Process[edit]

In the United States, as a general rule, courts do not have self-executing powers. In other words, in order for the court to rule on a contested issue in a case before it, one of the parties or a third party must raise an appropriate motion asking for a particular order. Some motions may be made in the form of an oral request in open court, which is then either summarily granted or denied orally by the court. This is still common with motions made during trial.


Today, however, most motions (especially on important or dispositive issues that could decide the entire case) are decided after oral argument preceded by the filing and service of legal papers. That is, the movant is usually required to serve advance written notice along with a written legal argument and a supporting factual foundation to explain why the movant is entitled to the relief requested. The legal argument usually comes in the form of a memorandum of points and authorities, while the evidence of the facts supporting the legal argument is normally supplied in the form of affidavits or declarations under penalty of perjury (which may in turn authenticate attached documentary exhibits).


A few U.S. states have a tradition in which the legal argument comes in the form of an affidavit from the attorney, speaking personally as himself on behalf of their client. In contrast, in most U.S. states, the memorandum is written impersonally, or as if the client were speaking directly to the court, and the attorney reserves declarations of their own personal knowledge to a separate affidavit or declaration (which are then cited to in the memorandum). One U.S. state, Missouri, uses the unique term "suggestions" for the memorandum of points and authorities.


Either way, the nonmovant usually has the opportunity to file and serve papers opposing the motion. In addition, most jurisdictions allow for time for the movant to file reply papers rebutting the arguments made in the opposition.


Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete. Some courts issue tentative rulings before the hearing (after which the losing party may demand oral argument) while others do not. Depending upon the type of motion and the jurisdiction, the court may simply issue an oral decision from the bench (possibly accompanied by a request to the winner to draft an order for the judicial officer's signature reducing the salient points to writing), take the matter under submission and draft a lengthy written decision and order, direct the clerk to record the decision in summary form in the minutes of the court (that is, a "minute order" which might record only the disposition of the motion and not the court's reasons), or simply fill out a standard court form with check boxes for different outcomes. The court may serve all parties directly with its decision or may serve only the winner and order the winner to serve everyone else in the case.