What&#39;s the difference a petition, motion, suit &amp; complaint? I've seen all of these terms being thrown around to describe overlapping concepts. I believe a suit asks the court for a monetary judgment whereas a &quot;petition&quot; just asks the court for an order for action. Is this correct? What's the difference between the other ones? Is there a specific type of form / process that needs to be used/followed to file each type of action in court?
In Civil Cases Petitions, Complaints, And Suits Suits The term &quot;suit&quot; is uncommon and verges on colloquial. It is a shortened version of the term &quot;lawsuit&quot; a.k.a. civl action a.k.a. court case. The term &quot;lawsuit&quot; refers to the entire case that is initiated by a Petition or a Complaint, rather than just a single document. The term &quot;lawsuit&quot; excludes court cases that are criminal and brought in the name of &quot;The People.&quot; When one &quot;files a lawsuit&quot; or &quot;files suit&quot; one initiates a court case by filing a Complaint or a Petition with a court.* In some circumstances, a lawsuit is commenced by delivering the Petition or Complaint and other documents to another party to the case first, an action called &quot;service of process&quot; and then filing it with the court, while in most cases, filing the Petition or Complaint with the court comes first and service of process comes second. Petitions v. Complaints A Petition and a Complaint are each documents used to initiate a civil action (sometimes called a lawsuit or a court case) seeking some kind of relief from a court. For all practical purposes, the differences between Complaints and Petitions is purely stylistic and a matter of custom and history. Normally there is a filing fee for filing a Petition or Complaint. When a court case is commenced with a Complaint, the document that someone who is sued must file is called an &quot;Answer&quot;. When a court cases is commenced with a Petition, the document that someone who is a party to the case must file to dispute that the relief requested in the Petition be granted is called a &quot;Response&quot; or an &quot;Objection&quot;. When Is Complaint v. Petition Terminology Used Roughly speaking, the initial document is almost always called (in U.S. practice at least) a &quot;Complaint&quot; in contexts where the primary relief sought would have been for causes of action brought in courts of law in the English common law system before the merger of law courts and equity courts a.k.a. courts of chancery. See generally, this Law.SE answer. For example, the document initiating a lawsuit (a.k.a. civil action) for breach of contract, or for money damages in tort (e.g. a personal injury lawsuit), are almost always described as a &quot;Complaint.&quot; The term &quot;Petition&quot; is most often used to describe an initial document seeking relief from a court in particular kinds of cases associated with historical equity relief and often don't seek money damages or don't have a clear winner or loser. Petitions are used, for example, to initiate a probate case, a guardianship or conservatorship case, a bankruptcy case, a divorce case, a request to change your name, or a case seeking to incorporate a municipality or special district. It is also customary to call an initial document seeking relief from a court a &quot;Petition&quot; when the relief sought is a &quot;Writ&quot;. So, for example, one files a Petition for Writ of Certiorari, a Petition for a Writ of Habeas Corpus, and a Petition for a Writ of Mandamus. A &quot;Writ&quot; is a court order directed to someone who is not a party to a lawsuit directing that person (usually, but not always, a government official) to do something. Notwithstanding this general rule, however, in cases seeking money damages, possession of real estate (i.e. evictions), and possession of specific items of personal property (a.k.a. &quot;replevin&quot; actions or &quot;claim and delivery&quot; actions), cases are generally initiated with a document entitled a &quot;Complaint&quot; even though some of the post-judgment relief awarded will consist of writs (e.g. a writ of garnishment or a writ of execution in a case seeking a money judgment, a writ of restitution in a case seeking possession of real property, and writs of attachment and writs of assistance in cases seeking possession of personal property). In some kinds of cases, such as lawsuits to quiet title to real property, or lawsuits alleging breaches of fiduciary duty, the initiating document is sometimes called a &quot;Complaint&quot; and sometimes called a &quot;Petition&quot; in an inconsistent manner. The Federal Rules of Civil Procedure calls the document used to initiate a civil action a &quot;Complaint&quot; and many state rules of civil procedure follow the lead of the Federal Rules of Civil Procedure. In those jurisdictions, the term &quot;Petition&quot; is often used to refer to court cases that aren't governed by the ordinary rules of civil procedure. But this distinction isn't followed strictly. Some kinds of Petitions and Motions that initiate civil actions are still governed in whole or in part by the ordinary Rules of Civil Procedure. Application v. Petition Also, sometimes the word &quot;Application&quot; is used in lieu of the word &quot;Petition&quot;, in part, because it is seen by reformers as a more &quot;plain English&quot; and less technical word than &quot;Petition&quot;. The term &quot;Application&quot; rather than &quot;Petition&quot; is also sometimes used, in part, to avoid confusion with the more general non-legal sense of the word &quot;Petition&quot; to mean an request made outside the legal system to a public official or other individual requesting that they do something, or a document signed by numerous people seeking to allow a candidate to run for office or allowing a citizen's initiative to be placed on the ballot in an election, for example. Motions The General Rule A &quot;Motion&quot; predominantly refers to an oral request or written request made to a court requesting that the court do something during the course of a civil action a.k.a. lawsuit