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Encyclopedia > Motion (legal)

A legal motion is a procedural device in law to bring a limited, contested matter before a court for decision. A motion may be thought of as a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion is called the movant. Image File history File links Wikitext. ... Legal procedure is the body of law and rules used in the administration of justice in the court system, including such areas as civil procedure, criminal procedure, appellate procedure, administrative procedure, labour procedure, and probate. ... For other uses, see Law (disambiguation). ... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ... This article does not cite any references or sources. ... Look up case in Wiktionary, the free dictionary. ...

Contents

Types of Motions

US Federal courts

Motion to dismiss

A "motion to dismiss" asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedy. For example, a claim that the defendant failed to greet another on the street would be dismissed for failure to state a valid claim.[citation needed] A claim that has been presented after the statute of limitations has expired is also subject to dismissal. If granted, the claim is dismissed without any evidence being presented by the other side. A motion to dismiss has taken the place of the common law demurrer in most modern civil practice. Ther word claim has several uses: a right; an insurance claim; a patent claim; a logical assertion of truth. ... A legal remedy is the means by 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. ... 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. ... A statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated. ... The law of evidence governs the use of testimony (e. ... In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. ...


Under Rule 12 of the Federal Rules of Criminal Procedure, a party may raise by motion any defense, objection, 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, defects in the indictment 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, guilty, and nolo contendere. 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." The US General Federal Court method, step by step, on processing a criminal whom is arrested and charged with an indicment (Felony). ... In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law. ... Nolo contendere, in criminal trials, in some common law jurisdictions, is a plea where the defendant neither admits nor disputes a charge, serving as an alternative to a pleading of guilty or not guilty. ...


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 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, statute of limitation, double jeopardy meaning a person has been previously tried by court-martial or federal civilian court for the same offense, pardon or grant of immunity). 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 is the situation where two or more specifications allege the same offense, or a situation where one defined offense necessarily includes another. A specification may also be multiplicious if two or more describe substantially the same misconduct in different ways. For example, assault and disorderly conduct may be multiplicious if facts and evidence presented at trial prove that the disorderly conduct consists solely of the assault.


Discovery motions relate to the necessary exchange of information between the parties. In the Anglo-American system of law (common law), these motions capture an irreducible tension in the legal system between the right or of discovery 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 , are often cited in combination with a specific local rule to form a basis for a civil discovery motion. The Federal Rules of Civil Procedure (FRCP) govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. ...


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 basis for discovery.


Motion for summary judgment

A "motion for summary judgment" 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. 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 by prescribing a drug would be entitled to recover summary judgment if the plaintiff failed to obtain expert testimony indicating that the drug was improperly prescribed. Motions to dismiss and motions for summary judgment are types of dispositive motions. Summary judgment is a legal term which means that a court has made a determination (a judgment) without a full trial. ... In 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 or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for... For other uses, see Malpractice (disambiguation). ... An expert witness is a witness, who by virtue of education, profession, publication or experience, is believed to have special knowledge of his or her subject beyond that of the average person, sufficient that others may officially (and legally) rely upon his opinion. ... In law and in religion, testimony is a solemn attestation as to the truth of a matter. ... In law, a dispositive motion is a motion seeking a court order entirely disposing of one or more claims in favor of the moving party without need for further court proceedings. ...


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 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 and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act (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 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 claims and the Merit Systems Protection Board which adjudicates federal employment matters). For the history and nature of the summary judgment procedure and citations of state statutes, see Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.


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. Motion in limine (Latin: at the outset) is a motion, raised before or during trial, to exclude the presentation of certain evidence to the jury. ... 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. In U.S. law, a directed verdict is an order from the judge presiding over a jury trial that one side or the other wins. ... A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... The prosecutor is the chief legal representative of the prosecution in countries adopting the common law adversarial system or the civil law inquisitorial system. ...


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. A judgment or judgement (see spelling note below), in a legal context, is synonymous with the formal decision made by a court following a lawsuit. ... Judgment notwithstanding the verdict, or J.N.O.V. for short (Latin Judgment Non Obstante Veredicto) is the practice in American courts whereby the presiding judge in a civil case may overrule the decision of a jury and reverse or amend their verdict. ... In law, a verdict indicates the judgment of a case before a court of law. ... For jury meaning makeshift, see jury rig. ...


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, 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). This article or section does not cite its references or sources. ...


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. In law, a motion to set aside judgment is an application to overturn or set aside a courts judgment, verdict or other final ruling in a case. ...


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. This article or section does not adequately cite its references or sources. ... Criminal law (also known as penal law) is the body of law that regulates governmental sanctions (such as imprisonment and/or fines) as retaliation for crimes against the social order. ... This article does not cite any references or sources. ...


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. A motion to compel asks to court to order either the opposing party or a third party to take some action. ...


See also


  Results from FactBites:
 
Motion (legal) - Wikipedia, the free encyclopedia (974 words)
A legal motion is a procedural device in law to bring a limited but contested matter before a court for decision.
Motions may be made at any point in the proceedings, although that right is regulated by court rules which vary from place to place.
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.
  More results at FactBites »

 
 

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