Motions can be filed in writing or made orally. The rules and terminology can differ from one courtroom to the next. The important thing to remember: An effectively argued motion can make a big difference in a case.
The process could involve an oral argument and/or written documents. If the court grants a motion, the other side can appeal.
In criminal trials, you have probably heard of a motion for a change of venue, which often happens when there is so much negative publicity in one geographic area that the defendant’s attorney feels it would be better to move the case to a different courthouse. You may also have heard of a “motion to suppress” statements or evidence if Miranda rights were violated or a search was done without a warrant.
Here are four other types of motions that can be filed.
1. Motion to dismiss. As the name implies, a motion to dismiss is a request for a judge to throw out a claim, end a lawsuit, or clarify legal issues. There are many reasons why a motion to dismiss may be filed, including but not limited to:
- There’s no real case. Lawyers call this “failure to state a claim upon which relief may be granted.”
- The claim was filed too late — past the statute of limitations.
- It violates the statute of frauds.
- A lack of personal jurisdiction, which means the court doesn’t have the power to make decisions about one of the parties.
- A lack of subject matter jurisdiction, which means the court cannot rule on the case. For example, certain matters must be heard in federal or state courts and a case can be dismissed if it is filed in the wrong court.
- Other legal deficiencies in the case.
A motion to dismiss can be made “without prejudice” or “with prejudice.” If a judge grants a dismissal with prejudice, it means the same claim cannot be re-filed in the future against the defendant. A dismissal without prejudice, on the other hand, leaves the door open for future claims.
2. Motion for summary judgment. Usually made after discovery and before a trial begins, this motion asks a judge to resolve a lawsuit. The “moving party” argues that because there is no dispute in the evidence, and the evidence supports its position, the court can rule in its favor. In essence, a motion for summary judgment says: “We know the key facts. There is no genuine fact issue and therefore, no need for a trial.” Note: Even if one party moves for summary judgment, the court can rule in the other party’s favor.
A motion for summary judgment is generally accompanied by concise supporting documentation and a detailed legal brief to help the court make a decision.
There can also be a motion for partial summary judgment, in which a request is made to resolve part of a claim.
3. Motion “in limine.” This motion asks the court before a trial begins to decide whether certain evidence is admissible. A motion in limine is generally made to exclude evidence because it could prejudice the jury or the court against the moving party.
4. Motion to compel. Often used during the discovery phase, a motion to compel involves asking the court to order one party to take a specific action. For example, if one party refuses to produce documents requested by the opposing party during discovery, a motion to compel may be filed. This may also happen if one party produces documents the other side believes are insufficient.
These are just some of the available legal motions. Depending on the case, an attorney might strategically make all kinds of motions. It’s all part of navigating the court system.