a.k.a. court case after the case was initiated with a Complaint or a Petition. Motions don't necessarily have to be filed by parties to the case, even though motions are usually filed by parties to cases. For example, a non-party to a case could file a &quot;Motion to Intervene&quot; to be made a party to the case, or could file a &quot;Motion to Quash&quot; or a &quot;Motion for Protective Order&quot; to seek to limited the scope of, or invalidate, a subpoena served upon a non-party. Motion are filed, for example, seeking to add a party, to dismiss a case, to amend a document previously filed in the case, for an extension of time to do something, to exclude evidence at an upcoming trial or hearing, to convert a case from a jury trial case to a non-jury trial case, to change a trial date, or any manner of other things that require court action. Requests for post-judgment relief in an existing case and post-judgment litigation of custody and child support matters in divorce cases are also called Motions. A court filing that doesn't ask a court to do something is often called a &quot;notice&quot; or &quot;status report&quot; or &quot;return&quot; (a &quot;return&quot; is a report to the court that something that should have happened in a court supervised process actually happened). Other terms are used as well. Normally, there is not a filing fee for filing a Motion in an existing case. Motions That Start Court Cases But because the law is not entirely consistent in its terminology, the term &quot;Motion&quot; is in rare instances used to refer to a document used instead to initiate a new court case concerning a very narrow special proceeding in a court. For example, in Colorado, where I practice, some of the court cases that are initiated by a Motion include: A Motion to Compel or Stay an Arbitration proceeding. A Motion to Confirm, Vacate, or Modify an Arbitration Award. A Motion to Compel a legal entity to turn over its records to one of its owners. A Motion to authorize an otherwise public trustee foreclosure of deed of trust for real property to go forward. A Motion to have a money judgment entered in another state recognized in the state where the Motion is filed. The basic notion is that in the kind of court cases initiated by a Motion rather than a Petition or a Complaint, the intent is that the entire court case should involve a procedural process similar to the process of resolving a single isolated motion within a larger court case, as opposed to the full legal process involved in an entire court case initiated by a Complaint or a Petition. Another term used to initiate a court case, often a limited special proceeding without involving the procedural incidents of a full fledged civil lawsuit is an &quot;application.&quot; Normally there is a filing fee for filing a Motion that initiates a new court case. In Criminal Cases Criminal Cases Are Not Lawsuits The term &quot;suit&quot; or &quot;lawsuit&quot; is normally reserved for civil cases and is not used to refer to criminal cases brought in the name of &quot;The People&quot;. Often a criminal case brought in the name of &quot;The People&quot; is called a &quot;Prosecution&quot;. Motions The term &quot;Motion&quot; is used the same way in criminal cases as it is in civil cases. As in civil cases, the term Motions is used for post-verdict fillings requesting relief from a court in existing criminal cases, such as a Motion to Seal a record in an existing criminal case, or a Motion to set aside a verdict after it is entered. Also, as in civil cases, there are some criminal cases that can be initiated via a &quot;Motion&quot; which are generally narrow special proceedings intended to be adjudicated with the procedural trappings of a motion filed in another case rather than the procedural trappings associated with a full fledged criminal case. Sometimes these filings to initiate new special proceedings in criminal cases are called &quot;applications&quot; rather than &quot;motions&quot;. For example, a request to a court to issue a criminal search warrant would often be called a &quot;Motion for Issuance Of A Search Warrant&quot; or an &quot;Application For A Search Warrant.&quot; Petitions In criminal practice, the term &quot;Petition&quot; is normally reserved for an application for a Writ, such as a Petition for a Writ of Certiorari, or a Petition for a Writ of Mandamus. Complaints v. Indictments In Criminal Cases Criminal law practice uses the term &quot;Complaint&quot; differently than in civil practice, however. In criminal law practice, the key distinction is between a &quot;Complaint&quot; which is a document commencing a criminal prosecution against a criminal defendant filed by a prosecutor (or where the law authorizes it, by a non-lawyer such as a police officer or crime victim), and an &quot;Indictment&quot; which is a document commencing a criminal prosecution against a criminal defendant issued by a grand jury. A document initiating a criminal prosecution without using a grand jury is also sometimes called an &quot;information&quot; or a &quot;complaint and information&quot;. (N.B. the State of Colorado is misclassified in the map above and does not exclusively use grand jury indictments to commence felony cases. It should be blue and not gray in the map above.) Serious crimes prosecuted in federal courts, and in some (mostly Eastern U.S.) states have to be commenced with an indictment rather than a complaint. In most states (mostly in the Western U.S.), however, a prosecutor can initiate almost any kind of criminal case with a Complaint, and criminal cases initiated by grand jury indictments are the rare exception reserved mostly for organized crime cases, cases involving politicians or with political implications, and cases against law enforcement officers. Generally speaking, in criminal cases commenced by an indictment, there is no right to a preliminary hearing to determine if the criminal charges are supported by probably cause before a judge, while there is generally a right to a preliminary hearing for that purpose before a judge in most serious criminal cases commenced with a criminal complaint.
