The first hearing generally happens almost immediately. I mean REALLY immediately. You have 28 days to file an answer after you are served, but you may have only seven days to file a response to a request (it’s called a MOTION) for temporary relief: you really have less than that to file the response, the hearing itself can be seven days after you are served. These “little” hearings are called MOTION hearings, and they are presumed to be small little hearings (very different from a trial: no testimony is generally allowed) to resolve small little problems, presumably based upon things that “no reasonable person could dispute”. Well, of course, people DO dispute some of the things set forth, and, when there is an honest dispute, nothing much gets accomplished at a motion hearing. When there is not a reasonable dispute, however, orders get entered, because they SHOULD be entered: there is no reasonable dispute about the facts claimed by the moving party, and the moving party is entitled to the relief, so why not give it to him now?
I have to get a little technical with you to properly explain how this stuff works: it can’t be helped. Just bear with me.
At a trial (and thank goodness, we all saw the O.J. Simpson trial, so making this point is now easier) things are long, technical, boring, and a real mess: witnesses get to drone on and on, lawyers (dontcha love ’em?) get to drone on and on, judges drone on and on (how unusual…) and it’s going to be FOREVER until it’s actually over. Hmmm, a problem here, eh? Oh, but wait! Not only is it going to be forever until it’s over, but IT’S also GOING TO BE FOREVER UNTIL IT ACTUALLY STARTS!
Yep. You, my friend, are entitled to a trial
You have a real dispute here, and you’ve paid your filing fee, and therefore the whole court system is available to you. Independent judge, competent, efficient staff, roomy, air-conditioned courtroom, the whole works. We’re going to put your name on the list for trial, first come, first served (meaning that the oldest case gets tried first). Well, now that we’ve got you on the list, when are you actually going to get access to that courtroom, in order to DO your trial? Fourteen months from now. Really. A year and two months from today. The judge is going to be hearing a trial today, and he does every day, and that trial was scheduled over a year ago. It takes that long to actually get to it, given the crush of business that the judges have to contend with. It’s a legitimate delay. In most jurisdictions, there aren’t enough judges and courtrooms to go around. So write to your state legislator, and tell him (or her) to please raise your taxes, and spend that money on more judges and courtrooms. After you do, they probably will. Until you do, they probably won’t.
So what about a LITTLE dispute, that could be resolved now?
Oh, and by the way, it really NEEDS to be resolved now. Isn’t there any way to get a little ‘face time’ with the judge, other than waiting until next year? What about next month? Or next week?
The judges have dealt with that, and have set aside one day (or, in smaller circuits, one half of one day) each week, for MOTION HEARINGS. These little mini-hearings are designed to resolve smaller disputes, on the assumption that a big trial isn’t necessary to resolve some disputes, and further, that some disputes literally can’t wait for a trial date to get resolved. Let me give you some rules that generally apply, then I’ll give you some examples of what gets resolved at a motion hearing.
Keep in mind these rules are deliberately restrictive: we’re weeding out only those cases where a trial probably wouldn’t be necessary (which is to say, waiting for a trial wouldn’t do any good, so why wait?).
- If the facts are not in dispute, but the facts can be agreed upon, and the facts are brief, and all we need is a judge’s decision, we can ask for a judge’s decision now as to those stipulated facts.
- If the law were one way, one party would win. If the law is the other way, the other party would win. We all know that. We don’t however, know which law applies in this fairly simple situation. We need a ruling, not as to what the facts are, but as to what law applies. If the judge could give us a ruling as to which law applies, the dispute would be resolved, because we can figure out who will win, after that.
- If testimony needs to be taken, if there is a reasonable dispute as to the facts, you’re outta here. You will wait until the court can provide you with some time to do a hearing, and then the court will, at that hearing, listen to everybody, be fair to everybody, and make up its mind. But not now.
Then the lawyers got creative, and this last one developed:
We asserted a right to relief, and they asserted a defense which might make you think that a hearing is required. BUT THEY ASSERTED A DEFENSE THAT ISN’T RECOGNIZED BY THE LAW. We want a ruling, now, that their defense isn’t valid, and THEREFORE, after their defense is stricken (crossed out) we are entitled to a ruling now. We really qualify under Rule #1, above, as soon as you strike out their defense. So listen, judge, on the question of whether you ought to strike out their defense, and THEN grant us our order.
And don’t forget the most important rule, from the judge’s point of view: YOU WILL BE BRIEF. Don’t take all day, because the judge won’t let you take all day. There are a lot of people waiting who ALSO want some time on motion day, with little problems, and ALL OF YOU are going to be brief, or we’ll never get through this. So be brief.
If you’ve read this far, you know that this is a long post. I’ll try to come back and put in some examples of each of the types of motions mentioned above. Watch for the changes. Meantime, our next post is on the ‘temporary hearing’, which is really a motion hearing. And now you know a little something about motion hearings.