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Motions in Appellate Law

What is a Motion?

A motion is a procedural or strategic device to bring an issue before the court. The type of motions that can be filed vary upon the type and procedural posture of a case.

There are several types of motions, and the litigation process generally requires an appellate attorney to draft and argue motions for clients and trial attorneys.  Here are some of the most common types of motions.

Types of Motions

Motion to Dismiss

The defendant files a motion to dismiss to ask the court to dismiss the case because the claim has no merit or there is no remedy under the law.

Discovery Motions

In the discovery phase of litigation, both sides learn more about the facts of the case by requesting and exchanging information which may be used at trial. Discovery motions are most commonly filed when one party fails to provide requested information.

Motion to Compel

A motion to compel is most commonly used motion during the discovery phase to ask the court to force the other party to provide requested information or answer questions in a deposition. If granted, failure to comply may result in contempt of court charges.

Motion to Strike

A motion to strike asks the court to remove something from the court record. This type of motion is often used when the record contains inaccurate information or inadmissible evidence.

Motion for Summary Judgment

A motion for summary judgment is one of the most frequently used motions. A party files a summary judgment motion if there are no important facts in dispute, to ask the court to decide the case as a matter of law. This motion requires supporting affidavits and evidence to establish that there are no contested material facts.

Motion for Directed Verdict

A motion for directed verdict also asks for the court to end the case, but it is not filed until after the presentation of evidence. In this motion, the defendant or plaintiff alleges that the opposing party has not proven its case, and asks the court to direct a verdict in its favor.

Motion for Nonsuit

A motion for nonsuit resembles a motion for directed verdict, except they are made only by the defendant (not the plaintiff), and may be made as soon as the plaintiff makes its opening statement.  However, if the defendant moves for nonsuit, the plaintiff has the right to re-open its case, whereas courts have discretion to deny reopening after motions for directed verdict.

Motion in Limine

A party makes a motion in limine before the case is tried before a jury. The filing party seeks to exclude evidence (exclusionary), include evidence (inclusionary), or prevent inadmissible evidence (preclusionary). These motions seek to ensure a fair trial by preventing the jury’s exposure to prejudicial evidence. If violated by either party, it can result in a mistrial.

Motion for Judgementn.o.v. (non obstante verdict)

In a motion for judgment n.o.v.the defendant asks the judge to reverse the jury’s decision.

Motion to Set Aside Judgment

A motion to set aside judgment is made after a judgment or verdict has been reached. This motion requires newly discovered evidence that was not available at trial and which casts doubt on the original judgment or verdict.

Motion for New Trial

After a verdict, either party may file a motion for a new trial. This motion differs from the motion to set aside judgment because it requests a completely new trial. There are strict time limits in which to request a new trial, so it is important to seek assistance from an experienced trial or appellate attorney.


Hearing vs. Non-Hearing Motions

While some motions require hearings, the court decides non-hearing motions based on submitted memoranda and supporting affidavits or evidence. In hearing motions, attorneys argue for or against the motion and present facts and evidence before the court. After a motion hearing, the court issues a ruling and may sometimes provide written reasons for its decision.

When Should You File a Motion?

Motions have time limits which depend on each individual case. You should contact an experienced trial or appellate attorney to discuss applicable time limits.

Do I Need an Appellate Attorney to File a Motion?

We recommend that you seek help from an experienced trial or appellate attorney to file a motion. Most people do not have enough knowledge of the law or procedures, so it is important to seek help from an experienced trial or appellate attorney to ensure the best possible outcome for your case.

File a Motion With an Appellate Law Firm

Mitchell Keiter is a certified appellate specialist in the state of California for Keiter Appellate Law. He has participated in nearly 600 appeals in both state and federal court.

Contact our office today to speak with us about filing a motion within any applicable time limits.

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