Motion Practice

• Author: Jennifer Duncan-Brice
• Pages: 561-616

MOTION PRACTICE

14-1

CHAPTER 14

MOTION PRACTICE

QUICK VIEW

Def‌inition: A motion is an application to a court for an order granting some form of relief, such as requiring a party

or nonparty to act or forbear from acting in a certain way. Motions are usually made in writing and on notice to the

other parties, although some emergency motions may be made ex parte, i.e., without notice.

Scope: Rules and techniques common to all motions. Formalities of notice. Requirements for written motions, oppositions,

briefs and supporting materials. Procedures and tactics for the hearing on a motion. Special types of motions: ex parte

motions; emergency motions; disclosure motions.

Strategies and Tactics:

• Prepare motions and supporting materials carefully so that a busy judge quickly understands why relief

should be granted or denied.

• Observe the formalities of motion practice to avoid delay and extraneous arguments about procedure.

• When making a motion, consider whether the subject of the motion is crucial to your case. If not, see if

you can work out the dispute with your adversary without making a motion.

• Motion practice varies considerably among counties; you must know your local rules when engaging in

motion practice.

Statutes and Rules: Motion practice is governed by SCR 63(C)(3), 131, 137; 735 ILCS 5/2-615, 619, 1005; and

by rules governing specif‌ic motions. Local court rules may amplify these rules.

Related Topics: Attacking the Pleadings, Ch 15; Temporary Restraining Orders and Preliminary Injunctions, Ch 16;

Discovery Disputes, Ch 27; Summary Judgment, Ch 30; Default Judgment and Dismissal for Want of Prosecution, Ch 31.

MOTION PRACTICE

Illinois Pretrial Practice 14-2

TABLE OF CONTENTS

I. OVERVIEW

§14:01 Purpose of Motion Practice

§14:02 Motion Def‌ined

§14:03 Formal vs. Informal Motions

§14:04 Use Informal Motions to Your Advantage

§14:05 Types of Motions

§14:06 Sources of Law

§14:07 Governing Rules

§14:08 Form

§14:09 Pleadings Distinguished

§14:10 Discovery Motions: Attempt to Resolve Dispute Required

§14:11 Dealing With Uncooperative Counsel

§14:12 Build a Record of Efforts to Consult

§14:13 Strategic Considerations: Should This Motion Be Filed?

II. PREPARING, SERVING, AND FILING THE MOTION

A. Formal Requirements

§14:20 Pitfalls to Avoid

§14:21 Should Be in Writing

§14:22 Format

§14:23 Caption

§14:24 Multiple Parties

§14:25 Designate Nature of Motion

§14:26 Introductory Paragraph

§14:27 Contents of Motion

§14:28 Name and Address of Person or Attorney Filing Motion

§14:29 Setting Motion for Hearing

§14:30 Brief‌ing Schedule

§14:31 Response to Motion

§14:32 Cross-Motions

B. Essential Elements of Motion: Factual Basis, Law, Notice

1. Facts: Aff‌idavits and Exhibits

§14:40 Supporting Facts

§14:41 Form of Aff‌idavit

§14:42 Material Facts Not Obtainable by Aff‌iant

§14:43 Using Exhibits

§14:44 Judicial Notice

§14:45 Objections

§14:46 Depositions

§14:47 Testing an Aff‌idavit

§14:48 Scope of 191 Aff‌idavit

§14:49 Signed by Party

2. Law: Drafting the Brief

a. Practice and Procedures

§14:60 Brief Not Required

§14:61 Courts Often Rely on Brief

§14:62 Be Clear and Concise

§14:63 Omit Boilerplate

§14:64 Page Limits

§14:65 Paper Size and Spacing

b. Summary of Argument

§14:70 Summarize Argument at the Beginning

§14:71 Relate Your Argument to the Summary

MOTION PRACTICE

14-3 Motion Practice

c. Factual Orientation

§14:80 State Only Relevant Facts

§14:81 Don’t Refer to Facts Not Supported by Aff‌idavits

§14:82 Don’t Hide Adverse Information

d. Citing Authority

§14:90 Citation Principles

§14:91 Use Off‌icial Illinois Citations

§14:92 Attach Copies of Out-of-State and Federal Cases

e. Styles to Avoid

§14:100 Minimize Rhetoric

§14:101 Avoid Personal Attacks

§14:102 Don’t Patronize the Court

3. Notice: Serving the Motion

a. Notice Requirements

§14:110 Motion Must Be Served

§14:111 Notice of Hearing

§14:112 Time for Giving Notice of Hearing

b. Procedural Requirements

§14:120 Documents to Be Served

§14:121 Notice of Motion

§14:122 Serve Party’s Attorney

§14:123 Service on Party

§14:124 Defaulted Party

§14:125 Before Defendant’s Appearance

§14:126 Failure to Give Notice

4. Methods of Service

§14:130 Service Requirements

§14:131 Effective Date of Service

§14:132 Rescinding Consent to Facsimile Service

C. Filing the Motion Papers

§14:140 Each Party Files Own Papers

§14:141 Courtesy Copies for Judge

§14:142 Order Setting Brief‌ing Schedule

§14:143 Abandonment of a Motion

§14:144 Motions With Specif‌ic Time Limits

III. OPPOSING THE MOTION

A. Preliminary Considerations

§14:150 Should Opposition Be Filed?

§14:151 Appearance at Initial Hearing

§14:152 Contents of Response

§14:153 Serving the Response

§14:154 Summary Judgment: Don’t Rely on Aff‌irmative Defenses

B. Cross-Motions

§14:160 Def‌inition

§14:161 Serve With Response

IV. REPLY BRIEF

§14:170 Def‌inition

§14:171 Schedule

§14:172 Reply Brief Not Mandatory

§14:173 Aff‌idavit Attached in Reply