictable offence, i.e 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 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 trial.[citation needed] Violations of the, statute of limitation, double jeopardy Double jeopardy is a procedural defense that forbids a defendant from being tried twice for the same crime on the same set of facts. At common law a defendant may plead autrefois acquit or autrefois convict , meaning the defendant has been acquitted or convicted of the same offense. If this issue is raised, evidence will be placed before the court, meaning a person has been previously tried by court-martial A court-martial is a military court. These military courts can determine punishments for members of the military subject to military law who are found guilty or may dismiss the charges based on the evidence and the case presented. Most militaries maintain a court-martial system to try cases in which a breakdown of military discipline may have or federal civilian court for the same offense In law, an offence is a violation of the penal law. An offence can range from a simple misdemeanour to a felony (e.g. capital murder). In common law usage, 'offence' differs from 'crime' in that there is typically no victim, but the action remains prohibited by statute, pardon A pardon is the forgiveness of a crime and the penalty associated with it. It is granted by a head of state, such as a monarch or president, or by a competent church authority. Commutation is an associated term, meaning the lessening of the penalty of the crime without forgiving the crime itself. A reprieve is the temporary postponement of or grant of immunity Immunity from prosecution occurs when a prosecutor grants immunity, usually to a witness in exchange for testimony or production of other evidence. It is immunity because the prosecutor essentially agrees to never prosecute the crime that the witness might have committed in exchange for said evidence). 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 is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand, assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the United States, assault may refer only to the threat of violence caused by an immediate show of force and disorderly conduct Almost every state in the United States has a disorderly conduct law that 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 statutes are often used as "catch-all" crimes. Police may use a disorderly 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 of are contained in one are all in another they are allied offenses of similar import.
Discovery motions relate to the necessary exchange of information Information as a concept has many meanings, from everyday usage to technical settings. The concept of information is closely related to notions of constraint, communication, control, data, form, instruction, knowledge, meaning, mental stimulus, pattern, perception, and representation. In its most restricted technical meaning, information is an between the parties. In the common law system Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different, these motions capture an irreducible tension in the legal system between the right of discovery In American law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties and can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production of documents, and depositions 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 The Federal Rules of Civil Procedure govern civil procedure (i.e. for civil lawsuits) in United States district (federal) courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon , 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 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 civilian judicial systems. Legal issues unique to basis for discovery.
Motion for summary judgment
A "motion for summary 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 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. 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 performed malpractice In law, malpractice is a type of negligence in which the misfeasance, malfeasance or nonfeasance of a 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 damages. It is committed by a professional or her/his subordinates or by prescribing a drug would be entitled to recover summary judgment if the plaintiff failed to obtain expert An expert witness or professional witness is an expert, 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 rely upon the witness's specialized (scientific, technical or other) opinion testimony In the law, testimony is a form of evidence that is obtained from a witness who makes a solemn statement or declaration of fact. Testimony may be oral or written, and it is usually made by oath or affirmation under penalty of perjury. Unless a witness is testifying as an expert witness, testimony in the form of opinions or inferences is generally indicating that the drug was improperly prescribed. Motions to dismiss and motions for summary judgment are types of dispositive motions 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. As a lawsuit may comprise numerous claims made by and against.
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 ( /ˈɪŋɡlənd/ ) 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 and the North Sea to the east, with the English Channel to the south separating it from continental Europe. Most of 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 Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any property that can be moved from one location to and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts Tort law is a body of law that addresses and provides remedies for civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or liable, for those injuries. Generally speaking, tort law defines what constitutes a legal and breach of promise 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. If the man were to subsequently change his mind, he would be said to be in "breach" of this promise and subject to litigation for damages of marriage. English Rules Under the Judicature Act The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts.The first two acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 (38 & 9 Vict c 77), before another series of amending acts (12 in all by 1899) (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 (pronounced /njuː ˈjɔrk/; locally [nuː ˈjɔːk] or [nuː ˈjɔrk]) is a state in the Mid-Atlantic and Northeastern regions of the United States and is the nation's third most populous. The state is bordered by New Jersey and Pennsylvania to the south, and Connecticut, Massachusetts and Vermont to the east. The state has a maritime 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 is discrimination in hiring, promotion, job assignment, termination, and compensation. It includes various types of harassment claims and the Merit Systems Protection Board which adjudicates federal employment matters).[2]
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. Alternately, 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 limine" 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
Motion for a directed verdict
A "motion for a directed verdict" 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.
Motion for judgment n.o.v.
A "motion for judgment n.o.v." (non obstante veredicto, or notwithstanding the verdict) 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. Typically, 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.
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 judgment" asks 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 prosequi" ("not prosecuting") is a motion by a prosecutor or other plaintiff to drop legal charges, usually in exchange for a diversion program or out-of-court settlement.
Motion 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 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.
Illegal motions
"Operation Illegal Motion" is the name of a FBI investigation that has indicted several people for violating the Racketeer Influenced and Corrupt Organizations Act (RICO) and with conspiracy for allegedly accepting or extorting bribes from individuals with pending criminal charges in the Baton Rouge City Court and the 19th Judicial District Court and then sharing the proceeds of the bribe or extortion with a prosecutor or court official who would arrange for the matters to be dismissed or otherwise “fixed.” [3] [4]
References
- ^ "an application made to a court or judge to obtain an order, ruling, or direction" from: http://research.lawyers.com/glossary/motion.html "Based on Merriam-Webster's Dictionary of Law ©2001"
- ^ Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.
- ^ http://neworleans.fbi.gov/dojpressrel/pressrel09/no110209.htm
- ^ http://www.batonrougetoday.com/2009/11/19/baton-rouge-mayor-kip-holdens-sister-evelyn-holden-charged-in-operation-illegal-motion/
See also
Categories: Legal motions
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Goldfine also argued a motion to dismiss charges and for prosecutors to enforce a settlement agreement. The defense attorney showed federal Drug Enforcement ...
