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Preparing for Court

Before the Trial

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How do I ask the court to take specific actions while my case is pending?

You can ask the judge to take some kind of action while your case is ongoing by filing or “making” a motion. A motion is a request that the judge grant some kind of relief related to your court case. There are a few different ways that you can make a motion.

  • Oral motion - You can make a motion verbally (orally) while in court. This can be at the initial appearance, at a status appearance, or during a hearing. Usually, you can use an oral motion when the request is not complicated, or if it is an urgent request that you are hoping the judge will grant that day. When you make an oral motion, the other party or his/her attorney can respond by arguing against the motion. The judge will either make a decision during court, hold off on making a decision to consider it further, or the judge might ask you to put the motion into writing.
  • Written motion – Each state and jurisdiction may have its own process for filing written motions. To make a motion in writing, you may need several different documents. Your court may have a specific form that needs to be filed for a motion, and you will usually also submit supporting documents like an affidavit in support of the motion, a memorandum of law (if necessary), and exhibits that would be admissible at a hearing. If you have an attorney who is representing you, the motion that s/he files on your behalf would also include an affirmation from your attorney. Some states also require you to file a notice of motion that outlines what you are asking for and sets a time for you to appear in court to present (argue) your motion to the judge. In some situations, you might also make a motion by writing a letter to the judge that explains what you are asking for, and why. Any time you send anything in writing to the judge you must also send a copy to the other party or his/her attorney. The other party would then have a chance to respond.
  • Emergency motions – Different jurisdictions will have different ways for a person to file for an emergency order from a judge. This might be called an emergency motion, an order to show cause, a show cause motion, or something else. Generally, a judge will only grant emergency relief if there is some chance that serious harm might result if the temporary relief is not granted. The judge might grant an emergency order, but then schedule a court appearance within a few days. After the appearance, the judge can decide whether or not to grant the requested relief on a more permanent basis.

What kind of motions can I make?

Your motion must be related to the case that is pending before the judge. Here are some other common motions:

  • Motion for a temporary order – You can ask the judge to grant a temporary (interim) order while the case is pending. This might be a temporary restraining order or a temporary custody order. In a divorce case, you may be able to make a motion for temporary relief like support, attorney’s fees, exclusive use of a marital residence, an order prohibiting the parties from using marital assets or taking on marital debts not related to day-to-day living expenses, or other relief as necessary.
  • Adjournment requests – Even simple requests like adjournments are technically motions. An adjournment is a postponement of a court date. Depending on how far away the court date is, you might need to provide a convincing (compelling) reason for a judge to grant an adjournment. If you cannot attend a scheduled court date, usually you can request an adjournment verbally on the prior court date, or you can send letter to the court with a copy sent to the other side. Be sure to ask the court clerk exactly where to send your written request for an adjournment. If you can get the other side’s agreement to adjourn the case, it may increase the likelihood that the judge grants your request.
  • Motion to dismiss – If the court case is filed by an abuser only as an attempt to further abuse, it may not be serious (frivolous), lack merit, or have some other defect, and then you can motion for it to be dismissed without having to go through a trial. It will be up to the judge whether to grant a motion to dismiss.
  • Discovery-related motion – In some types of cases, the parties will exchange information and documents before trial, which is called discovery. Discovery may not be granted automatically in certain cases, and in those cases, you might have to make a motion to get access to certain information from the other party. In addition, if the other party is not cooperating with discovery, you can file a motion to compel to force him/her to cooperate with the discovery process.

How do I get the judge to grant my motion?

A judge will make his/her decision on a motion based on the law that applies, the facts of the situation, and the arguments made by the parties for, and against, the motion. The more complicated the situation, the more likely it is that you should put your request in writing so that the judge has a clearer picture of what is going on when making a decision. If you know the statutes or the prior cases that apply to your motion, you can include that information in a “memorandum of law.” A memorandum of law would typically be drafted by a lawyer and explains the legal reason why a motion should or shouldn’t be granted. It may not be necessarily to include a memorandum of law with your motion for a judge to grant it. You can also use an affidavit or several affidavits in support of your motion to show the judge the seriousness of the matter and to support your request for the relief. An affidavit is a sworn statement generally containing first-hand information. You can submit an affidavit for yourself and any other witnesses whose input might be relevant to the situation. Keep in mind that you are under oath when you sign an affidavit and you can only include information that you have personally seen or you know for yourself, not that you have heard from someone else. You might also be able to attach copies of photographs or other documents that you have in your possession to help persuade the judge to grant your motion. These attachments will usually be included as exhibits to an affidavit and the affidavit should include information about where the attachment comes from and why it is important.

Do I need a subpoena for potential witnesses to testify?

Anyone can be a witness – a friend, a family member, children, an emergency room nurse, a doctor, a stranger who saw or heard the abuse, a law enforcement officer, etc.

Some witnesses may not come to court unless they are given a subpoena that commands them to appear and testify. Court clerks usually have subpoena forms that you can fill out and the subpoena will have to be signed by the judge. There may be specific rules in your state regarding how the witness has to be served with the subpoena and even how many days in advance of the hearing s/he must be served. Be sure to ask the clerk or the judge for this information. In some states, the sheriff department will serve the subpoena. In other states, you may have to get someone over the age of 18 to serve it, or a process server. You can ask the clerk of court how to have your subpoenas served.

If the people you subpoena do not come to the hearing, let the judge know. The judge can penalize them for not showing up and you can ask the judge to postpone the hearing until the subpoenaed people do appear.

How do I respond to a motion to dismiss made by the other party?

A motion to dismiss might be in writing or it could be made verbally in court. Either way, how you respond to a motion to dismiss will depend on the reason why the other party or his/her attorney is making the motion.

There are many reasons why a case could be dismissed before trial. A few examples are:

  • the facts alleged do not support the cause of action;
  • the court does not have jurisdiction;
  • there is something wrong with the paperwork;
  • the statute of limitations has passed; or
  • the issue has resolved and there is no longer an existing controversy (moot).

A motion to dismiss could be because the petition that you filed is not sufficient to support the relief that you are asking for. Maybe you did not allege a change of circumstances to modify a custody order or you failed to include enough information about domestic violence when seeking a restraining order. So, you should be prepared to argue that your petition is has enough information to support your cause of action. You might also be able to ask the court to grant you permission (“leave”) to amend your petition so that you can add additional details that might be necessary to strengthen your defense to the motion to dismiss.

Another possible reason that the other party could move to dismiss your petition is because s/he argues that the events you allege in your petition did not happen at all. If the defendant makes this motion, it might include affidavits from witnesses or other documents that would be admissible at trial to show his/her side of the story. If the motion to dismiss is convincing, you might have to present your own affidavits and documents to prove that the allegations did occur as you have described, or at least there is a question about the facts of the case as to whether or not what you have alleged actually happened. A question of fact means that there is a real dispute as to what actually took place between the parties.

If the other party lives in a different state from where you filed your initial court petition, then s/he might file a motion to dismiss for lack of personal jurisdiction. This means that the state where you filed might not have jurisdiction (power) over the other party. To defend against a motion to dismiss for lack of personal jurisdiction, you should be prepared to show the judge that the other party has had “contact” with the state where you have filed the case, s/he was served in the state, or there is some other reason why the court has jurisdiction. For more information, go to our Personal Jurisdiction page.