Boring Details

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The Mystery of Motion Day – Kentucky Practice

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Occasionally judges and courts take action without being asked to do so, and there are several specific instances when law and practice require a court to act ‘on its own motion’. However, in the normal course of civil litigation, the litigants and their lawyers have the duty to move a case through its various stages to completion. Quite a bit of activity occurs outside the court house through communication, cooperation, negotiation and agreement between the lawyers representing the various parties. But, when disagreements arise or when the spirit of professional courtesy is lacking, the parties petition the court to make a decision.

In Kentucky practice, a litigant’s request to the court for permission, decision or compulsion is generally called a ‘motion’. There are dozens upon dozens of different types of motions that can be submitted to a court. Motions can be made before trial in writing and motions may be made orally in open court, on the record, during the course of trials and hearings. The more serious types of pre-trial motions;  such as motions to dismiss a case, motions for judgment on the pleadings and motions for summary judgment; are  assumed to be contested. For these types of motions the applicable rules of procedure and practice generally provide for each party to prepare written briefs with time to answer and further time to respond to the answer before the matter is submitted to the court for a ruling.

The lesser motions that come before a court are handled more routinely, while allowing for another party to fight the motion if doing so is in his or her interest. In Kentucky practice, these more routine motions are automatically docketed, or put upon a court’s schedule, for the next upcoming Motion Day.

Kentucky Rules of Civil Procedure (KRCP) Rule 78 – Motions Days; Submission of Motions – provides:

“(1) Each circuit and district court shall establish by rule regular motion days as required by statute, and a copy of the rules shall be certified to the Supreme Court as provided in SCR 1.040(3)(a).
“(2) To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.”

Kentucky has fifty-seven circuit court judicial districts and sixty district court judicial districts. Each of these one hundred seventeen judicial districts  adopt their own respective local rules of procedure on a wide variety of matters. Specifically, pursuant to  KRCP Rule 78, supra, there are one hundred seventeen local variations on Motion Day practice. I have yet to find the individual who has read and compared each of these various local Motion Day rules.

From the several set of local  rules I have examined, Motion Day practice appears to be fairly consistent across the Commonwealth. Generally, a set time on the same day every week is designated as ‘motion hour’ and the motions that were filed and served before the cut-off the prior week are called one by one in open court. If the party who made the motion is in the courtroom when the case is called, the judge considers the motion and either:

  • Grants the motion;
  • Denies the motion;
  • Takes the motion under advisement;
  • Sets the motion for a more complete hearing, or;
  • Punts the motion to the next motion day.

There are many ways the parties or attorneys can avoid the necessity of appearing in person in court on motion day. The non-moving party can simply agree to the motion without objection, for example. Or, the parties might agree that the motion be submitted to the court for decision upon written briefs and stipulated facts. The system works better with civil communication and cooperation among the litigants and the court. The main proviso is that all communications to the court must be in writing with copies served upon each of the other parties, or in open court and on the record.

Court, after all, is a very formal arena.

Remember to consult your local rules of practice. Kentucky Local Rules of Court collection

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Written by Tom Fox

February 23, 2014 at 7:58 pm

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