Once a case is filed and the other party answers the case becomes fully active and the parties will have occasion to ask the court for such things as: Dismissal of the Complaint; Enforcement of Discovery Demand; Summary Judgment and so forth.

Motions may be either oral or written and may be made in some courts informally or at trial. Most motions are pre-trial although there are post trial motions such as Motions for Remitter and so forth. Generally in Federal, and most state courts, a motion must be filed in writing in compliance with certain rules and time periods of notice to the other party and scheduling with the court. In many instances the motion will be decided on the papers. (See important points never to forget.)

Motion papers usually include the following:

1) Notice of Motion (nature of request, time and place to be heard)

2) Certificate of Service (upon the other party)

3) Affidavit or Certification as to the issues and facts

4) Form of the Order (for the judge to sign)

5) Exhibits as relate to the specific issues of the motion (if they exist)

6) Brief (Legal Brief as to the law with citations of authorities)

7) Other as the Court may require

FORM OF NOTICE OF MOTION (EXAMPLE):

(Caption) (Including Key Word Description of the Motion)

SIR(s) (Or Madam):

PLEASE TAKE NOTICE that upon the attached affidavit of JOHN X. DOE, defendant, and upon the case herein, Pro Se Defendant, will move this court by both oral and written arguments, at Superior Court of New Jersey in the Chancery Division (Family Part) in Union County Court House; located at 2 Broad Street; Elizabeth, NJ in the assigned room; on August 25, 1995, or such other time as may suit the court. This is for a motion TO STAY THE ORDER OF JULY 21, 1995 AND FOR A HEARING TO VACATE SAME because Defendant never received Notice of Motion and had no knowledge a motion by the Plaintiff was before the court. Additionally for AN ORDER TO INSURE THAT FUTURE MOTIONS BY PLAINTIFF ARE MADE KNOWN TO THIS DEFENDANT and to directly related matters.

TO: Mr. Ira Issey Tricky, Esquire

DILLY, DALLY, DOLITTLE AND DELAY

(Street Address -- Not PO Box)

City, State, Zip

Dated: July 31, 1995

_____________________

JOHN X DOE, Pro Se

FORM OF CERTIFICATION OF SERVICE :

(Caption)

I declare, under penalty of perjury, that I have caused to be served two copies of the attached materials consisting of: NOTICE OF MOTION TO STAY ORDER DATED JULY 21, 1955 AND FOR A HEARING WITH ORAL ARGUMENTS; AFFIDAVIT IN SUPPORT OF MOTION; FORM OF THE ORDER and EXHIBITS. I served them by certified mail No. P 000 111 444 and by first class mail on the date of this certification upon Ira Issey Tricky, Esquire; Attorney for JANE X. DOE.

TO: Ira Issey Tricky, Esquire

DILLY, DALLY, DOLITTLE AND DELAY

(Street Address -- Not PO Box)

City, State, Zip

Dated: July 31, 1995

________________________

JOHN X. DOE, Pro Se

By: Certified Mail No. P 000 111 444

(IF BY HAND BY A QUALIFIED PARTY):

By Alternative Personal Service:

Received by Hand: (name) (position) (date)

Description of Receiving Party: __________________________________________

Certification of Service By Messenger: __________________ Date: _______

AFFIDAVIT OR CERTIFICATION:

Unfortunately Some Courts Discriminate Against Pro Se Parties by Requiring an Affidavit while an Attorney May Use the Certification Form. Sometimes a busy working person will find the added time involved to find and go to a Notary for the Affidavit an added interference with his employment.

BASIC FORM OF AFFIDAVIT : (Certification is without notary block)

(Caption)

STATE OF NEW JERSEY :

: ss

COUNTY OF UNION :

I JOHN X. DOE, being of legal age make this affidavit (or certification) on my oath and says:

1. I have first hand knowledge of the within matter to make this affidavit (or certification), and respectfully request that the Court grant oral arguments (or decide the matter on the papers).

2. This matter arises out of a divorce action and divorce granted by the court and a Consent Order Fixing Custody filed on March 15, 1993.

3. I never received service or had any knowledge of a motion before the court and the Plaintiff saw me on more than seven (7) separate occasions in picking up the children and never mentioned a motion was pending. At no time did the post office inform me or try and deliver to me any certified mail and I question if Plaintiff can show actual proof of any delivery of motion papers.

4. I request the court to issue an order that henceforth failure by Plaintiff to properly notice me will be the subject of sanctions as the court may deem appropriate.

5. I have paid the $888 complained about as can be seen by a photocopy of canceled check number #333 dated June 10, 1995.

6. The issue of ____ is ...

7.

8. etc.

WHEREFORE I ask the Court to grant this motion for all the reasons upon which it knows such would be in the best interest of justice and equity.

I certify the statements I have made are true and that a copy of this motion has been sent to my adversary and that if any statement is untrue I may be punished.

________________________

JOHN X. DOE, Pro Se

Sworn and Subscribed to before me

this 31st day of July 1995.

_____________________________

(Notary)

(NOTE: If a Certification instead of an Affidavit then only the date and your signature)

Return to Beginning of this document. Go to Table of Contents.

