A motion is a hearing in court before the trial of a lawsuit. It often involves seeking a court order to resolve some procedural dispute as the lawsuit proceeds to trial. For example, a party may be refusing to produce certain documents to the other party on the basis that the documents are protected by a solicitor-client privilege or the party may be refusing to answer certain questions in an examination for discovery (the disclosure examination) on the basis that the questions are not relevant to the subject matter of the lawsuit.
The motion is heard in open court but there are no witnesses giving oral evidence. The parties file written evidence in the form of affidavits. An affidavit is a statement by a party of the facts relied upon in the motion based upon direct knowledge, or upon information and belief, and the affidavit is sworn before a lawyer. There may also be cross-examinations on the affidavits to test the veracity of their contents and the cross-examinations are typed up and submitted to the court as transcripts of the evidence. To facilitate the court’s assessment of the motion, the “moving” party often submits a concise statement of the facts and the law relied upon and the responding party may file a reply statement.
A motion is an expensive interlocutory proceeding and should only be taken when the expected results will significantly help a party’s case. However, some parties, with the financial resources, will motion the other party “to death” and this can wear down the litigation resolve and the financial resources of the responding party.