A Primer on Civil Litigation Motion Practice for Wisconsin Legal Paraprofessionals

Preparing Effective Pretrial Motions In Civil LitigationA Primer for Legal Paraprofessionals

“Not Just Going ThroughThe Motions”

Wisconsin

Associatio

n

of Legal

Professional

s

Fall 2013

Goals for Today

• Expand my knowledge

about legal motions

• Grow in my

understanding of motion

practice

• Equip myself to be

more efficient and

more effective

in my firm’s

motion practice

Paralegal Instructor

Executive Program Chair

Globe University – Eau

ClaireFreelance Virtual Paralegal

Mister Paralegal

misterparalegal.com

Nonprofit Corporation

Director and OfficerAdvocate

Access to Legal Services

Presenter

Jeffrey

Ahonen

Legal

Paraprofessional

Since 1983

Not Just Going Through The MotionsPreparing Effective Pretrial Motions In Civil Litigation

A Primer for Legal Paraprofessionals

Plan for Today

1. Examine the legal

motion

2. Explore motion practice

3. Consider my role in

motion

practice

A motion is“an application to the court foran order.”

Wis. Stat.

§ 802.01(2)(a)

What is a

legal

motion?

The Motion

“An application to the court for

an order shall be by motion

which, unless made during a

hearing

or trial, shall be made in

writing.”

Wis. Stat. § 802.01(2)(a)

The Motion

The lawdoes not limitthe possible uses formotions

Practically

any type of

legal relief

imaginable

can be the

basis

for a motion

Statutory

law

and case

law

authorize

particular

motions

The Motion

“Just because you can

does not mean you ought.”

-- Your Mom

“Although a particular m

otion

can be made in a certain case,

that does not mean that you

ought to file it in

every case.”

-- Your Attorney

The Motion

Economicsdetermines whether amotion ought to bemade

Ethics

determines

whether a

motion

ought to be

made

Case strategy

determines

whether a

motion

ought to be

made

The Motion

“The rules applicable to

captions,

signing and other matters of

form of pleadings apply to

all motions. . .

. The name of the

party seeking the order or relief

and a brief description of the

type of order or relief sought

shall be included in the caption

of every written motion.

Wis. Stat. § 802.01(2)(d)

The Motion

Notice of Motionis almost alwaysnecessary

Supporting

Affidavit

or

Documentatio

n

is sometimes

necessary

The Motion

is always

necessary

The Motion

Motion Practice

Copies of all records and papers

upon which a motion is founded,

except those which have been

previously filed or served in the

same action or proceeding,

shall be served with the notice

of motion and shall be plainly

referred to therein.

Wis. Stat. § 802.01(2)(b)

The Motion

but only if opposing counsel is given reasonable timeuponrequest

to meet these

additional

proofs.

Wis. Stat.

§ 802.01(2)(b)

At the

motion

hearing, th

e

movant may

be allowed

to present

additional

papers,

The Motion




hearing

or trial, shall be made in writin

g,

shall state with particularity

the

grounds therefor, and shall set

forth the relief or order sought.”

Wis. Stat. § 802.01(2)(a)

The Motion

The motion must demonstrate the factual basis forthe legalremedy

The motion must

cite the law

that justifies

the relief

requested

The content

of the

motion

includes the

particular

legal

grounds for

the relief

requested

The Motion




hearing

or trial, shall be made in writin

g,

shall state with particularity

the

grounds therefor, and shall set

forth the relief or order sought.”

Wis. Stat. § 802.01(2)(a)

