Motions and pleadings are the major tools for parties to “talk” to a judge and to each other in litigation. Between the two, motions and pleadings can commence a case, move a case along, and even kill a case. In the hands of the right person, they are powerful indeed. Yet, motions and pleadings are daunting. You got your “comes now”, “wherefores”, and “hereins”. Who understands all that?
The vast majority of civil pro se litigants don’t write their own motions and pleadings. They use pre-printed forms instead. Forms are easy to understand and quick to complete. They speed up the judicial process. With forms, clerks spend less time explaining rules. Judges can review information at a glance. Pro se litigants can take shortcuts by using forms. Complete the required sections, and you’re done. Sometimes all you need to do is sign!
While litigation documents are more difficult to produce than forms, they give you more control of your case strategy. And let’s admit it, forms are boring. Too, imagine if something you need to say is not in the form you have. Why bother completing it?
When you understand the differences between motions and pleadings, you won’t make mistakes about the kind of information needed or the expected outcome. You won’t have to tolerate missing information or wrongly worded clauses, and you’ll know the sections to include and how to write them.
Let’s look closer at motions and pleadings.
Defining Motions and Pleadings
Motions and pleadings serve different purposes. Everyone has heard of them, and may refer to them similarly, but they are not the same. Your success in litigation relies on your understanding of motions and pleadings and what they are and are not.
Definition. A motion is a request for an order from a judge. It is accompanied by cases and statutory law because it must sway the judge. In a motion, you will tell a judge why you should get an order in your favor. Then, you’ll argue that in court.
Examples of Motions. Motion to dismiss, motion for summary judgment, and motion for leave to amend.
Definition. A pleading is a formal statement in a judicial setting. That is, a party can commence a lawsuit by filing a formal statement or complaint with the court clerk. A pleading can also serve as a formal appearance, such as a defendant’s answer and affirmative defenses. A pleading does not ask a judge to make a decision now, so there is no need to persuade or use case law.
Examples of Pleadings. The complaint, the answer, affirmative defenses, and counterclaim
Similarities and Differences in the Structure of Motions and Pleadings
To most people, all litigation documents look about the same. That’s actually true upon first glance. Looking deeper though will reveal some key similarities and differences. Keep in mind that jurisdictions, and statutes might require slight differences in how a document looks. So the insights below are of a general nature.
The caption at the top of most litigation documents rarely changes, and it’s the same in motions and pleadings. The jurisdiction or name of the court where the case was filed is at the very top of the document. Underneath the court name and on the left is the names of the plaintiff(s) and defendant(s) in that order. On the right is additional information, which varies depending on the court. It could be case number, issue, division, etc. That’s all included in the caption.
Title (Same as to format)
Next is the Document title. The location may vary with jurisdiction or style, but typically it’s centered underneath the caption. It’s capitalized, bolded, or underlined or a combination of any of these so that it stands out. It’s usually in the same place and of the same format in motions and pleadings.
Motion. Underneath the title is a statement about what you want to “move” (ask) the court to do. “Comes now, Plaintiff Jane Doe and moves this court to deny plaintiff’s motion for summary judgment…”
Pleading. This varies by type of pleading. A complaint, for instance, requires multiple subsections such as jurisdiction, venue, description of parties and so on before the introduction. The actual introduction may be way down in the document. For most other pleadings though, the introduction is underneath the title. The party writing the pleading tells the court what he is about to do or purpose of the pleading. “COMES NOW Defendant, Richard Doe and Pursuant to Colorado code…answers Plaintiff’s Amended Complaint…”
Motion. You’ll start writing the body of your motion underneath the introduction. In the body, interweave facts with statutes and cases to make your argument. The tone is persuasive and argumentative because you will both state your position and oppose the position of your opponent. Use multiple headings for clarity where necessary.
Pleading. Pleadings vary widely. The body of a complaint may be a list facts in chronological order that might be proven later. An answer is the same list with a response underneath that denies, admits or explains the stated fact. Affirmative defenses are a listing of defenses and a set facts that support each. What makes them all pleadings is that they set out a particular position and are not trying to persuade.
Wherefore Clause and Prayer for Relief (Differ in content)
Motion. The wherefore clause tells the court what you want in the end. For a motion, it asks the judge to order something to happen. If you want a dismissal, you’d write a motion that ends with something like, “Defendant moves this honorable court to dismiss plaintiff’s amended complaint.”
Pleading. A pleading is about an entire case, not a single hearing or order. Say in a pleading what you want as a result of the case. A pleading might end with “Plaintiff prays for judgment against Defendant in the sum of $623, plus interest and costs together with any other relief the Court finds to be just and proper.”
You end the document with the name, signature, and contact information of the person filing the pleading or his/her attorney.
Motion. Rarely is it required that a motion be verified.
Pleading. Often, pleadings are required to be verified. That is, the person filing the pleading must declare under oath, (i.e. before a notary public) upon penalty of perjury that a statement or pleading is true.
Certificate of Service (Same)
Every document filed in a case needs a certificate of service that lists all the people who are to be served (given) the document. You should list the method of service, such as email or USPS, and the name, signature, and contact information of the person filing the motion or pleading or her attorney. This is to declare that you served or gave the other side the documents.
Forms are fill-in-the-blanks simple. Pro se litigants prefer them. Court clerks prefer them. Even judges prefer them. But forms won’t do as part of a case strategy. So ditch the forms and learn what you need to know about motion and pleadings, the documents that put litigation power in your hands.