SC Lawyer, Jan. 2005, #9. The Scrivener - Motions.

• Author: By Scott Moise

South Carolina Lawyer

2005.

SC Lawyer, Jan. 2005, #9.

The Scrivener - Motions

South Carolina Lawyer January. 2005

The Scrivener - MotionsBy Scott MoiseMotions practice is an indispensable part of litigation. Cases are often won or lost with motions, whether the motion seeks to compel production of a crucial piece of evidence, exclude prejudicial evidence from trial, or, most directly, dismiss the case. Thus, a firm understanding of the requirements for written motions is necessary to any successful practice. This column focuses on the basic form for all motions; future columns will cover specific types of motions.

In both state and federal courts in South Carolina, motions must contain the following basic components: (1) a statement, with particularity, of the grounds for the motion and (2) a statement of the relief or order sought. See Fed. R. Civ. P. 7(b)(1); S.C. R. Civ. P. 7(b)(1).

Federal and state courts have different requirements as to whether movants must file a memorandum along with the motion. In South Carolina state court, parties may file motions without accompanying memoranda. Therefore, litigants need only file simple motions that set forth the grounds and relief sought. Moreover, if parties want to file a memorandum, they do not have a deadline for doing so under the state rules. Therefore, a memorandum may be filed and served at any time before - and possibly even after - a hearing on the motion. Not filing a memorandum in advance of the hearing is risky, however, because the judge may rule without a hearing or may be already persuaded by a well written brief from opposing counsel.

In contrast to state court, the South Carolina federal district court requires written memoranda to be filed along with the motion unless: (1) a full explanation of the motion is contained within the motion and (2) a memorandum would serve no useful purpose. See Local Civil Rule 7.04 DSC. Motions to compel are exempt from this rule, but must meet separate requirements under Local Rule 7.04. To stand alone, the motion must contain the same contents as a memorandum: (1) a concise summary of the nature of the case; (2) concise statement of the facts, with the locations in the records; (3) a brief argument with citations; and (4) copies of unpublished, out-of-region court decisions or decisions in specialized reporting services (such as the UCC reporting service). Id. at 7.05.

1. Begin by stating who you are, what you want, and the authority for the request.

   Begin by introducing the party making the motion and stating exactly what the moving party wants the court to do. Additionally, state the procedural rules that apply to your particular motion, which some courts have found were necessary to meet the "particularity" requirement under Rule 7(b). See, e.g...