What is a motion?

What is a motion?

There are several steps in the litigation process, which is initiated by a lawsuit.

First, there are pleadings whereby both sides to a dispute set out their versions of events in writing to the court.

Second, there is discovery, which involves the exchange of information between parties. This is done by way of documents in affidavits and oral evidence in examinations. Each side gets a chance to tell their story and back it up with facts.

Third, there is mediation, which is mandatory in Ottawa. This stage provides the parties with an opportunity to settle the lawsuit with the help of a mediator. It also gives insight into the other side's position. If the mediation is unsuccessful, the fourth step is a pre-trial conference, whereby the parties are given another opportunity to try to settle the lawsuit before a judge.

If the pre-trial conference is unsuccessful, the final step is trial. The vast majority of cases settle outside of court at one of the stages before trial and settlement is a possibility throughout the litigation process. Most lawsuits involve the resolution of several issues and not just a single one that arise out of a conflict. A motion is an intermediary step in which the parties ask to resolve one or a few of the issues in the case that they cannot agree on. Motions are important in helping move the litigation forward. However, they should be used strategically and sparingly, if possible, because they cost a lot of the court's time and money.

Clients should be aware that motions have cost consequences meaning that the losing party is likely to pay for the winning party's time. However, when used properly by lawyers, motions can be a very effective litigation tool as they shed light on the court's position in the matter before it, help resolve some of the issues and also compensate the winner for their efforts.

Lawyers should clearly communicate the purpose of a motion and seek instructions from clients should the need for one arise. Clients and lawyers should both be well informed when deciding to bring a motion.