Drafting Basic Answers and Motions

This article covers the basic nuts and bolts of drafting answers and motions. For more detailed instructions on drafting and courtroom procedure get a copy of Jurisdictionary by Fredrick Graves J.D. Retired attorney, Dr. Graves has put together the best prose help package ever devised. Shy of stuffing a lawyer into a can Jurisdictionary is the best weapon in a pro se arsenal and I highly recommend getting. I found it to be a great help when I started drafting my own motions, and going to court as a pro se litigant.

So one day your door-bell rings and when you open it there is someone in uniform standing there with some paperwork in his hand and he has a duty to give (serve) you the documents. When you read the papers you realize that the bank has foreclosed on your loan and not they are trying to evict you from your home. You are overcome with a sinking feeling that this is it, game over. You get panicked, and ask yourself the question, “now what?” Do I move or do I stand my ground and fight?

Most would pack up and leave but not you. You know something is wrong because the bank promised you that they would work this out with you and now this, so you decided to fight. For the purpose of illustration in this article I am going to use the lower courts because that is the most common venue a homeowner in foreclosure finds themselves. Please note that the formats spoken of in this article are general as some states have different ways they want to see legal documents. Also know that formats change from state venues to the federal venue. For example in some federal jurisdictions it is required that all paragraphs and lines be numbered.

The best thing about being a pro se, or pro per litigant (person filing or appearing without counsel) is that pro pleadings are to be construed liberally. See Haines v. Kerner, 404 U.S. 519-20, (1972), and the court must read the spirit of the document without allowing form or format to prejudice the courts opinion. “A pro se litigant should be given a reasonable opportunity to remedy defects in his [or her] pleadings if the factual allegations are close to stating a claim for relief.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The paperwork a homeowner just got served with is notice that something (petition for forcible detainer) is filed with the court, and it is also an offer to come to court and tell the homeowner’s side of the story, but there is much more to it than just simply showing up to court and telling the judge that the banks are a bunch of crooks and that you have been defrauded. If a homeowner intends to challenge a forcible detainer he must file an answer with the court on paper, but what qualifies as an “answer”?

“Above numbered and styled cause”, let’s talk about that. The ‘numbered cause’ refers to the cause number, or case number, J1-CV-14-123456. The document “style” refers to the parties involved and the court in which a suit would be filed. An example of a document style looks somewhat like this.

                                                 CAUSE NO. J1-CV-14-123456

Big Powerful Nasty Bank N.A.                   §         THE JUSTICE COURT OF
(Plaintiff)                                                           §
.                                                                             §         WHATEVER COUNTY,
vs.                                                                         §
.                                                                             §         STATE OF INSANITY
John Doe, and Jane Doe, et al                   §
(Defendant)                                                     §         PRECINCT 1

In other words, the document is “styled” Big Powerful Nasty Bank N.A. vs. John Doe and Jane Doe in; THE JUSTICE COURT OF WHATEVER COUNTY, NAME YOUR STATE PRECINCT 1; and it is numbered J1-CV-14-123456.

Now that we understand what the document style is let’s discuss the body of the document. Underneath the document style you should title your document, in this example let’s title the document “DEFENDANT’S ORIGINAL ANSWER”. Though there is no governing rule in the lower courts that I am currently aware of that mandates that a document title must be in all caps, bold, and underlined it does tend to make your document better structured. I have studied many lawsuits in form, format, and content and I have noticed that a well written document will have the document title and any other major titled section such as separate causes of action in all caps, bold, underlined such as the example above and positioned in the center of the page. Any subsections under a title will usually be formatted with first letter capitalization, bold, underlined such as “General Denial” and positioned to the left or center of the page.

In motions and pleadings, all of the lines; in all of the paragraphs; under the original title line beginning with the title line are usually double spaced until one reaches the signature line at the end. I have drafted my motions and pleadings at 1.5 space and I have never had anyone, attorney or judge complain about 1.5 spacing.

In many cases an answer can be a rather lengthy response to the Plaintiff’s allegations but it doesn’t have to be. An answer can be as short as a general denial, that is to say “The Defendant in the above numbered and styled cause generally denies all of the Plaintiff’s allegations.” That’s it. You have answered, but answering with a general denial alone is not enough to give the court reason to stop the plaintiff from getting his way.

Some jurisdictions require that all pages and paragraphs to be numbered while other jurisdictions have no such requirements. See your local rules of civil procedure, or rules of court procedure for more details. Numbered pages and paragraphs allow a point of reference in all court documents. A litigant can say your Honor, on page 3; paragraph 23 of the Plaintiff’s petition, the Plaintiff states… This saves time in court so that you don’t have to count the paragraphs. The court will be able to go right to the part of a motion you would like to discuss. Not all jurisdictions require numbered paragraphs, but it is in the interest of “judicial economy” and always a good idea to number paragraphs and it will not count against you if you do.

