For the last five years, I have coached my kids’ rec league basketball teams along with some other dads in the neighborhood. One of the biggest challenges we see with young ballplayers is the temptation to stand in place, arms waiving, shouting for the ball. “Move on offense!” we tell them, over and over. “Don’t stand and wait for the ball to come to you!” Things happen when players move. Small wonder so many high school basketball teams run an offensive scheme called “Motion.”
People or companies tied up in a lawsuit for the first time often suffer, like young ball players, from the misconception that the “game” is going to come to them. In particular, they assume (understandably, but wrongly) that the judge assigned to their case will automatically dig into the facts and take a proactive role in pushing things toward resolution.
In reality, judges rarely respond to anything that hasn’t been brought to their immediate attention by way of a “motion.” “Motion practice” refers to the procedures by which litigants and their attorneys seek input and instruction from the court as they work their way toward an ultimate trial. If you are having trouble with the other side not playing by the rules, you can’t just pick up the phone and call the judge. Instead, you have to “file a motion.”
Motions make sure that the judge has been given a clear, written explanation of the situation and the relief you seek. And they protect fairness by giving the other side a chance to respond with their side of the story. Often, a judge won’t make a decision on a motion without first having the lawyers show up to “argue the motion,” making sure the judge understands the issues and has an opportunity to ask any questions.
The biggest problem with motion practice, I think, is the added expense it creates, especially when dealing with fairly small or routine issues. The actual hearing before the judge may take only five minutes. But if lawyers for both sides travel a half-hour each way to the courthouse, and then sit and wait an hour before the judge calls their case, all that attorney time gets expensive. Fortunately, some courts are using technology more consistently to pursue telephonic and “virtual” hearings with the goal of streamlining the process.
If you find yourself mired in a lawsuit, don’t stand in the corner waiting for the judge to come find you. Develop a strategy that seeks the court’s assistance to streamline the issues and (assuming it’s in your best interest) pushes the matter toward conclusion.