Motions: Explaining Legal Concepts in Plain English

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A motion is a request for the court (judge) to do something in a lawsuit. Most motions occur before and during a trial. They are mostly one party asking the judge to tell the other party to do something. Some motions ask the court to do something like a motion to dismiss or a motion for summary judgment. They still are asking the court to “do something” TO the other side’s case. Most motions must be in writing, but the ones made during a trial don’t have to be. Did you know objections made during a trial are motions? The lawyers say “objection!” followed by their reasoning; “hearsay” or “relevance” or something. The relief desired is implied--the attorney wants the judge to agree with his objection. The lawyer is counting on the judge knowing the rule and granting the objection. Sometimes the judge isn’t convinced and asks both attorneys to approach the bench to hear the reasoning from both sides. To help the judge decide whether she is going to agree with the motion or not , she may hold a hearing. During the hearing, both attorneys will have the chance to state the reasons why they think they are right. Each attorney presents their argument and uses the decisions from past cases (precedent) to support their argument. They compare the facts of the precedent case to the one going on. If she doesn’t hold a hearing, she makes her decision based on all the papers filed so far in the case like the complaint and the answer. A motion should be accompanied by a memoranda or a written argument that compares the relevant facts to existing laws and precedent. The judge then makes her decision based on who she thinks made the better argument. Now “better argument” is not necessarily the attorney that was more eloquent or the one who has the most supporting precedent, her decision rests partly on what argument makes more sense against the backdrop of the whole of law. Judges ask themselves, “what kind of precedent will I be setting if I agree to this?” and “Is this the result intended from this prior decision?” The result intended from an attorney’s motion is an order from the judge. You are probably familiar with the term court order. The court order is the judge’s final say on the matter of a motion. When the lawyer files the motion he usually gives the clerk an unsigned order for the judge to sign. In a way, a motion is like kids running to their mom to settle the disagreement! “Mom! Tell her to _______!”

Sarah S.

Sarah S.

Orlando, Florida, United States

Hello. Thank you for your interest in my profile. I have been working as a freelance writer since 2009. I graduated from law school and passed the Florida Bar Exam, but I do not work as a lawyer because of medical difficulties. I have an excellent grasp of legal concepts and ...

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