Robbins: Going through the motions |

Robbins: Going through the motions

I like to move it, move it

I like to move it, move it

I like to move it, move it

Ya like to move it

— Erick Morillo

It’s like responsive reading. Well, sorta anyway.

Think of it like a church where the “call and answer” consists of alternate reading of a text between the leader of a group and the rest of the group, during worship or Bible study, or during the recitation of the Psalms. Or hymnals, perhaps, with their particular lilting, communal cadence.

But now think of this particular “church” being the Church of Law. Okay, that’s a bit farfetched but … bear with me.

The way you get things done in court is via motions. While motions can be of almost limitless types and “flavors,” what they have in common is that each is a formal request made to a judge for an order or a judgment.

Motions are as common in a courtroom as is cotton candy on the fairway of a carnival. They may be teed up for nearly infinite purposes. There can be motions to continue or postpone a hearing, to get modification of an order, for temporary child support, for a judgment, for dismissal of the opposing party’s case, for a rehearing, for sanctions, or nearly as many other things as the legal imagination can invent.

Most motions require a written petition, a written brief of legal reasons for granting the motion (often called “points and authorities”), written notice to the attorney for the opposing party, and a hearing before a judge. However, during a trial or a hearing, an oral motion may be permitted.

There are different names for different kinds of motions — for example, motions “in limine” — but no need to get into that here.

So what about this responsive reading stuff?

A motion in motion

It goes like this.

First one side or the other gets a burr under its saddle about one thing or another and crafts and files its particular motion. Let’s say, for purposes of a convenient example, that the motion is one to modify child support. That party, usually through his or her attorney, lays out the “becauses” and the “whys” and “wherefores” and details the precise reasons that child support should be modified.

What circumstances have changed? What does the law have to say about it? What supports his or her position and the “relief” s/he is asking of the court? Once drafted, that particular bit of legal authorship is submitted to the court, usually with a proposed order, and is simultaneously transmitted to the other party.

What happens next is that the other side, reads, cogitates, drafts, and files a “response.” The response (usually due within a couple of weeks), says, “Oh my no! Here is why what is being claimed is wrong, or why the law speaks in our favor, or why the relief requested should not be meted out.”

Think as the motion as the “call” and the response as, well … the response.

But the fat lady has not yet sung.

Like a couple of bickering spouses (which sometimes it is), someone has to get the last word. And at law, who gets the last word (other than the court, but we’ll get to that), is most times (absent what is know as a sur-reply) the one who started this particular squabble in the first place.

After the response comes the “reply” (usually due within a week) which, besides some finger wagging, points out the errors of the respondent’s ways. It is a last shot to set the record straight and/or to answer what the respondent, in his or her response, pointed out what he or she believed to be mistaken or inapplicable about the motion.

Motion. Response. Reply. Responsive reading … sorta.

Where it ends

Where the rubber meets the road is, of course, with the judge. In the immortal words of George W. Bush, the judge is “the decider.” The arguments have been laid out and now it is the judge who reads and cogitates. She or he may schedule a hearing where the parties can engage in oral fisticuffs arguing and supporting their particular positions. Sometimes, though, the reading and cogitating is enough and the judge may reach his or her decision without the fireworks of scheduling a hearing.

While it may not sound so, all of this is very sophisticated and formalized and most times, it is polite and cordial. This is simply how the wheels go ‘round in litigation. For the lawyers, hey, it’s nothing personal; we have a disagreement and this is how ripples in the law get smoothed out.

I like to move it, move it. With the assist of formal process and the Church of Law’s rules of responsive reading and resolution.

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