Making a Motion
When a party before the court asks the judge to do something, they are technically “making a motion.” Motions can be for many things: asking the judge to decide the case in a party’s favor, asking the judge to allow an attorney to appear in the court at all, or asking the judge to order someone else to do something.
Although attorneys sometimes makes motions orally in court, there is usually a formal process that attorneys follow to submit written motions to the court.
Why should you read this post about making motions?
You’ve just received a bunch of legal documents and you don’t know why there are so many and what they all mean.
The local video store closed down twenty years ago and you need something to do.
You’re writing a poem about the law and reading this post couldn’t hurt.
The Notice of Motion
Most motions are made by filing (often electronically) multiple documents in support of the motion. Often the first document filed in support of the motion is called a “notice of motion.” The notice of motion is a simple document, often just one or two pages, that states who is making the motion (this person is called the “movant”), what the movant wants, and what other documents support the motion.
The notice of motion will usually also state a day in the future when the motion will be submitted. This date is often called the “return date.” That does not mean that a judge will necessarily consider the motion on that date, but it does mean that that is the day the movant expects all of the papers in support of the motion to be filed. The deadline for the opposing party to submit its opposition is usually calculated from this date.
In New York, there are rules about how far in advance the return date must be from the date the initial papers are filed. Motions there must be filed eight days before the return date, and if they are filed sixteen days before, then the movant is allowed to file a reply to the opposition the day before the return date.
Orders to Show Cause
Using the “notice of motion” often means that the court will not consider the motion for at least a week (and usually much longer). But sometimes a movant wants a judge’s attention sooner, such as when they seek a temporary restraining order.
In those situations, a movant can initiate a motion by seeking an “order to show cause” instead of a notice of motion. An order to show cause is an order that the movant asks the judge to sign. The order compels the opposing party to respond right away and explain why the judge should not grant the relief that the movant seeks. It usually also compels the movant to ensure that anyone affected by the order receives the order right away. This process has much tighter deadlines, and parties generally often use it only when they cannot wait or when a statute requires it.
So for example, if I wanted an injunction, preventing the defendant from selling her property, I could send an order to show cause to the judge. If the judge signs it, I could be ordered to give the order to the defendant and the defendant could be ordered to submit an explanation in just a day or two for why she should not be restrained from selling her property. Then, a day or two later, the judge will decide whether to order the defendant not to sell her property.
Memoranda of Law and Supporting Statements
In addition to a notice of motion or an order to show cause, a movant also needs to submit reasons why the judge should grant the motion. These come in the form of two kinds of documents.
First, a movant will often submit a legal report, called a brief or memorandum of law, explaining why the motion should be granted. The brief will usually recount the facts of the case and cite relevant law that explains why the judge should grant the motion. These documents can range in length from a few pages to twenty-five or more. Briefs often refer to evidence and, when they do, they cite to supporting affidavits or declarations.
These affidavits and declarations are the other kind of document submitted to support a motion. They are sworn statements, which means they are signed by individuals who promise they are telling the truth and accept they could get in trouble if they are lying. They usually contained numbered paragraphs, often written by a lawyer, but signed by a person with firsthand knowledge about the truth of the statements. Sometimes, a movant will not file a brief and rely on an affidavit to explain why the motion should be granted. And when a movant relies on documentary exhibits, a lawyer or paralegal may submit their own statement, attaching the exhibits and swearing that they are authentic.