Legal Definitions - speaking motion

A speaking motion is a request made to a court that relies on, or "speaks to," facts or evidence not contained within the initial formal documents filed in a lawsuit (like the complaint or answer). Instead of simply arguing a point of law based on the pleadings alone, a speaking motion requires the court to consider external materials such as affidavits, depositions, contracts, emails, or other documents to make a decision.

Here are some examples to illustrate this concept:

• Example 1: Motion to Dismiss with an External Contract

  Imagine a plaintiff sues a defendant for breach of contract, alleging that the defendant failed to deliver goods as promised. The plaintiff's complaint outlines the basic agreement. The defendant, however, files a motion to dismiss the case, attaching a copy of the actual signed contract. This contract contains a clause stating that all disputes must be resolved through arbitration, not litigation. The defendant argues that because of this arbitration clause, the court lacks jurisdiction to hear the case.

  How this illustrates a speaking motion: The defendant's motion is a "speaking motion" because it introduces a new fact—the arbitration clause within the full contract—that was not fully detailed or presented in the plaintiff's initial complaint. The court must "speak to" or consider this external document to decide whether to dismiss the case or compel arbitration.

• Example 2: Motion for Summary Judgment with Witness Affidavits

  Consider a lawsuit where a pedestrian sues a driver for negligence after being hit by a car. The pedestrian's complaint alleges the driver was speeding. The driver then files a motion for summary judgment, arguing there's no genuine dispute of material fact and they should win without a trial. To support this motion, the driver includes affidavits from two independent witnesses who state they saw the pedestrian suddenly dart into the street against a "Don't Walk" signal, and that the driver was traveling at or below the speed limit.

  How this illustrates a speaking motion: This is a speaking motion because the driver's request for summary judgment relies on new factual evidence—the witness affidavits—that were not part of the initial complaint or answer. The court must "speak to" these external statements to determine if there's enough evidence to warrant a trial or if the case can be decided immediately.

• Example 3: Motion to Quash a Subpoena Based on Privilege

  A lawyer receives a subpoena demanding that they produce confidential communications with their client. The lawyer files a motion to quash (cancel) the subpoena, arguing that the requested information is protected by attorney-client privilege. To support this, the lawyer submits a sworn declaration (an affidavit) explaining the nature of the communications, the relationship with the client, and why the privilege applies, without revealing the privileged content itself.

  How this illustrates a speaking motion: This motion is "speaking" because the lawyer is not just arguing a legal principle (attorney-client privilege) in the abstract. They are introducing new facts through their declaration about the specific context and nature of the communications to demonstrate why the privilege applies, requiring the court to consider information beyond the mere existence of the subpoena.