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Thread: motion filing

  1. #1
    almost done is offline Member
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    motion filing

    What is the name of your state? NY


    Is there a rule or law that you have to advise opposing counsel prior to filing a motion?

    There have been a couple of motions filed in my case and most recently my attorney sent a letter to opposing counsel that we "may be filing a motion" ? as far as i know we are definitely filing one? is this letter intended to prod them along or do they have to be informed once first?
  2. #2
    LdiJ is offline Senior Member
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    Quote Originally Posted by almost done View Post
    What is the name of your state? NY


    Is there a rule or law that you have to advise opposing counsel prior to filing a motion?

    There have been a couple of motions filed in my case and most recently my attorney sent a letter to opposing counsel that we "may be filing a motion" ? as far as i know we are definitely filing one? is this letter intended to prod them along or do they have to be informed once first?
    No, there is no rule or law that you have to notify opposing counsel before filing a motion.

    Some attorneys do it out of "professional courtesy" (which I think is wrong) but generally when its done its done to let the opposing counsel know that you aren't backing off on a valid issue, and that if the opposing counsel doesn't bring their client "in line" that the issue is going in front of a judge.

    Therefore, in other words, it can be a "courtesy", it can be an effort to get the attorney to bring their client in line, or it can even be a really stupid "threat". It all depends on the attorney.
  3. #3
    almost done is offline Member
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    Quote Originally Posted by LdiJ View Post
    No, there is no rule or law that you have to notify opposing counsel before filing a motion.

    Some attorneys do it out of "professional courtesy" (which I think is wrong) but generally when its done its done to let the opposing counsel know that you aren't backing off on a valid issue, and that if the opposing counsel doesn't bring their client "in line" that the issue is going in front of a judge..
    That is pretty much what i thought it was but i also wasnt sure if it was something that was mandated too.
    Why do you believe that it is wrong to extend that courtesy? your opinion?



    Quote Originally Posted by LdiJ View Post
    or it can even be a really stupid "threat". It all depends on the attorney.
    Why do you think that it is stupid "threat". because it is a waste of time?


    Thank you for your answers.
  4. #4
    LdiJ is offline Senior Member
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    Quote Originally Posted by almost done View Post
    That is pretty much what i thought it was but i also wasnt sure if it was something that was mandated too.
    Why do you believe that it is wrong to extend that courtesy? your opinion?





    Why do you think that it is stupid "threat". because it is a waste of time?


    Thank you for your answers.
    I think its sometimes wrong to extend the courtesy because I think that sometimes too much "courtesy" goes on between attorneys, which often translates into extra costs for the clients, and sometimes even a bad "deal" for the client.

    Example: I know someone who filed for child support. She used an attorney instead of going through the CSE. The attorney charge her for 2k worth of "conferences" with the other attorney before the case even got in front of the judge. In addition, her attorney agreed with his attorney to credit dad with additional parenting time credits that the dad was not entitled to receive, and then railroaded mom into accepting the agreement.

    She later filed a grievance and the Bar made him refund the fees she paid him, but she was stuck with the bad child support order.

    As far as the "threats" are concerned. There are some attorneys (not many, but some) who will actually threaten things that they know won't or can't happen, even to other attorneys, as a form of intimidation.

    However, most attorneys are good and do their jobs properly. Its just like any other profession, there are always going to be a few bad apples.
  5. #5
    almost done is offline Member
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    that all makes sense to me. thank you
  6. #6
    Bali Hai is offline Senior Member
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    Quote Originally Posted by almost done View Post
    That is pretty much what i thought it was but i also wasnt sure if it was something that was mandated too.
    Why do you believe that it is wrong to extend that courtesy? your opinion?





    Why do you think that it is stupid "threat". because it is a waste of time?


    Thank you for your answers.
    No motion is a "stupid threat" filed by the wife's attorney in NYS. Especially if that attorney has the judge in their back pocket.
  7. #7
    SHORTY LONG is offline Senior Member
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    I had a case in the DC Circuit, and under the locale rules there, it was proper to notify opposing counsel that,
    I was filing a Motion for Summary Affirmance.
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  8. #8
    Ohiogal is offline Senior Member
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    Sometimes the local rules dictate that the opposition must be notified -- and in some cases, permission/approval obtained -- prior to filing. Other times it may be quicker to try to work something out with the opposing counsel rather than file something and wait two months to have it heard.
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  9. #9
    You Are Guilty is offline Senior Member
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    Quote Originally Posted by LdiJ View Post
    No, there is no rule or law that you have to notify opposing counsel before filing a motion.
    I'm sorry, but that is incorrect. The biggest example is a requirement that, if you intend to file a motion regarding discovery, you send a "good faith letter" beforehand to satisfy the requirements of a good faith affidavit ([url]http://www.nycourts.gov/rules/trialcourts/202.shtml#08[/url]) which, in theory, will help work out the issue and obviate the need for the motion, thus decreasing the court's workload. (Of course, that never actually happens).

    Other, less frequent examples: having a pre-ordered motion schedule which does not include the contemplated motion, an individual judge's part rule, or assignment to a specialized part in one of the NYC courts (i.e. 'Commercial Division'). While that last one doesn't apply to divorce cases, its entirely possible the first two can.

    However, as noted, the most common reason to send notice is to goad the other side into doing what you want.
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  10. #10
    LdiJ is offline Senior Member
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    Quote Originally Posted by You Are Guilty View Post
    I'm sorry, but that is incorrect. The biggest example is a requirement that, if you intend to file a motion regarding discovery, you send a "good faith letter" beforehand to satisfy the requirements of a good faith affidavit ([url]http://www.nycourts.gov/rules/trialcourts/202.shtml#08[/url]) which, in theory, will help work out the issue and obviate the need for the motion, thus decreasing the court's workload. (Of course, that never actually happens).

    Other, less frequent examples: having a pre-ordered motion schedule which does not include the contemplated motion, an individual judge's part rule, or assignment to a specialized part in one of the NYC courts (i.e. 'Commercial Division'). While that last one doesn't apply to divorce cases, its entirely possible the first two can.

    However, as noted, the most common reason to send notice is to goad the other side into doing what you want.
    I was being somewhat simplistic, based on my knowledge of what the case was actually about.

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