The exact form used can vary based on the court. At the federal level, the Administrative Office for the US Courts has a standardized form, although I don’t know that district courts have to use it. State courts obviously wouldn’t be expected to use the federal form, and I’m having a harder time turning up a blank state warrant form. The standard elements are in the federal form, though. A search warrant will have a header identifying it as a search warrant and will have something identifying the court that issued it. It will be signed by some sort of judge. The body of the warrant will be written as a command to the police to do a search, telling them where to search and what to look for. There will generally be some standard language about what to do with the property once it’s seized.
Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) &ndash; those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) &ndash; in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong &ndash; especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform &ndash; the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook!
This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer.
In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial.
Venue The location where you file the claim is the court that will hear it unless: you both agree the judge orders a different venue based on submissions from the parties (unlikely in a small claim) Costs Costs awards in small claims are rare and generally do not extend to the legal fees and if they do, the amount is capped. Costs for reasonable expenses of witnesses are slightly more common. In general, costs are limited to what is reasonable - to get the costs of travel and accommodation for the Liverpool solicitor, the party would have to argue that there was no available equivalent representation available locally. This might be arguable if you need a QC expert in say, international maritime law, it seems unlikely for a small claims matter. Personal Comment Don't go to court for £100 - settle the damn thing or walk away. In the time and worry you spend on it you could earn that sum five times over.
It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action.
Someone has pulled a sample motion of this type off of PACER (the public access Internet portal to civil filings in federal court). The example is more formal and structured than a lot of state court motion practice would be, however (e.g. few state court's require or encourage motions with a table of contents and a table of authorities). This example is 36 pages long, and many states don't even allow motions to run for more than 10-15 pages without leave of the court to do so in advance. There is a New Jersey federal court example here which is also on the formal and fussy side (although, in part, because the motion isn't just an arbitration motion and is also raising several additional unrelated issues which if omitted would cut it in half). See also one here. Another example, from a California state court, is closer to the mark for a typical state court filing. A court that handles residential landlord-tenant matters is probably even more &quot;casual&quot; and probably expects motions to get to the point more quickly. The core content is probably solid, although it would have to be customized to reference the state law statutory and procedural rules rather than the federal rules of civil procedure, and to analyze and set forth the facts of your case rather than those of some random person whose pleading is linked. This would also have to be adopted to state court practice standard, which typically uses different formatting for captions, signature blocks, whether or not line numbering is required, etc., and is often subject to other requirements. Some require that a certificate of service be filed as a separate document, while others routinely incorporate it in the main document. Many state courts require that a proposed order be submitted with a motion as a matter of state or local court rules, a few states require a cover sheet to be filed with motions, many states require you to confer with the other side in the case and to recite their position opposing or supporting the motion, or something in between, before filing it, and some courts require you to notify them once the deadline for a response has passed, regarding whether an opposition has been filed to the motion's request for relief or not. Similarly, some states courts require that motions be &quot;verified&quot; (i.e. have their allegations confirmed under oath) or supported by an affidavit setting forth the factual matters alleged in them. New York State structures a lot of motions as &quot;orders to show cause&quot; in which the court preliminarily reviews the relief requested and issues an order telling the other side that it will do something if they don't file an objection showing good cause for the court not to rule in that way by a given day, which must be formally delivered (i.e. &quot;served&quot;) upon the other side by a deadline. I don't know if New Jersey local motion practice is similar. Many court systems also charge a &quot;new case&quot; filing fee for motions to compel arbitration that does not apply to other kinds of motions. Ideally, you'd want to review some motions (about pretty much anything) to get a feel for how this is usually done in New Jersey.