The Motion

This is, after all, the whole point of the motion

So, be specific!The content

of the

motion

includes a

statement o

f

the

particular

relief

requested

The Motion

Plan for Today


motion



motion

practice

Dispose of the Case,

In Whole or In PartMotion to Dismiss

Motion for Summary

Judgment

Not Just

Going

Through

The

Motions

Motion Practice

Challenge the sufficiency of

the summons

, Challenge the

legal grounds of

the caseChallenge

the

sufficiency of

the

complaint

Motion Practice

Lack of

capacity to

sue or be

sued

Claim is

stale due to

operation of

statute of

limitations

or laches

Failure to

appear or

to plead

Lack of subject matter jurisdiction

Failure to state a claim upon which relief can be

granted

Lack of

jurisdiction

over the

person or

property at

issue

Motion Practice

Motion Practice

Shape the Law

To Favor Your Case

Motion to Substitute Judge

Motion to Change Venue

Motion to Join Party

Not Just

Going

Through

The

Motions

Motion Practice

Changethe jurywho decidesthe factsof the case

Change

the party

who may be

found liable

and responsible

for damages

Change

the judge

who decides

the law

of the case

Motion Practice

Request for

Substitution of

Judge

By Statutory

Right

Motion to

Change Venue

In the Interest

of Justic

e

Motion to

Join a Necessary

Party

Motion to Change VenueDue to Improper Venue

Motion toDisqualifyJudge

For Cause

Motion to

Amend or

Supplement

Pleadings

Motion Practice

Motion Practice

Shape the Evidence

To Favor Your Case

Motion to Compel

Discovery

Motion for Protective Order

Motion in Limine

Not Just

Going

Through

The

Motions

Motion Practice

Protectprivilegedevidencefromdiscoveryby youropponent

Define the scope

of trial evidence

in advance of

trial, to

the

advantage of

your case

Obtain the

evidence

held by the

opponent to

assist i

n your

case

preparation

Motion Practice

Motion to

Compel

Discovery

Motion to

Quash

Subpoena

Motion in

Limine

Prohibiting

Certain

Evidence

Motion for Protective Order

Motion forIndependent Medical Examination

Motion in

Limine

Allowing

Admissibility

of Certain

Evidence

Motion Practice

Motion Practice

All motions may be,

and certain motions must be

heard and determined before

trial upon motion of any party,

“unless the judge to whom the

case has been assigned orders

that

the hearing and determination

thereof be deferred

until the tria

l.”

Wis. Stat. § 802.06(4)

Motion Practice

Local practices specify how

Motion hearings are set

Check with the

Judicial Assistant

or Clerk of Court

to determine

how to schedule

a hearing there

The date of

the hearing

on the

motion

ought to be

included in

the Notice of

Motion

Motion Practice

Ex Parte

Motions are

heard without

notice, but

onlyin certain

circumstances

Any opposing

affidavits are

to be served at

least one day

prior to

hearing

Practically

speaking,

failure to

respond to a

motion is

perilous

Motions are to be served

at least five business days prior to hearing

Certain relief is requsted via an Order to Show Cause rather thana motion

Legally

speaking,

there is no

requirement

to respond

to a motion

Motion Practice

Motion Practice

Plan for Today


motion



motion

practice

Do not let yourself just go through the

motions

Do

grow your

proficiency

in motion

practice

Do

continue to

do all of y

our

fabulous

work in your

law firms

Your Role in Motion Practice

You can help your attorney to anticipate and prepare for in-court motions

You can be

a great help

to your

attorney by

writing great

motions

Motions a

re

made orally

while in

court, or in

writing.


You can help your attorney to gather and

organize the testimonyand evidence

You can help

your

attorney with

researching

and arguing

the legal

grounds

Motions

must state

the

particular

factual and

legal

grounds


Plan for Today


motion



motion

practice

Preparing Effective Pretrial Motions In Civil LitigationA Primer for Legal Paraprofessionals

“Not Just Going ThroughThe Motions”

Wisconsin

Associatio

n

of Legal

Professional

s

Fall 2013

Goals for Today

• Expand my knowledge

about legal motions

• Grow in my

understanding of motion

practice

• Equip myself to be

more efficient and

more effective

in my firm’s

motion practice

Thank you for giving me

this opportunity to share

this information with you.

I hope you found it helpful.

-- JeffJeffrey Ahonen

715.403.3272 Cell

[email protected]

Wisconsin

Associatio

n

of Legal

Professional

s

Fall 2013

A Primer on Civil Litigation Motion Practice for Wisconsin Legal Paraprofessionals

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Transcript of A Primer on Civil Litigation Motion Practice for Wisconsin Legal Paraprofessionals