It is possible that you could argue several different motions at court throughout the course of your case. Primarily these will be motions to dismiss, motions to compel, and motions for summary judgment, but there could be others as well, as you approach trial. The motions have different purposes and different issues of law, but they will follow a general pattern. It will help you to know how to do it.
Filing the Motion or Response
Start with filing a motion. Let’s say you file a motion to dismiss. The other side gets to respond, and you get to reply to the response. The rules of civil procedure will provide you specific time limits as to how much time each party has to file its documents. Without permission, there should not be any further response beyond the Reply. But if you find something out that’s important, you should ask for permission to submit an additional brief to tell the court, and you can never be sure the other side won’t show up at argument with something they haven’t shown you.
That means that you cannot stop preparing to argue the case after you have filed or received your latest response. You have to figure out, and be prepared to deal with, the best arguments that can be made against your position.
In most jurisdictions, the work is not finished with the filing of motions and response. The motion must be “called” and argued. That is, someone has to set the motion for a specific time when the court will hear what both sides have to say and render a judgment. (Courts often have what they call “Motion Dockets,” which are days or times set aside specifically for arguing motions. In jurisdictions where they expect motions to be argued, the court will ordinarily not rule on a motion until it has actually been set and argued, regardless of how clear the law may be.
In federal courts, arguing on motions is rare, but in all the state courts I’ve ever been in, motions must be argued almost every time.
It isn’t always obvious which side will call the motion. Either side could do it after the briefs have been filed. On a motion to dismiss, for example, while it is sitting there, you do not normally have to answer the petition and the case just sits. So you won’t usually want to “call” your motion to dismiss. The other side probably will. If they don’t, the court will probably dismiss their case for “failure to prosecute.”
On the other motions you’ll also go through the Filing, Response, and Reply, but the person bringing the motion will probably need to “call up” the motion. That means specifically ask the court to hear and decide the motion. Remember that you give the other side notice of everything you do. And this includes the calling up for hearing. You go into the clerk’s office and choose a date you would like to argue the motion—in some jurisdictions they may set the date and time of the argument for you automatically.
After choosing the date, you write a memo to the court “calling up” your motion for hearing on that date and time. And you give a copy of that notice to the other side. Check your local rules to see how much advance notice you have to give them. It usually isn’t much. If they’ve been cooperative with you, this might be a good time to cooperate back about dates. And if they haven’t…
So you set the motion for hearing and tell the other side. Then you prepare to argue the motion.
The trick to arguing motions is to prepare as much as you can. The debt collector knows that, and they’re also lazy – so you can expect their memorandum opposing your motion to be pretty basic. Don’t worry about that. Prepare the argument from what you know and your own research. And then, if it’s a motion where you have sent a letter to try to work things out, every time they say something during your argument that wasn’t in their letter, you just make a point of mentioning the fact to the judge.
“Your honor I feel sandbagged here. I sent them a letter to try to work this out…”
The person bringing the motion usually goes first. Don’t let the debt collector speak for you—lawyers will often try that, and it could seem comfortable to let the other side lay out the facts, but part of what you’re doing here is getting to know the judge and let him or her know who you are. Plus, you should not trust the other side to state any part of the case in a way that will be to your advantage. Speak for yourself.
Make notes to go in with you—notes about what you’re going to say, and then make sure you say everything on those notes that needs to be said.
Lawyers and judges talk normally (use plain English) when they’re arguing about discovery or other motions. Don’t dress up your language or try to make it fancy or “legal.” Just speak your piece. Speak clearly, and if there’s a microphone, speak into it. Don’t yell, get abusive, or lose your cool. Stay cool. You’re winning just by being there. You never want to get mad or emotional if you can help it.
You’re not going to win everything. You may not win much. And let’s just say even that it’s possible you won’t win anything on your motion. Don’t get psyched out. You’ll still be fine. You’re winning by gaining experience in the case and the law. And you are gaining by requiring the debt collection lawyer to work on the case.
And you’re even winning by requiring the judge to work on the case. Most of them don’t really like these cases, and they aren’t above leaning on the debt collection lawyer to get them to let you go if it looks like the case is not financially worth it. That said, do not flaunt the fact (if it’s true) that you cannot afford to pay a judgment – you should only admit this with great reluctance. If you seem too willing to let them know this, the other side may not believe you, and the judge will be inclined to think you are not taking the case seriously.
Keep your cool and fight for every single thing. Now that you’re there, don’t give up on anything until the judge makes a ruling. And then move on to the next one. One of the great challenges is to keep from letting either disappointment or excitement about one ruling, from affecting you as you argue the others. As much as possible, though, make sure each question is a separate question, not affected by what went before.
Fight for everything just as much. You can be reasonable and make compromises, but remember that each thing stands on its own. You don’t agree not to get information about the bill of sale for the debt (proof the debt collector bought the debt from someone with a right to sell it) because they’re giving you something about their procedures to keep from billing someone who doesn’t owe. You have to have stuff on every aspect of the case. You can’t trade one for the other.
Take Notes While There
Remember to take notes. In many jurisdictions, the parties create the order for the judge to sign, and you want to remember what was said. I can tell you from experience that this is often impossible without notes, and the other side may try to take advantage of the confusion and write an order that shades or limits the ruling of the court.
Don’t admit anything in court. Well, just remember that judges remember what you said, so if you say “I owe the money,” the court could take that as a case-ending admission and end the case right there. Make sure everything you say to the judge is basically what you’re saying everywhere else. Judges have a tendency to try to look at you and get you to give it up. Don’t. They don’t know anything about your case, and if they know anything about the debt collection business, they know these cases are often suing people who don’t owe. Or for more than they owe.
Don’t give away the shop.
- If the other side makes an argument in court that was not in its brief and it seems like a serious point, you can ask for time to research and respond. Or you can try objecting that they waived it by not making it in the brief.
- Remember that lawyers are trained to be persuasive. I’ve heard some pretty persuasive arguments from the other side just before the judge ruled in my favor. So make your best argument and believe in it. Debt collectors will say just about anything sometimes, so don’t believe them. Just fight.
- Motions for summary judgment are basically just like motions to dismiss at the argument stage. But here you may argue a little more about the facts of the case. And you may need to make objections. So before a motion for summary judgment be sure to read up on your objections and watch the video on that.