The first paragraph is usually introductory and is normally not numbered. The introduction appears directly under the document title and usually begins with the words, “COMES NOW” in all caps. An example of an introductory paragraph would be, ‘NOW COMES the Defendants in the above numbered and styled cause and petitions this Honorable Court to dismiss the Plaintiff’s Original Petition for Forcible Detainer and respectfully shows the court as follows.’ Now that the Defendant has introduced himself and told the court what he wants from the court he can get on with his issues and show the court why it should dismiss the plaintiff’s petition. From here the paragraphs should be numbered beginning with 1 through to the last paragraph in the prayer.

Try to keep your paragraphs limited to one or two sentences, one element, and one issue. If you draft multiple issues or elements in one paragraph it can get confusing as to what you are trying to convey to the court.

When the facts in a case are reduced to writing there is usually some documentation that needs to be seen by the court that supports the litigant’s points. These documents are referred to in a motion as exhibits. Exhibits are offered as evidence during trial. For example, a document would be introduced in a motion or pleading by stating something to the effect of, A true and accurate copy of the Notice of Substitute Trustee Sale is attached hereto, and incorporated herein by reference as “Exhibit A”. As for introducing your evidence during trial there is an in court process which is explained in greater detain in my article titled Getting Your Evidence on the Record. All exhibits get their own cover page i.e. “EXHIBIT A” bold, font size 26 or larger, and located center would be the only thing on the page followed by the document being exhibited and both coversheet and exhibit are placed at the back of all of the documentation when it comes time to file the motion with the court.

After all of the elements have been laid out and satisfied in a motion a litigant would come to his conclusions. A section titled “CONCLUSIONS” is a summary of the case and the reasons why the court should agree with the defendant and grant his motion to dismiss the plaintiff’s petition. Now we’re ready to “move” the court.

We file a “motion” so we “move” the court. Here we would move the court to dismiss, a plaintiff’s petition and we do this in our “prayer”. Many litigants title this section of their motion “PRAYER FOR RELIEF” or just simply, “PRAYER” For personal reasons I prefer “RELIEF SOUGHT”. Which ever way one would choose to title this section this is where one asks for what he wants or ‘move the court’ to give him what he wants. This can be as easy as two paragraphs such as;

.  43.   Defendants re-allege and incorporate by reference all preceding paragraphs as though fully set forth herein.

.  44.  WHEREFORE, the Defendant herein having shown cause to dismiss, respectfully moves this Honorable Court to issue an order dismissing the Plaintiff’s forcible detainer action with prejudice, and upon presentment of an order stating the same granting any such other and further relief as this Court deems just and proper.

A signature line goes after the prayer for relief and would include a line for a signature; type written name directly under the signature line, under which all contact information should be offered, email addresses notwithstanding. The signature line is usually located at the right side of the document.

Most jurisdictions require all motions to be verified. Verification is legal term for notarized and a motion should always be signed before a notary and under the penalty of perjury. Sometimes called a, “jurat” the verification would state at least the following,

STATE OF INSANITY            )
.                                                      )
COUNTY OF WHATEVER  )

SUBSCRIBED AND SWORN TO BEFORE ME, by John Doe, this           day of                        , 2014, to certify which witness my hand and seal of office to state as follows;

I John Doe, the Defendant in the above numbered and styles cause state under the penalty of perjury that all facts and statements attested to herein are true, accurate, and correct.

                                                          
Notary Public In and For the
State of Insanity

My Commission Expires:                            

It’s always a good idea to make at least three copies of anything that is going to get filed in a court case once it is verified. The original is for the court, the second copy is for the other side, and the third is to keep for your own records as a working copy. The clerk will only file one copy, but they will stamp as many copies you wish. A file stamped copy of everything that went into the court should be sent to the other side as set forth in the certificate of service which goes on a separate piece of paper. A certificate of service would look like the following example.

CERTIFICATE OF SERVICE

       I certify that on the       day of                       , 2014 I served a copy of the Defendant’s Original Answer, and Motion to Dismiss upon the Plaintiff, Big Powerful Nasty Bank N.A., through their counsel, Dewey, Cheatum & Howe located at the address listed below as follows:

Dewey, Cheatum & Howe
12345 Owtagechya Blvd, Ste: 100
Scruyaville, FL. Zip.

By means of Certified U.S. Mail. # 7499 9375 0002 1844 5849

_________________________
John Doe

Once a file stamped copy is in the mail to the other side you’re done until time for hearing. I hope this helps.

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