A motion is the legal vehicle, a writing and a filing with the court, by which one party “moves” the court for an order, decision or interim ruling after the case has been commenced and during the pendency of the litigation. Motions are not permitted as a way to commence an action. An action may only be commenced by the filing of a Complaint. A motion must be filed with the court and served on opposing party. The “moving papers” must state with sufficient clarity what exactly is being sought from the court by order and when/where the motion will be heard. Movants (the moving party) must also give sufficient time to the opposing party to respond before the hearing date. Said time is set by statute or court rules.
While rulings on motions are often interim, they can affect final disposition. For example, in a divorce action, a ruling on motion for temporary custody is often incorporated into the final judgment.
Either party can file any motion(s) they feel necessary to advance the action in their best interest. Motion practice (as it is called) is vast and almost anything can be sought by proper motion (e.g. an extension of time to answer a complaint, an adjournment, temporary child support, motion s to vacate, dismiss the action entirely…) While the only thing that cannot be sought by motion is the entry of a final judgment, I hasten to add, that rulings on motions will be considered by the court in making a final judgment.
A counselor can appear and be heard in many motions without the party they are representing present. In fact many motions are procedural and do not require the presence of either parties.
There are also sanctions for frivolous motion practice. This is done to discourage attorneys from indulging in harassment of the opposing party by excessive motions practice. Moreover, motion practice can be very expensive. If, as in most instances you are paying your counselor by the hour, a motion could cost anywhere between $2,000 and $10,000 or more, depending on the circumstances. If you feel your attorney is engaging in unnecessary motion practice (to run up your bill) speak to them directly. However, since an affidavit by the moving party in support of the motion is required in every instance, where the signature of the affiant is required, you will have ample notice that your attorney is intending to file a motion.
Never hesitate to ask your counselor why a particular motion is being filed and how exactly will it advance your position. By the same token, do not hesitate to ask that a motion be filed to advance your case and your position therein.