FORM OF THE ORDER :

(Caption) (usually with the description: CIVIL ACTION ORDER)

THIS MATTER COMING BEFORE THE COURT on a motion by Pro Se Defendant, John X. Doe, with respect to an order for payment to Plaintiff, Jane X. Doe, and having heard both written and oral arguments;

IT IS ORDERED that the Order issued by this Court on July 15, 1995, be and is hereby vacated and rescinded; and,

IT IS FURTHER ORDERED that the Plaintiff, Jane X. Doe, must provide an acknowledgment of receipt of notice on any future motions; and,

IT IS FURTHER ORDERED THAT ....

and,

IT IS FURTHER ORDERED THAT __________________(always leave the judge room to write in something else he may want to include in the order);

and,

IT IS FURTHER ORDERED that in accordance with R. ____ a true copy of the within Order shall be served upon all counsel within ______ days of the date hereof.

Date: _______________

Signed: ________________________

(-- The Judges Signature -- )

GENERAL FORMAT OF THE BRIEF :

(Caption -- Except for an informal letter brief -- will generally have a more elaborate full page caption -- you will need to check with the court or the forms book in the court library)

Often large corporations and insurance company attorneys will try for an early knock out of a Pro Se by answering the complaint with simultaneous or nearly simultaneous heavy discovery demands or with a motion for dismissal that will include a well done and elaborate brief -- do not panic -- but do start on your answer immediately as it will take time. You will really need a fair amount of professional legal help and legal research -- but you can do it -- I have defeated such motions by some of the largest law firms.

Such briefs have the following in generally the following order: 1) A table of contents 2) Table of Authorities (Statutes, case law cites and etc.) 3) Procedural History of the Case (Legal or Court history of case) 4) Statement of Facts (the factual issues) 5) Arguments (Legal Arguments) Point I Point II . . . and so forth. 6) Conclusion . . . For all the foregoing reasons, The Travelers Insurance Co., The Travelers Indemnity CO., Edward H. Budd, CEO, and . . . respectfully request that Frederick's Third-Party Complaint and any and all other parties crossclaims asserted against the third-party defendants be dismissed.

Respectfully submitted,

SHANLEY & FISHER, P.C.

(Address & So forth)

Dated: _______ (Signed by attorney)

IMPORTANT POINTS TO NEVER FORGET:

NOTES:

1) Motions for dismissal and summary judgment usually fail -- especially early in a case because generally both court rules and case law support the proposition that: a) discovery has not yet run its time, b) the time is not yet ripe, c) there are genuine issues of facts in dispute for the trier of fact (the jury) at trial to determine and so forth.

2) If served with such a motion and brief, you should number and answer the Points by your adversary in the same order so the court can follow your counter arguments -- and then add additional point numbers and points in consecutive order for any new points in your favor not appropriately included in your counter to the movant's points. (The movant in a motion is whichever party brings the motion -- and upon whom the generally heavier burden to prove his position will be required for him to win the motion.) Pay attention to your adversary's points -- you must counter them point for point. Many times a motion for dismissal or summary judgment needs to win on only one point in order to win -- so make sure you have the right counter to each point made by movant.

3) DO NOT ASSUME that the Court looks at the file or your previous papers or those of your adversary -- the realty of the heavy case load in most courts is that you will be lucky if they carefully read what is supplied with the motion or opposition to the motion by either party. That MEANS make the motion and its papers as clear and concise as possible with inclusion of all exhibits and case law needed for the issues before the court in a particular motion. Early on I lost some motions because I assumed either the judge's law clerk or the judge read the file and prior motions and documents to see that I was right -- it rarely, if ever, will happen that way -- you need to provide a complete, ON POINT, package with your motion papers.

4) ITS NOT SUPPOSED TO HAPPEN, BUT a certain number of attorneys will play "cute" but technically within the rules against a Pro Se. Two common tactics are: 1) clever distortions in motions and statements to the Court such as half truths or 2) engaging a Pro Se in "friendly discussion" to pick-up some facts, position, or statement that may represent some technical or legal point they can use to defeat you. NEVER say, write or give something to the other side without clearing it with your attorney advisor [ALA -- Approved Legal Advisors (attorney) for members of the American Pro Se Association help our members for the special fee of only $1 per minute.]

5) ALWAYS bring proof of mailing and receipt of papers you sent to your adversary to motion oral arguments. The sad experience of many of our members is that some attorneys will go so far as to count on judges having doubts about a Pro Se party and may claim they never received the papers you served -- you need the proof with you at the motion oral arguments -- later is too late and too bad! (Its a sad commentary but some members of the bar will resort to this and other lies to the court in order to try and win)

6) NEVER lie or try to mislead the court -- you will almost certainly be caught -- and one way or another you will pay a very steep price. Most court personnel and judges have a low opinion of Pro Se litigants and assume the Pro Se will lie and these individuals are looking for you to make that mistake. Unfortunately there is a double standard and worse -- even a wall of denial by many judges and court personnel that attorneys engage in this and other unfair tactics against Pro Se parties.

7) BE PREPARED to have better case law cites that are clear cut -- in many instances you will need to have the much better legal points because a majority of judges may think they are fair to Pro Se parties but they have become conditioned to discount the legal research and points made by a Pro Se as contrasted to his attorney adversary. Sometimes nothing will change some judges perceptions -- but with real effort and good work most will see the light at some point.

Go to the Beginning of this Document.

Go to Notice of Motion (nature of request, time and place to be heard)

Go to Certificate of Service (upon the other party)

Go to Affidavit or Certification as to the issues and facts

Go to Form of the Order (for the judge to sign)

Go to Exhibits as relate to the specific issues of the motion (if they exist)

Go to Brief (Legal Brief as to the law with citations of authorities)

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