Chapter 9 nine motion practicce civ lit 2nd

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Chapter 9 nine motion practicce civ lit 2nd

  1. 1. Civil Litigation Chapter 9 Motion Practice
  2. 2. Purpose of Motions• Motions are used to request the court to act upon an issue in a case
  3. 3. Timing of Motions• Pre-trial Includes Discovery Motions• Trial• Post-trial
  4. 4. Components of Motion• Notice of Motion• Supporting Affidavit• Supporting Exhibits• Certification of Service• Proposed Order
  5. 5. Notice of Motion
  6. 6. Supporting Affidavit
  7. 7. Supporting Exhibit
  8. 8. Certification of Service• Document to certify that the motion package has been served on the adversary
  9. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 21. Pre-Trial Motion• Motion for Summary Judgment
  22. 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. 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. 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. 25. Motions During Trial• Motions during trial are not always anticipated and unlike most other motions will be oral
  26. 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. 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. 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

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