United States: Behind The Curtain At The Courthouse – Motions

Last Updated: November 25 2013
Article by Robert A. Epstein

As I sit here waiting to argue a motion at the Essex County courthouse in Newark, the inquiry common to all clients comes to mind – "What happens in court?"  The answer varies widely depending on your purpose for being there – is it a motion?  status conference?  settlement conference?  early settlement panel?  trial?  Aside from motions, which are generally filed voluntarily by litigants, the court will compel your attendance at several times throughout a given matter with the ultimate goal of settling your case and allowing you to move on with your life.

So, what happens in the "motion" process?  Here are a few of the bigger steps along the way.

1.  When do I file the motion?:  Motions in the Family Part generally need to be filed 25 days prior to the "return date" (day when you appear in court to argue the motion).  As motions are usually heard on Fridays ("motion days"), that means your motion wouldwill have to be filed 4 Tuesdays prior.  Your motion will typically consist of the Notice of Motion (requests for relief – i.e., what do you want the Court to do), Certification of no more than 15 pages (your story, under oath, as to why you are asking the court for said relief), and a proposed form of Order memorializing the requested relief.  A legal brief may or may not be included depending on the issues.  If you are seeking to modify support, are making a claim for fees, or any other request for relief where the Court will have to consider your income and assets, a Case Information Statement is often filed as well and, in some cases, is required per the Rules of Court.  Attached to your certification will be all of the exhibits that you believe support your position.  Some judges like more exhibits, and others like less.  Since motions in the Family Part are oftentimes consist of nothing more than "he said/she said" versions of events, however, it is nice when an actual document can be attached in support of your claims.

2.  When does the other party respond to the motion?:  Assuming that the court will hear your motion 25 days after you filed (4 Fridays later), the other party's response to your motion is due the Thursday after you filed (in other words, 15 days before the court date).  The other party may simply oppose your motion but, more likely than not, he or she will seek various forms of relief by way of a cross-motion, even if it is just for fees for having to respond to your motion.  The opposing party gets up to 25 pages to respond in a certification, because you had up to 15 pages to initially tell your story, and then get 10 pages to provide a final reply.

3.  Who gets the last word?:  Family law litigants love to have the last word.  With motions, the person who filed the motion gets that last word, known as a "reply" (unless the other party improperly submits a reply, which happens from time to time and is even sometimes justifiable).  Your reply will typically consist of a certification of up to 10 pages, and maybe a brief, depending on the issues.

4.  Are we there yet?:  Then, presuming that oral argument is scheduled, you will go to court with your attorney (if you are represented) to argue your position.  Oftentimes, the trial judge will simply want to hear a top line version of your arguments since he or she will have already read the motion papers.  In certain instances, the judge will call the attorneys into chambers to discuss the motion before hearing it on the record.  This time may be used to see if the parties can resolve any of the issues to limit what the court has to address.  Litigants often want to know every word of what is said behind the mysterious red curtain of the judge's chambers, and it usually is nothing more than a discussion of the issues.

5.  Decisions, Decisions:  The court will typically make a decision following oral argument and, in some instances a decision has made before your attorney even utters his first word to the judge during oral argument.  Some judges even issue a tentative decision days before oral argument, thereby allowing the litigants to decide if they still want to go to court to argue the motion.  It helps streamline the court calendar while potentially saving litigants money for their attorneys having to prepare for and attend argument.  Where more complicated motions are involved, the judge may need more time to make a decision after oral argument concludes.  Litigants understandably do not want to wait any longer after having filed the motion almost a month earlier (presuming no adjournments, which commonly occur due to busy court calendars, judicial rotations, vacations, conflicts, and the like), but when the decision is rendered is beyond his or her control.

6.  When do we go home?:  Once argument ends, and hopefully a decision has been made, it is time to leave and work towards the next step of the case.  Oral argument is often very stressful and emotionally draining for litigants, especially in the Family Part.  Even a decision may provide a degree of false hope, as then the parties have to actually comply with the Court's Order...or else this process may start again with a new motion to enforce the prior Order.

There are many other occurrences that may happen along the way, but these are the main components of the motion process that litigant's are commonly asking about and should be prepared for on the journey to court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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