Law and motion practice is the nuts and bolts of litigation and fertile ground for training new attorneys. To make sure you don’t miss anything the next time you’re hit with a notice of motion, here’s a handy checklist to use.
Motions that come within the scope of law and motion practice range widely—from challenges to a complaint for lack of a court’s jurisdiction to motions seeking sanctions for failure to comply with a court order.
If you’re on the receiving end of a notice of motion, here’s what you need to do:
___ Read and analyze the motion papers to determine the effect of an order on your client.
___ If the motion is directed to another party and its grant or denial wouldn’t affect your client’s position, just monitor its progress to ensure against the issuance of an unexpected order.
___ If the motion is unobjectionable, tell the moving party that you won’t oppose it.
___ If a compromise could make the order sought unnecessary, negotiate a modified order or an arrangement with the moving party.
___ Consult the statutes or rules authorizing the motion to determine whether it was properly made and supported.
___ Find out the date on which the opposition papers must be served and filed, and
- if you need additional time to respond, seek an agreement with other counsel to reschedule the hearing and due date for the papers opposing the motion;
- If you can’t get an agreement, make an ex parte application for additional time.
___ Prepare your opposition papers, including:
- memorandum in opposition to motion;
- declarations, if needed;
- Exhibits (papers and documents not yet on file);
- requests for judicial notice;
- objections to evidence in motion papers;
- proposed order; and
- proof of service of above papers.
___ Serve and file your opposition papers.
___ If the moving party serves reply papers, review them and, if there’s time, file a written response.
___ Check with the court for a tentative ruling.
___ Notify the court and opposing counsel of your attendance at the hearing if the tentative ruling system so requires.
___ Attend the hearing and present
- oral argument,
- evidence, if permitted, and
- any written response to reply papers that wasn’t previously filed.
___ If ruling is favorable
- prepare order and notice of ruling, if necessary, and
- serve and file notice of ruling and signed order (unless done by court or otherwise unnecessary).
Details on each of these steps as well as practical tips for law and motion practice can be found in CEB’s California Basic Practice Handbook, chapter 5. This convenient reference book is a must-have for new or solo practitioners, as it enables you to rapidly identify frequently encountered issues in a wide array of practice areas.
Other CEB blog posts you might find helpful:
- 12 Tips for Direct Examination in Depo or at Trial
- Organizing Discovery
- The Secret to Better Legal Writing
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