April 2008 #1. Tips for Motions in Hawaii State Courts.

• Author: by Derek R. Kobayashi

Hawaii Bar Journal

2008.

April 2008 #1.

Tips for Motions in Hawaii State Courts

Hawaii State Bar JournalApril 2008Tips for Motions in Hawaii State Courtsby Derek R. Kobayashiby Derek R. Kobayashi

Ed. Note: After this article was written, the Hawaii Circuit Court Civil Administrative Orders were repealed, and changes are proposed in new civil rules currently posted for public comments. These changes will be discussed in a future issue.

Drafting and filing effective civil motions in Hawaii state courts starts with understanding and applying the fundamentals. The following compilation of tips presents several of these basics as a rudimentary guide for the preparations of motions.

Must a Motion be Filed?

Perhaps one of the initial considerations in motions practice, which sounds simple but should not be overlooked, is does a motion have to be filed? Certainly litigation can be a contentious process but this should not mean that counsel must file a motion or require the opponent to bring one at every turn over every issue.

Whether procedural or substantive, a motion should have as its essential purpose advancing the client's litigation goals. Thus, it is important to maintain a clear understanding of those goals, e.g., early resolution of the lawsuit, preservation of a business relationship with the opposing party, avoidance of an adverse judgment, when considering the necessity of a motion. Discuss these goals with the client at the outset and frequently during the course of the litigation. Keeping these goals in mind should help the litigator remember the "big picture" when assessing the timing of and the need for a motion.

The litigator's pursuit of the client's goals should also be appropriately tempered. While a lawyer should act with commitment, dedication to the client's interest, and with zeal, "a lawyer is not bound to press for every advantage that might be realized for a client."1 At times, therefore, one might advise against advancing a position or requiring an opponent to file a motion where doing so does not advance the interests of the client and would simply be overkill.

For example, opposing counsel might request an extension of time to respond to a complaint or to a discovery request. The request could be declined and the opponent made to file a motion for extension of time. But the request for an extension might be reasonable under the circumstances and, if given, additional time would not adversely affect the client's interest. In those circumstances, counsel should grant the requested extension. A professional guideline adopted by the Hawai'i State Bar Association and the Hawai'i Supreme Court specifically states that a lawyer who manifests professional civility and courtesy "[a]grees to reasonable requests for extensions of time or continuances without requiring motions or other formalities."2

Our Hawaii litigation bar is perhaps more collegial and civil than others. There is a certain discernable expectation that our litigators seek to work out issues with their opponent over the course of a lawsuit. In fact, another professional guideline specifically states that "[m]otions should be filed sparingly, only in good faith and when the issue cannot be otherwise resolved."3 It is a principle well worth remembering and heeding; motions are not to be liberally filed and, unless specifically required under the court rules, should be brought after counsel has attempted but could not resolve the issue with opposing counsel. Failing to achieve a resolution, it may be necessary to proceed with a motion.

What Should the Motion

Look Like?

After deciding to bring a motion the litigator might ask, "What should the motion look like?" Taking a moment to envision the finished product, focusing on the form of the motion and its contents before drafting can help to ensure a complete and persuasive product. Making a checklist of the components of the motion should assist in the planning of such tasks as legal research, development of supporting documents, drafting and review by others, before the motion is finalized and filed.

A Motion is an Application to the Court

Before drafting the motion, it may also be helpful to keep in mind the basic distinction between pleadings4 and a motion, and the inter-relationship between the two. The pleadings set forth the parties' factual allegations, denials, claims, and defenses. Pleadings give notice of and frame the subject matter of the lawsuit pending between the parties.

By comparison, a motion is "an application to the court for an order."5 The motion is the vehicle by which, as its name plainly suggests, one "moves" and seeks to persuade the court to afford some form of relief or issue an order - not in some general or abstract manner, but in reference to the subject matter of the lawsuit as outlined by the pleadings. Thus, one technique is to structure the motion with specific reference to the subject matter of the litigation as set forth in the pleadings.

For example, a defendant may move the court for dismissal arguing that the pleadings fail to state a claim upon which relief can be granted against that defendant.6 Even non-parties may seek relief by way of motion, e.g., a motion to intervene in the lawsuit where the movant claims an interest relating to the property which is the subject matter of the lawsuit.7 Specifying in the motion the relief requested in relation to the pleadings should help to focus the court, with precision, on the matter at issue.

Essential Elements of a Motion

A motion does not have to be an onerous, time consuming writing comprised of a lengthy supporting memorandum and a mountain of exhibits. While it is important to ensure completeness for adjudication of the issue and the trial court record, brevity in presentation of the motion is a worthy goal. After all, the court and opposing counsel have to read and understand the motion and in the best case scenario both would find it persuasive.

Notice of Motion, Relief Sought and Particular Grounds Therefor

In fact, a motion could conceivably be one page in length. A motion must be in writing, unless made during a hearing or trial, and in addition to the statutory or rule authority,8 must set forth two elements: the motion "shall state with particularity the grounds therefor, and shall set forth the relief or order sought."9 The "writing" requirement is satisfied if the motion is stated within a written notice of hearing of the motion.10 Stated another way, a motion and the notice of hearing can be written on the same page and do not have to be separately presented.11

Generally that is it, all that is a required of a valid motion. If the notice of hearing, request for relief, and a particularized statement of the supporting grounds and authority are all that is required, how does one determine what else, if anything, accompanies the motion being considered?

A key and perhaps necessary approach is to evaluate whether the motion presents an issue of fact or law, or both. Counsel must also be familiar with the existing court record.

Affidavit or Declaration Required In Support of Motion

Note that a motion can be sufficient without an accompanying affidavit of facts.12 Take for example a motion for judgment on the pleadings13 which "only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain."14 Such a motion is adjudicated without reference to any factual allegations beyond those in the...