Common Motions Filed During Litigation
Many terms and concepts related to litigation might seem foreign to people who do not have previous experiences with lawsuits. Indeed, one of the most common parts about litigation, which clients may not have experience with, is motions. A motion is essentially when a party asks a court to do something. It is similar to an application, and most motions are in writing, although some can be made orally in open court. The party filing the motion typically gets to submit their brief containing arguments, and any papers they want to use to support their motion. Then, the party opposing a motion submits their papers, and the moving party is usually allowed to reply to the opposing party as well. Courts typically allow parties to present oral arguments, but on some matters, courts will decide motions on the papers alone. Although there are many different types of motions, some common motions filed during litigation are discussed below.
Motion to Compel
As has been mentioned in a few prior articles, most of the process of litigating a case involves exchanging documents and asking questions of witnesses under oath. However, sometimes parties do not respond to demands for documents, or refuse to produce witnesses to be examined. Parties may not want to produce materials, since they could be privileged or subject to some kind of protection. Other times, parties may think that materials are not relevant to a lawsuit, and as a result, should not be produced. One of the common motions filed during litigation is a motion to compel, and this motion seeks a court order requiring that another party produce materials or witnesses for questioning. In addition, if a party has been extremely deficient in complying with the requirements to produce documents or witnesses, the other party may also seek to sanction them for refusing to provide materials. These motions are very routine, and it is not uncommon to see several of these motions filed over the course of litigation.
Motion for a Protective Order
A motion for a protective order is another one of the common motions filed during litigation, and this can best be viewed as the opposite of a motion to compel. In a motion for a protective order, a party asks the court to rule that they do not need to produce certain materials, answer specific questions, or perform other discovery obligations. Motions for a protective order are usually filed in cases concerning privilege (like the attorney-client privilege) or when something is protected from discovery, since the party needs to rule that the materials are indeed protected. In order to be effective, motions for a protective order usually need to be filed under tight timeframes, but a skilled litigator should understand when such a motion should be filed.
Spoliation of Evidence
Another one of the common motions filed during litigation is a spoliation motion. Spoliation of evidence occurs when a party destroys evidence that is relevant to a case after they have been put on notice that litigation has been filed or is forthcoming. Sometimes, parties can put others on notice that a lawsuit is anticipated by sending them a letter, and other times, the possibility of litigation can be inferred from the circumstances. If a party can show that relevant evidence has been spoliated, there are a number of sanctions that can be placed against the party guilty of spoliation. The severity of a sanction will largely depend on the importance of the evidence that was spoliated. Spoliation sanctions can include an adverse inference about the reason why evidence was spoliated, and in extreme cases, can even include losing a case by default. A skilled lawyer will know when to put a party on notice about forthcoming litigation to increase the likelihood of asserting spoliation if evidence is destroyed.
Dispositive Motions
Other common motions filed during litigation are dispositive motions, i.e. motions that ask the court to dispose of the case. As mentioned in a few prior articles, the two dispositive motions typically filed during litigation are motions to dismiss and summary judgment motions. A motion to dismiss is typically filed right at the beginning of a lawsuit when a party has the choice of filing an answer to the complaint or asking the court to dismiss the case. In a motion to dismiss, parties are allowed to ask for the dismissal of a case based on jurisdictional issues, statute of limitations, failing to state a claim, and other issues. Normally, the court only looks to the complaint itself when deciding this type of motion, and it is difficult for this motion to be granted.
Parties are also able to file summary judgment motions as well. This type of motion is typically filed after the parties have exchanged materials and asked each other questions under oath. Once this has occurred, parties can point to the evidence presented in the matter and argue that the other party is unable to prove their case. It is oftentimes easier to win a summary judgment motion than a motion to dismiss, but it depends on the circumstances of the case.
There are other common motions filed during litigation, including motions to amend pleadings, motions to extend discovery, and others. A skilled litigator will be familiar with the common motions filed during litigation, and will be able to research and write motions that have the greatest likelihood of success. The Rothman Law Firm has substantial litigation experience, and if you are looking for a skilled New Jersey and New York litigator, please feel free to contact us to request a free legal consultation.