Robbins: Motions, responses, replies, sur-replies, hearings and orders
The way you get stuff done in litigation is to move for it.
Leading up to trial, there are often things that come up and one party or the other must involve the court. You can’t just dial up and bend the judge’s ear. No, no. The way you get the court’s attention is to file a Motion which may be defined simply as a request to the court for a desired ruling or order. “
Your Honor, we would like the court to do this.” But, of course, it has to be all dressed up and fancy and the facts and law behind what it is you want must be clearly stated.
According to the Rule of Civil Procedure, before you pop off and file a motion, you need to have a chat with opposing counsel. If agreement can be reached regarding the subject of your proposed motion, then a stipulation (referred to by lawyers as a “stip”) may be entered into — whereby the parties state that they agree to this-and-that and thereby save everyone a bunch of heartburn.
A stip is succulently stated as an agreement reached between the parties to a lawsuit. Even if a stip cannot be reached, sometimes the parties can and will agree that the motion will not be opposed thereby lubricating the way towards the court considering and presumably entering an Order.
If, however, the motion is opposed, the party filing it (known as the “movant” or “moving party”) must so inform the court.
By rules generally applied in Colorado District Court, a motion should be a dozen pages or less. What will be laid out are if the motion is opposed, the procedural background, the salient facts, the law supporting the relief requested, and a “prayer” asking the court to take a specific action.
Taking a couple of steps backwards, when I say, “the law supporting the relief requested,” what I am referring to is what is known as the “authority,” which may be thought of as the legal basis undergirding what you are asking the court to do. “Relief” then is simply what it is you want from the court, what you want the court to do in response to the motion and the “prayer” is just a high-falutin’ way of saying, “Please do this specific thing.”
What a motion usually engenders is a response which, most times, is due within 21 days following the filing of the motion. A Response gives the other side an opportunity to state why they object. It will address the motion and provide the party’s position on the points raised in the motion. This can include a rebuttal to issues of fact or law raised in the motion. Clearly, the response will ask that the motion be denied.
Ah, but this is not the end of the yellow brick road of motions. Most times, the movant gets the last word in the form of a reply. “Oh yeah? Sez you!” she or he may retort in answer to the response. A reply will address the points raised in the response and provide the party’s position on the points raised therein.
This can include a rebuttal to issues of fact or law raised in the response. A reply should only address points raised directly in the response. It is not a place to beat the proverbial dead horse or to reargue the points made in the original motion. Neither is it the place to raise new issues; that ship sailed with the motion itself. A reply is usually required within a week of the response.
Sometimes, but only sometimes — and with permission of the court — the “respondent” (that is, the party filing the Response) gets a second swing of the bat. A sur-reply is an additional reply to a motion filed after the motion has already been fully briefed. It is an addition “Uh-uh!” if you will.
Following a motion being fully briefed (that is the motion, response, reply, and if one is permitted, sur-reply) have all been filed, the court will usually do one of two things. Either, it will call a hearing where the matters in dispute can be argued before the court. Or else it will simply issue its order.
Both of these require a bit more elaboration.
A hearing can be one of two types, either pure “argument” or “evidentiary.” Argument consists of offering and expressing one’s reasons in support of a particular point of view or position. It is a series of reasons given for or against a matter that is intended to persuade the listener, in this case the judge.
It is, well … argument. An evidentiary hearing on the other hand, is one where evidence is presented, “evidence” being proof of the position being taken. Argument may, for example, be asking in a domestic matter for a change of custody because it will be good for the child. Proof of the same position may be presenting a psychologist’s report or testimony supporting that the child is at risk.
An “order” — which may be issued without a hearing or after hearing depending on the particular nature of the matter — is a command of the court. “Thou shalt do such-and-such.” If the order is not followed, there will be consequences.
Sometimes — rarely — the court does nothing whatsoever with a motion in which case it is presumed to be denied after an appropriate lapse of time.
A lawyer is an arguer, scribe, zealot, and persuader to the court. And most times the firecracker is lit with the filing of a motion.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926.4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com, and coming soon, “Why I Walk So Slow.”