Chapter 6 - Law and Motions - Concepts Flashcards
Motions are used for (1) and (2). A motion is an (3) to the court for an (4). A successful motion follows (5) and (6).Also jeeo
- routine “housekeeping” (rescheduling, etc.) 2. dispositive motions (dismiss, etc.) 3. application 4. order 5. format/service rules 6. substantive requirements
3 requirements of a motion, per rule 7FRCP
- In writing 2. “State with particularity the grounds therefor” 3. state the relief or order requests
Format requirements for motions are identical to those in (1)–including a (2), (3) and (4).
- pleadings 2. caption page 3. lawyer heading 4. lawyer’s signature
Rule 6 FRCP stipulates service of a motion (1) before the hearing date, along with the (2) and any (3). Mail service adds (4). Local rules usually require (5)
- five days 2. notice of motion 3. supporting affidavits 4. three days 5. more notice
Following service, the (1) of the motion and notice should be filed with the (2) along with a (3). ALso have a copy of each (4) and (5) for your own files.
- originals 2. clerk of court 3. proof of service 4. stamped 5. dated
Proof of service is a (1) issued by a (2) or (3) (depending on local rules) stating service has been made in the proper way.
- certificate 2. lawyer 3. non-lawyer (eg, notary)
Make sure to schedule the hearing on a day (1), clear it with the (2), and double-check (3) that it is on the docket.
- the judge hears hearings 2. lawyer 3. the day before
A memorandum of law can be attached to the motion and it sets forth the (1) and (2) to support the motion. It can include (3). Sometimes (4) is preferred where appropriate. Drafting a motion requires a (5) approach.
- facts 2. legal authorities 3. exhibits 4. brevity (eg., motion to reset a hearing v. motion for summary judgment) 5. flexible (tailored, not mechanical)
Two choices the respondent has to a motion
- oppose 2. not oppose
If the respondent does not oppose the motion, the (1) should be notified and a (2) should be filed. Alternatively, a (3) may be used, with both parties agreeing to dispose of the motion. If your party opposes the motion, (4) before the hearing which includes (5).
- opposing attorney 2. statement saying the def. did not oppose 3. consent order 4. file the response 5. case law research
For hearings, the judge usually dispenses with (1) first. For other cases, sometimes the judge will make a (2) and the party rules against will (3). If the judge does not make a tentative decision or a (4) and the motion is more significant, the judge may listen to arguments and take the case (5)–researching the issues further.
- uncontested matters 2. tentative decision 3. speaks first to persuade the judge to change his ruling 4. decision from the bench 5. under submission
How important oral or written arguments are in hearings is up to the (1).
- judge
When the motion is decided, the court enters an (1)–usually a (2) for routine motions. For more important rulings, the judge may prepare a (3). Some motions may be referred to a (4) who is empowered to hear routine civil pretrial matters and may also supervise the (5)
- order 2. minute order 3. written opinion 4. magistrate 5. discovery process
If a motion to extend is made (1), the court may grant it (2) or after for (3). Courts are generally (4) with the former, but not with the latter. Some (5) matters cannot be enlarged.
- before expiration of the applicable time period 2. for good cause 3. excusable neglect 4. permissive 5. post-trial
(1) can be required when a party dies, becomes incompetent or loses legal interest, such as a (2) where substitution is automatic.
- substitution 2. public official
